Bombay High Court
Pravinkumar R. Salian vs Chief Minister And Minister Of ... on 25 September, 2003
Equivalent citations: 2004(2)MHLJ12
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the petitioner and the respondent Nos. 1, 2, 3 to 6, 14 and 15. None present for the remaining respondents, though served. Perused the records.
2. The petitioner challenges the order dated 6th August, 2002 issued by the respondent No. 2 and the order and notice dated 7th August, 2002 issued by the respondent No. 3 on two counts. Firstly that, the respondent No. 2 was entitled neither under Section 79 of the Maharashtra Co-operative Societies Act, 1960, hereinafter called as "the said Act", nor under any of the provisions of the said Act or Rules framed thereunder to pass such an order nor to give directions which were given thereunder, and likewise the respondent No. 3 could not have issued the order and notice dated 7th August, 2002 either under any of the statutory provisions or even under the bye-laws of the society. Secondly that, the action on the part of the respondent No. 3 is clearly mala fide inasmuch as that the same is without application of mind and solely pursuant to the directions by the respondent No. 2 in that regard and further it discloses vindictiveness on the part of the respondent No. 3 consequent to the notice which was issued by the petitioner under the directions of the Board of Directors of the Society.
3. Placing reliance in the decision of the Apex Court in the matter of Steel. Authority of India, Successor of Bokaro Steel Limited v. Presiding Officer, Labour Court at Bokaro Steel City, Dhanbad and Anr., , the learned Advocate for the petitioner submitted that plain reading of the order dated 6th August, 2002 would disclose that the respondent No. 2 could not have issued any such direction under any of the provisions of law contained either in the said Act or in the Rules made thereunder, and for the same reason the respondent No. 3 could not have proceeded to take action against the petitioner in the manner it was sought to be taken in the order/notice dated 7th August, 2002. He has further submitted that the bye-laws of the society clearly require the Board of Directors to be the appointing or disciplinary authority and, therefore, the Chairman of Board of Directors alone had no authority to initiate either disciplinary proceedings or to issue suspension order against the petitioner. It is his further contention that the action of suspension as well as initiation of disciplinary proceedings were solely pursuant to the said directions, and the same clearly reveals to be mala fide and that the respondent No. 3 had acted in vengeance on account of the petitioner having issued notice to the said respondent in terms of the direction given to the petitioner by the Board of Directors. It is his further contention that the allegation in the notice dated 7th August, 2002 nowhere discloses misconduct of serious nature so as to warrant suspension of the petitioner. Reliance is also sought to be placed in the decision of the Division Bench of this Court in the matter of Khandesh Roller Flour Mills, through its Partner Mrs. Sheela w/o Kantilal Singhi v. The State of Maharashtra and Anr., . On the other hand, relying upon the decisions in the matter of Hindustan Steels Ltd. Rourkela v. Roy (A.K.) and Ors., reported in (1970) I LLJ 228 and The Shamrao Vithal Co-operative Bank Limited and Anr. v. Padubidri Pattabhiram Bhat and Anr., , it is sought to be contended on behalf of the respondents that though the order of suspension was issued pursuant to the directions by the respondent No. 2, the order to initiate disciplinary proceedings was not on account of any such direction but on account of misconduct on the part of the petitioner, and in that regard, the attention was also drawn to the notice dated 12th April, 2002 which was issued to the petitioner much prior to the order dated 6th August, 2002. It was further contended that the so called directions under Section 79 of the said Act by the order dated 6th August, 2002 were mere intimation by a statutory authority which is duty bound to supervise the functioning of the co-operative societies. It was also submitted that the decision on the part of the Respondent No. 3 was ratified by the Board of Directors and this fact was clearly stated in the affidavit-in-reply and was not disputed or denied by filing any counter-affidavit in that regard. It was further contended that the respondent No. 14 is not a State within the meaning of the said expression under Article 12 of the Constitution of India, and, therefore, there is no case made out by the petitioner to issue a writ against a private party. Merely by alleging that the disciplinary action has been taken pursuant to the direction by the respondent No. 2, the petitioner cannot seek relief from this Court in writ jurisdiction when the records apparently disclose that the action pertaining to the proceedings for disciplinary action was not pursuant to the direction by the statutory authority but on account of misconduct on the part of the petitioner and the society enjoys the ample powers to punish the petitioner for such misconduct.
