Allahabad High Court
Vijai Shankar Saini vs Deputy Registrar, Co-Operative ... on 6 December, 1996
Equivalent citations: (1997)1UPLBEC262
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. Sri S. N. Srivastava, learned counsel for the petitioner contends that the service of the petitioner with respondent No. 3 in the post of Salesman was dispensed with by an order dated 30-6-1987. He has challenged the said order on the ground that the termination was effected persuant to a letter issued by the Deputy Registrar Co-operative Societies, Varanasi being letter dated 25-6-1987 and the oral instruction dated 30-6-1987 given by the Additional District Officer, Co-operative Societies, Rosra, being the foundation of the order of termination, without any resolution of the Co-operative Societies, can not be sustained.
2. Sri R.K. Saxena, learned counsel for the respondents, on the other hand contends that the petitioner is not governed by any statutory rules governing his condition of service. Admittedly, he is not a member of Centralised service. Admittedly the Co-operative Society is operating within the district by reason whereof rules governing the service of the employees of Co-operative Societies can not be applicable in the case of the petitioner. Therefore, the writ petition is not maintainable on two fold grounds, namely (i) that the Co-operative society is not a State within meaning of Article 12 of the Constitution and, therefore, no writ lies against it, (ii) that the relations between the society and the petitioner being contractual one and not governed by the statutory rules, the relationship being purely contractual in nature the same can not be enforced through invocation of writ jurisdiction.
3. Admittedly, as has been held by this court in the case of Ram Lakhan Pathak v. District Assistant Registrar, Co-operative Society Kanpur and Ors., 1996 AWC 20 relying on the Full Bench decision in the case of Radha Charan Sharma v. Co-operative Federation and Ors., 1982 ALR 342 (FB) that the Co-operative Society is not a State within the meaning of Article 12 of the Constitution, therefore, no writ can lie against the Co-operative Society.
4. Admittedly, the Co-operative Society is operating within the district. Therefore U. P. Co-operative Employees Service Regulation, 1975 can not apply in the case of the petitioner an employee of such society which operates within the district. Therefore, the relationship between the petitioner and the Co-operative Society is purely contractual one and while taking any action against the petitioner relating to the conditions of service of the petitioner the society is not performing any statutory duty or obligation making it amenable to writ jurisdiction. A private contractual right can not be enforced by invoking writ jurisdiction.
5. Similar view was taken by me in the case of Maiku and Anr. v. The District Assistant Engineer, Co-operative Societies, Hamirpur and Ors., Civil Misc. Writ Petition No. 15223 of 1987 disposed of on 2nd December 1996.
6. The submission of Sri S.N. Srivastava, learned counsel for the petitioner that since the order has been founded on the letter of Assistant Registrar, Co-operative Societies, and the Additional District Co-operative Officer, therefore, the order is in disgise an order passed by the said Officer. The order having been passed by the Secretary without any resolution of the society is in effect an order passed by the said Government officer and by reason thereof the order become amenable to writ jurisdiction.
7. Such submission of the learned counsel for the petitioner appears to be devoid of merit for the simple reason that it is the relation between the society and the petitioner which is being sought to be enforced. Even if the order has been passed pursuant to the letter and instruction referred to above, the same does not improve the relationship between the petitioner and the society to that of a legal right public duty relationship. The relationship remains a contractual relation, entered into in private capacity non-amenable to writ jurisdiction. The termination may be void one or bad one on the face of it, but because of legal position that relations being contractual one and private too the same can not be interfered with through writ jurisdiction though alternative remedy may be available before the Civil Court or Industrial forum for establishing his right.
8. In that view of the matter the petition is not maintainable and is accordingly dismissed. This order, however, shall not prevent the petitioner from seeking appropriate relief either before the Industrial forum or before the Civil Court, as he may be advised. If such relief is sought for the petitioner shall be entitled to exclusion of the period taken in perusing the present petition before this court for the purposes of calculating limitation or delay as the case may be in terms of Section 14 of the Limitation Act.
9. There will, however, be no order as to costs.