4. It is to be noted that during the pendency of the petition, on the ground that the respondents proceeded with the domestic inquiry and even issued the order of dismissal; the petition was sought to be amended and was in fact amended seeking relief of setting aside the order of dismissal and further for the reinstatement. However, the learned Advocate for the petitioner has chosen to restrict his argument in relation to the orders dated 6th August, 2002 and 7th August, 2002 contending that the subsequent proceedings having been based on the said orders and if the said orders are themselves quashed and set aside, the entire proceedings are bound to be set aside.
5. The order dated 6th August, 2002, undoubtedly, refers to Section 79 of the said Act to be the source of power for issuance of the said order. It clearly states that the directions were issued in exercise of the powers vested in respondent No. 2 under Section 79 of the said Act and the directions were to the effect that the Bank should conduct a departmental inquiry against the petitioner and pending the hearing and decision in the said inquiry proceedings, the services of the petitioner should be suspended. There were further directions that to modify the Bank's Rules in respect of grant of loans and powers of the Chief Executive Officer in that regard in order to safeguard the interest of the shareholders and the depositors of the bank and for that purpose, to carry out the necessary amendment to the Society's Bye-laws and the Rules, and the said directions were required to be enforced immediately and the report of the implementation of the aforesaid directions was required to be submitted in the office of the respondent No. 2.
6. Section 79 of the said Act deals with the powers of Registrar to enforce performance of certain obligations. In terms of Sub-section (1) thereof, the Registrar may direct any society or class of societies to keep proper books of accounts in respect of all sums of money received and spent by the society, and in respect of all the receipts and expenditure, sale and purchase of goods by the society, the assets and liabilities of the society, and to furnish such statements and returns and to produce such records as may require from time to time, and that the officer or officers of the society shall be bound to comply with orders within the period specified therein. Sub-section (2) of Section 79 of the said Act makes it obligatory for the society to comply with such directions. Obviously, the provisions contained in Section 79 of the said Act in relation to the Registrar's power to seek enforcement of performance of obligations by the society are in relation to the maintenance of books of accounts and in relation to the receipts and expenditure by the society as well as in relation to the assets and liabilities thereof. The same nowhere relates to the disciplinary proceedings against the employees of the society. Undoubtedly, merely because the authorities refer to a particular provision as a source of power for issuance of an order, and merely because the order so issued happens to be not the one which can be covered by the provision of law mentioned in the order, even then such an order would not be rendered illegal if the source of power for issuance of such an order can be found in some other provision of law. However, the learned Advocate for the respondent Nos. 1 and 2 has fairly conceded that there is no provision in the said Act or the Rules made thereunder which could empower the respondent No. 2 to issue direction in relation to any disciplinary action to be taken against an employee of a co-operative society. The Advocate for the respondent Nos. 3 to 6 and 14 also had not been able to point out any provision of law in the said Act which could empower the respondent No. 2 to issue the directions for disciplinary action against or for suspension of the employee or employees of a co-operative society. Obviously, therefore, the respondent No. 2 had no authority and power to issue directions, regarding suspension of the petitioner or for initiating disciplinary proceedings against the petitioner. Hence, the order dated 6th August, 2002 to the extent it directed the society to initiate departmental proceedings against the petitioner or to suspend the petitioner cannot be sustained.
7. The order dated 7th August, 2002 in relation to the suspension of the petitioner and the initiation of departmental inquiry, undoubtedly, refers to the order and directions issued by the respondent No. 2 under his letter dated 6th August, 2002. However, the contention of the respondents is that the* said reference is only in relation to the order of suspension and does not relate to the decision for initiation of departmental inquiry. The first paragraph of the said order reads that "Pursuant to the orders and directives of the Commissioner of Co-operation and Registrar of Co-operative Societies, Maharashtra State, Pune, contained in his letter dated 6-8-2002 addressed to the undersigned under Section 79 of the Maharashtra Co-operative Societies Act, 1960 directing undersigned to suspend you from the services of the Bank pending inquiry, a copy of the said directive is enclosed herewith for your information, the undersigned hereby suspend you from the services of the Bank with immediate effect pending inquiry with effect from 7-8-2002 on the following amongst other charges..................."
After enumerating various charges, the last paragraph of the said order/notice reads that "You are hereby called upon to submit your written explanation in the matter within seven days of receipt of this letter, failing which it will be presumed that you have no explanation to offer and the matter will be dealt with on that basis. Pending receipt of your reply as aforesaid, you are hereby suspended from the services of the Bank with immediate effect (i.e. w.e.f. 7-8-2002). You are hereby required to handover the charge including all the properties, books, documents, registers and records etc. of the Bank to Mr. N.K. Surdas, Manager (Loans and Advances) forthwith."
8. Plain reading of the order/notice dated 7th August, 2002 therefore discloses that the same was issued pursuant to the order and directions by the respondent No. 2 under his letter dated 6th August, 2002. The order itself does not disclose that directions by the respondent No. 2 were followed only in relation to suspension of the petitioner and the decision regarding initiation of departmental proceedings was independent of such directions issued by the respondent No. 2. On the contrary, plain reading of the said order/notice discloses that both the actions, viz. order of suspension as well as the order of initiation of disciplinary proceedings, were pursuant to the directions issued by the respondent No. 2. It is also apparent that the suspension was not on account of departmental inquiry which is to be initiated but the was on account of the said order/notice, and as a result thereof, pending the inquiry, the petitioner was sought to be suspended.
9. The learned Advocate for the respondent Nos. 3 to 6 did contend that perusal of the charges disclosed in the order/notice dated 7th August, 2003 would reveal that they were the same charges which were levelled against the petitioner under letter dated 12th April, 2002 and that would disclose that the decision to initiate inquiry was not pursuant to the directions but it was a decision independent of such directions. Undoubtedly, by the letter dated 12th April, 2002, the respondent No. 3 had sought to initiate inquiry against the petitioner in relation to the various charges, numbering as many as eleven. By the said letter, the petitioner was also sought to be suspended with effect from 12th April, 2002. However, under the letter dated 17th April, 2002 issued by the respondent No. 3, it was informed to the petitioner that "Pursuant to the discussions had with the Directors of the Bank and considering the prime interest of the Bank in mind, while keeping the charges contained in the letter dated April 12, 2002 addressed to you in abeyance, the Suspension Order contained therein against you has been revoked. You are hereby advised to stop your arrogant attitude towards the Directors, Customers and the Staff Members. You are also advised to keep cordial relations with all of them and not to create any ill will or enmity with them. While assessing and recommending any credit proposals of the Shareholders, Branch Managers recommendations as per out policy decisions must be respected and discrimination must be avoided." The said letter dated 17th April, 2002 apparently discloses that the order of suspension which was sought to be issued under letter dated 12th April, 2002 on the charges specified therein was revoked. Simultaneously, it was informed that the charges levelled against the petitioner were kept in abeyance. However, the order/notice dated 7th August, 2002 nowhere discloses that the same was issued pursuant to reconsideration of the decision to keep the charges in abeyance or that the same was in continuation of the letter dated 12th April, 2002 after revoking the decision to keep the charges in abeyance or after withdrawing the letter dated 17th April, 2002. In other words, the order/notice dated 7th August, 2002 can, by no stretch of imagination, be said to be in continuation of or as a result of the earlier decision, if any.
10. Undoubtedly, some explanation in respect of the said order/notice dated 7th August, 2002 is sought to be given in the affidavit filed by the respondent no. 3. However, even assuming that there is any deficiency in the order dated 7th August, 2002, the same cannot be sought to be cured by way of an affidavit. The order dated 7th August, 2002 has to be understood on the basis of the contents thereof and not by way of explanation which is sought to be given now before this Court. The contention of the respondents that the order/notice dated 7th August, 2002 was independent of the directions issued by the respondent No. 2 is devoid of substance and cannot be accepted.
11. Once it is apparent that the decision to suspend and to initiate inquiry was merely pursuant to the directions issued by the respondent No. 2, purportedly issued under Section 79 of the said Act, mere similarity between the charges mentioned in the order dated 7th August, 2002 and those which were disclosed in the earlier letter dated 12th, April, 2002 would not be sufficient to conclude that the said order dated 7th August, 2002 was not issued in furtherance of the directions issued by the respondent No. 2 in that regard.
12. The petitioner has also contended that in any case the respondent No. 3 had no power either to issue order of suspension or to initiate disciplinary proceedings against him and in that regard the attention is drawn to the bye-laws of the respondent No. 14-Society. There is no dispute that the Model Bye-laws are adopted by the respondent No. 14. The Bye-law No. 36 thereof deals with the powers and functions of the Board of Directors of a Society. Clause (xv) thereof empowers the Board of Directors to consider proposals for creating posts of officers and junior and other staff on the Bank's establishment and to frame rules, prescribing the procedure for filling the vacancies either by direct recruitment or by promotion from the existing members of the staff and fix their qualifications, scales of pay and allowances, and regarding disciplinary action against erring employee etc. Clause (xvi) empowers the Board of Directors to appoint a Chief Executive Officer as per the provisions of Bye-law No. 40(A) for efficient conduct of the bank's business and to fix his remuneration. Clause (xxix) empowers the Board of Directors to make, alter, rescind or abrogate the rules from time to time in relation to the various items which include under item (e) 'recruitment of the staff', and item (f) 'service condition of the staff'. Further, it provides that the approval of the General Body shall be obtained in respect of election rules and approval of the Registering Authority shall be obtained in respect of the Rules regarding recruitment and service conditions of the staff. Bye-law No. 39 deals with the powers and duties of the Chairman and in terms of clause (i) thereof, it empowers the Chairman to preside over the General Meeting, meeting of the Board of Directors, Sub-Committee Meetings and meetings of any other Committee, and clause (ii) thereof empowers the Chairman to supervise the general working of the bank. Bye-law No. 40(A) relates to the office of the Chief Executive Officer. It provides that the Chief Executive Officer shall be selected and appointed by the Board of Directors of the Bank in accordance with the Recruitment Rules framed under the provisions of Bye-law No. 36(xxix). The powers and duties of the Chief Executive Officer also include the power to take disciplinary action against the bank's staff in accordance with the Service Rules/Standing Orders. The term "Chief Executive Officer" has been defined under Bye-law No. 4(viii) to mean the Managing Director appointed by the Board of Directors and if a Managing Director is not appointed, then the General Manager or Manager or Secretary appointed by the Board of Director of the bank to be the Chief Executive Officer. The termination of services of the Chief Executive Officer shall be in accordance with the service Rules framed by the Board of Directors under the provisions of Bye-law No. 36 (xxix)(f). Clause (B) of Bye-law No. 40 deals with the powers and duties of the Chief Executive Officer. It provides that the powers and duties of the Chief Executive Officer, who is responsible for the Board of Directors, shall be, as enumerated thereunder, and Item No. (i) relates to the action to be taken on the resolutions and decisions taken by the General Body and Board of Directors, item No. (ii) relates to the convening of the meetings of the General Body, Board of Directors, Sub-Committee and to attend and cause to record minutes of all the meetings in the Minutes Book and to sign the same along with the Chairman of the Meeting, item No. (iii) relates to the correspondence to be conducted on behalf of the Bank, and item (xviii) thereof relates to exercise of such other powers and discharge of such other duties as may be delegated or entrusted to him by the Board of Directors or by the Chairman.
13. The above provisions of the Bye-laws of the Society Respondent No. 14 therefore clearly reveal that the termination of services of the Chief Executive Officer has to be in accordance with the service Rules framed by the Board of Directors. Apparently, Bye-law No. 36(xxix) empowers the Board of Directors to frame the service rules and such service rules require an approval of the authority under the said Act. This apparently discloses that the powers relating to the disciplinary proceedings against the Chief Executive Officer are to be exercised in accordance with the service rules framed by the Board of Directors with the approval of the Authority under the said Act. The learned Advocate for the respondent Nos. 3 to 6 has also sought to draw the attention to the service rules stated to have been framed by the Board of Directors and it appears that those were approved by the Deputy Registrar of Co-operative Societies, Bombay, on 16th July, 1976. Those rules are in relation to the employees of the bank and the term 'Employee' has been defined in the rules to mean an employee employed in the bank. Apart from the said definition of an employee, the said rules nowhere disclose that the same are relating to the post of the Chief Executive Officer. It is to be noted that, as already observed above, the term "Chief Executive Officer" has been specifically defined under the Bye-laws and further in spite of the provision under Bye-law No. 36(xxix) which empowers the Board of Directors to frame service rules regarding the staff members of the Society, specific provision is made under Bye-law No. 40(A) in relation to the powers of the Board of Directors to make rules pertaining to the recruitment of Chief Executive Officer as well as regarding the termination of services of the Chief Executive Officer. There is neither any reference to the service conditions of the Chief Executive Officer in the service regulations framed by the Society nor there are any separate rules framed by the Board of Directors in exercise of powers under Bye-law No. 40(A) read with Bye-law No. 36(xxix)(f) of the Bye-laws. It is also to be noted that in terms of Bye-law No. 29(b)(iv) thereof, the Chief Executive Officers shall be an "Ex-Officio" member of the Board of Directors. Apparently, the Chief Executive Officer is not treated at par with the staff members of the Society while referring to the said expression "staff in Bye-law No. 36(xxix) and that is why there is a specific provision in relation to the powers of the Board of Directors to frame service conditions in relation to the post of Chief Executive Officer under Bye-law No. 40(A). Apparently, the service regulations which are sought to be brought to the notice of the Court in the course of argument by the learned Advocate for the respondents are of no relevancy in the matter. Bye-law No. 40(A) apparently discloses, in the absence of specific rules being framed, the power vests with the Board of Directors to deal with the issue of termination of services of the Chief Executive Officer. Undoubtedly, the order/notice dated 7th August, 2002 was issued by the respondent No. 3. Neither it is the case of the respondents that the said order was issued pursuant to the decision of the Board of Directors to initiate disciplinary action against the petitioner and/or suspend him, nor the said order on the face of it discloses to have been issued pursuant to any decision in that regard by the Board of Directors nor any document has been brought to the notice of this Court which can disclose prior to the issuance of order/notice dated 7th August, 2002, that there was any decision by the Board of Directors either to issue suspension order or to initiate disciplinary proceedings against the petitioner. In other words, on 7th August, 2002 when the said order/notice was issued by the respondent No. 3 to the petitioner, there was neither any decision by the Board of Directors for issuance of suspension order nor for initiation of disciplinary proceedings against the petitioner. On the contrary, it is the specific case of the respondents that the action on the part of the respondent No. 3 was ratified subsequently by the Board of Directors, though, it is sought to be contended that a specific statement on oath made by the respondents in that regard has not been challenged or denied by the petitioner. The issue of ratification of any such order is not merely an issue of law or of fact alone, but it is a mixed question of law and fact. Mere failure on the part of the petitioner to challenge the said statement made on oath by the respondents will not lead to a conclusion that in fact there was a valid and lawful ratification by the Board of Directors in relation to the said order/notice issued by the respondent No. 3.
14. It is well settled that for the purpose of ratification, the action by a person must have been taken or done on behalf of the ratifying person, and not on his own behalf or on behalf or at the instance of someone else. It is only when a person takes any action on behalf of some other person, that such other person can ratify the action of the former and not in a case where the former takes the action on his own behalf or for someone else. In Keighley Maxsted & Co. v. Durant (carrying on business as BRAYAN Durant & Co., reported in (1901) A.C. 240, dealing with the doctrine of ratification, while referring to the ruling of Jindal CJ. in Wilson v. Tumman. (6 M and Gr. 236), to the effect that "That an act done for another by a person not assuming to act for himself but for such other person, though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is known and well established rule of law. In that case, the principal is bound by the act, whether it be for his detriment or advantage, and whether it be founded on a tort or a contract, to the same extent as by, and with all the consequences which follow from the same act done by his previous authority." It was held that the principal limitation to the doctrine that a person can, by ratifying another's act, render that act on his own in law, lies in the rule that a person cannot be said in law to ratify another's act, unless that other, in doing the act, purported or assumed, or intended to do it as such persons agent, and this rule applies equally whether the doctrine of ratification is invoked to enable a person to take the benefit of an act, or to render him liable therefor as a principal, or justify an act as done by lawful authority. A person who does an act on his own behalf cannot afterwards justify it as done on behalf of another or rely on the other's subsequent assent to such act. Certainly, the ratification by a person of what has been already done in his name or what has been done on his behalf, even though was without his prior specific authority, can have a retrospective effect and can be treated as equivalent to his previous consent.. When an act is done in the name of a person and for his benefit and in his interest, but without his knowledge or specific consent in that regard, by some other person, then the subsequent ratification by the person, on whose behalf the act was done, would render the act as much his own as if he had originally authorised the same to such other person. However, a person who does an act on his own behalf cannot afterward justify it as having been done on behalf of another or even rely on the other's subsequent assent to such act, more particularly when a right accrues in favour of a third party on account of absence of previous authority from other person to the person who had performed the action.
15. Once it is seen that the order/notice issued on 7th August, 2002 did not disclose that the said action was on behalf of the Board of Directors of the Society, and on the contrary it discloses to be the order of the respondent No. 3 pursuant to directions by the respondent No. 2, it is not permissible to the respondents to contend that the action taken by the respondent No. 3 was ratified by the Board of Directors. Further, it is to be noted that the claim of ratification is not supported by any documentary evidence. It is merely a claim by the respondent No. 3. The learned Advocate for the respondent has not pointed out single piece of document which can reveal act of the ratification on the part of the Board of Directors. For valid ratification, three conditions must be satisfied. Firstly, the person whose act is sought to be ratified must have acted for the other; secondly, the other person on whose behalf the act was performed by the former, must be a competent person to perform the act which has been performed and must continue to be so competent legally even at the time of ratification, and thirdly, the person ratifying the act do so with full knowledge of the act ratified. All these conditions should be established by cogent materials to be placed on record by the person who wants to claim the benefit of ratification. In the case in hand, apart from mere claim of ratification, no material is placed on record to establish such claim of ratification of the action of the respondent No. 3 by the Board of Directors.
16. In Steel Authority of India v. Presiding Officer (supra), the respondents case therein was that it was appointing authority, namely the Personnel Manager, was the disciplinary authority and as such was competent to frame the charges and to constitute the inquiry committee and the Chief Medical Officer who had exercised those powers in the said case had no authority to do so. While confirming the view taken by the High Court in that regard on the reading of the rules, the contentions to the contrary which were sought to be raised on behalf of the Management were rejected by the Apex Court. Certainly, the petitioner is justified in relying upon the said decision in the matter in hand, as the rules relating to the powers of disciplinary proceedings clearly reveal that those powers are with the Board of Directors, whereas the same were sought to be exercised by the respondent No. 3 while issuing the order/notice dated 7th August, 2002, which was clearly in violation of the rules relating to the service conditions of the Chief Executive Officer.
17. It was strenuously argued on behalf of the respondents that the conduct of the petitioner was such that there was no option left to the respondents but to take action which was sought to be taken in the order/Notice dated 7th August, 2002, and in that regard, the attention was drawn to the decision in the matter of Hindustan Steels Ltd. v. Roy (A.K.) and Anr. case (supra), wherein it was observed that "But what was relevant, at the stage when the Tribunal came to decide what workman was entitled to, was the question whether the Management genuinely apprehended as a result of the report that it would be risky to retain the workman in the company's service. They may have gone in the manner of terminating the workman's service as held by the Tribunal. But, if the Management truly believed that it was not possible to retain the workman in the company's service' on grounds of security and consequently could not place confidence in him any longer, the present case would one of those exceptionable cases where the general rule as to reinstatement could not properly be applied. In other words, it did not relate to the absence of power to take action of termination of the employee but essentially relate to the propriety of such action in a given case. The propriety of action is different from absence of power to take action. Secondly, it relates to the action by the Management and not merely by the Chairperson of Management. Being so, the observations of the Apex Court in Hindustan Steel's case (supra), are of no help to the respondents to justify, the illegal action. That apart, the Apex Court has further ruled therein thus :-- "this of course does not mean that in every case where the employer says that he has lost confidence in the workman, and therefore, has terminated his service that reinstatement cannot be granted and the tribunal has to award compensation." In other words, it will all depend upon the facts of each case. Besides, the question of considering the issue of reinstatement of the workman can arise only when there is irregularity in the termination. But as rightly submitted by the learned Advocate for the petitioner, such a question cannot arise where the entire proceedings are ab initio void and bad in law. Once it is held that the initiation of disciplinary proceedings is ab initio void and bad in law, the status quo ante the initiation of the disciplinary proceedings has to be restored.
18. The learned Advocate for the petitioner is also justified in drawing attention to the decision in Khandesh Roller Flour Mills v. The State of Maharashtra's case (supra). Therein the Division Bench of this Court has held that the situation of non-application of mind by the authority concerned can arise not only when it does not consider the matter itself, but also when he exercises the discretion under the dictation of superior authority. As already observed above, here is the case wherein the respondent No. 3 who himself had no power to initiate disciplinary action against the Chief Executive Officer, and action was taken merely taking shelter of directions which were issued purportedly under Section 79 of the said Act by the respondent No. 2. As the respondent No. 2 had neither any authority to issue any such direction nor the respondent No. 3 could have acted either under such directions or otherwise by himself to take any such action against the petitioner, the order to initiate disciplinary proceedings against the petitioner or to suspend the petitioner by the respondent No. 3 is to be held as totally contrary to the provisions of law, and therefore bad-in-law and void ab initio.
19. As last attempt to non-suit the petitioner, a decision of the Full Bench of this Court in Shamrao Vithal Co-operative Bank's case (supra) was sought to be relied upon to contend that the respondent No. 3 being not the State, the action cannot be subjected to judicial review by way of writ petition, and further for issuance of a writ against him -- the respondent No. 14. In Shamrao Vithal Co-operative Bank's case (supra), it was held that Multi-State Co-operative Bank registered under Maharashtra Co-operative Societies Act, 1960 and Multi-State Co-operative Societies Act, 1984 is not a "State" within the meaning of Article 12 of the Constitution of India though it is governed by the Banking Regulations Act, 1949 and it performs public functions, and therefore is not amenable to writ jurisdiction.
20. The Apex Court in U. P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors., , after taking note of the various decisions on the aspect where the co-operative societies can be amenable to writ jurisdiction, while approving the decision of a Full Bench of the Andhra Pradesh High Court in Sri Konaseema Co-operative Central Bank Ltd., Amalapuram v. N. Seetharama Raju, reported in AIR 1990 A.P. 171, wherein it was held that the writ petition lies against the co-operative societies, it was observed thus :-- "After examining various decisions and treaties on the subject it was stated that even if a society could not characterised as a State within the meaning of Article 12 even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a person or an authority within the meaning of Article 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty."
21. It was further held by the Apex Court in Ram Sahan Rai v. Sachiv Samanaya Prabandhak and Anr., that "the status of the said Bank is, no doubt, of a co-operative society, registered under the U.P. Co-operative Societies Act, 1965 and is constituted under the U.P. Co-operative Land Development Bank Act, 1964. But an examination of different provisions of the rules, bye-laws and regulations, unequivocally indicates that the State Government exercises all-pervasive control over the Bank and its employees are governed by statutory rules, prescribing an entire gamut of procedure of initiation of disciplinary proceedings by framing a set of charges and culminating in inflicting of appropriate punishment, after complying with the requirements of giving a show-cause and an opportunity of healing to the delinquent, this being the position and in view of the judgment of this Court in U.P. State Co-op. Land Development Bank Ltd. v. Chandra Bhan Dubey the conclusion is irresistible that the defendant Bank is undoubtedly an instrumentality of the State."
22. In Sri Anadi Mukta Sadguru Shree Muktayee Vandasjiswami Suvarna Jayanti Mahotasav Smarak Trust and Ors. v. V.R. Rudani and Ors. , it was held that "When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-aided protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party." It was further held that "The Words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exist mandamus cannot be denied." Further, it was specifically ruled, that:--
"Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting' on the development of this law, professor De Smith States :
"To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed.p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. 'Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found.' Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
23. Undoubtedly, in the case in hand, it is nobody's case that the respondent-bank is an instrumentality of the State. However, at the same time, it cannot be ignored that the action against the Chief Executive Officer cannot be taken without following the procedure as prescribed in the Service Rules and Bye-laws of the society. The provisions of law and the Bye-laws disclose that the service conditions required the recognition and approval of the Registrar of the Co-operative Societies. In other words, as regards the procedure to be followed by the respondent-society, for any disciplinary action to be taken against the Chief Executive Officer of the bank, there is a decisive control of the Registrar appointed under the said Act. Added to this, every co-operative society is subject to certain supervisory powers by the Registrar. The provisions contained in Sections 84 to 88 of the said Act clearly reveal the same. There are also powers for taking appropriate steps to ensure proper management in relation to the financial matters of a society and in case of any failure in that regard to take appropriate action by the authorities under the said Act. Being so, any disciplinary action against the Chief Executive Officer has to be in compliance with the service conditions under the Rules framed which require recognition and approval by the statutory authorities. On such approval, the rules would require due compliance thereof in case of termination of services of the employees including the Executive Officer as the obligation of the Management under such rules would partake the nature of public duties, and therefore, failure to observe such duties would amount to non-compliance of the statutory obligation and would be amenable to writ jurisdiction. Viewed from this angle, the decision of the Full Bench of our Court is of no help to the respondents to contend that the petitioner is not entitled for a writ against the respondent No. 3, apart from the fact that the action on the part of the respondent No. 3, as already observed above, was entirely pursuant to the direction of the respondent No. 2, and therefore, on that count the decision of the Full Bench of our Court is of no help to the respondents, to contend that no writ would lie against the respondent No. 3. The action of the respondent No. 3 being on direction by the respondent No. 2 who is admittedly the statutory authority, the contention regarding maintainability of writ petition against the respondent No. 3 and 14 is devoid of substance.
24. For the reasons stated above, therefore, the petition succeeds. The impugned order dated 6th August, 2002 and 7th August, 2002 are hereby quashed and set aside, and for the same reason the proceedings initiated against the petitioner are to be held as bad-in-law, and consequently the same are also hereby quashed and set aside, the petitioner is held to be entitled for restoration of status quo ante the impugned orders as regards his employment with the respondent No. 14-society and consequently for continuity in service from the date on which the impugned orders were issued with all consequential benefits including the salary. Rule is made absolute with costs.
25. At this stage, the learned Advocate for the respondent Nos. 3 to 6 requests for stay of this order. The same is objected by the learned Advocate for the petitioner. However, I am inclined to grant stay to this order for a period of three weeks from today, however, in relation to the direction for reinstatement and release of benefits of consequential to the reinstatement.