Gauhati High Court
Abdul Basit vs Registrar, Co-Operative Societies, ... on 26 July, 2006
Equivalent citations: (2007)1GLR176
JUDGMENT A.B. Pal, J.
1. The petitioner was appointed as Manager of Pally Mangal Prathamik Krishi Samabay Samity Ltd. (for short, 'Samity'), a Cooperative Society registered under the Tripura Co-operative Societies Act, 1974 (for short, 'Act') by the President of the said Samity on a fixed monthly pay of Rs. 175 following which he joined the post on 10.8.1979. The appointment of the petitioner had the approval of the Government of Tripura which was indicated to the said Samity by the Registrar of Co-operative Societies (respondent No. 1) by letter dated 24.7.1979. Since 10.8.1979 when he joined the post, the petitioner served the Samity uninterruptedly for a period of 16 years whereafter due to certain ailments, he had applied for leave from 5.9.1996 to 30.9.1996 to the President of the Samity. The said leave application was not acted upon and, therefore, on 23.9.1996, the petitioner submitted another application whereafter the President (respondent No. 2) on the body of the said application sanctioned leave till 20.11.1996. But on 5.11.1996, the said President issued a show cause notice to the petitioner to explain his long absence without permission and without handing over charge to any other employee causing thereby disruption in the functioning of the consumer shop of the said Samity. On 7.11.1996, the petitioner submitted his reply stating that he was absent on ground of illness after submitting leave application and, therefore, the charge of unauthorized absence was not correct. He also pointed out that his prayer for leave was sanctioned by the President himself on his application dated 23.9.1996 which fact would establish that the charge of unauthorized absence was baseless. Though the period of sanctioned leave was till 20.11.1996, the petitioner resumed duties on 18.11.1996 and submitted joining report. But on 19.11.1996, the petitioner was informed that the said Samity by a resolution dated 19.11.1996 dismissed the petitioner from the service of the said Samity with immediate effect. By means of this writ petition, the petitioner has called in question the correctness and the legality of the said order of dismissal.
2. Though the Registrar of the Co-operative Society, the Samity and the five members thereof have been arrayed as respondents, only the Registrar by filing a counter affidavit advanced his contention admitting that the dismissal of the petitioner by the Samity was done without observing legal formalities. The Registrar himself asked the Samity to re-instate the petitioner by several correspondences, but the same was not complied with. Though it has been admitted that the Registrar accorded approval of the selection of the petitioner, the actual appointment was issued by the President of the Samity who is the ultimate authority with regard to the appointment and other matters of the persons employed in connection with the affairs of the Samity. Thus, the order of dismissal of the petitioner by the Samity has not found support from the first respondent. Though the other respondents including the Samity were duly served and they entered appearance through their counsel as indicated by the office notes, but none of them filed any counter affidavit.
3. I have heard Mr. B. Das, learned senior counsel assisted by Mr. P.S. Chakraborty, learned Counsel for the petitioner. Also heard Mr. T.D. Majumder and Mr. P. Deb Roy, learned Counsel for the respondents.
4. Before adverting to the issue regarding legality and correctness of the order of dismissal impugned, it is necessary to deal with the first and foremost question whether the present writ petition against a Cooperative Society is maintainable or not. Admittedly, the second respondent is a Registrar under the Act. Section 38 of the Act provides that "the registration of a Society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seat, and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings, and to do all such things as are necessary for the purpose for which it is constituted". The Samity is, thus, a body corporate having distinct legal entity and juridical personality. The question that now confronts is whether such a Society can be said to be an instrumentality of the State. On several occasions, the Apex Court had to address similar question whether a Co-operative Society is covered within the definition of article 12 of the Constitution of India which may be briefly noticed for seeking an answer to the question posed.
5. In Ajay Hasia v. Khalid Mujib Sehravardi , the Apex Court laid down a set of principles to determine whether a corporate body is an authority within the meaning of article 12 of the Constitution. The relevant observations appearing in paras 11 and 12 read, thus:
11. We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an 'authority' within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article 12.
12. It is also necessary to add that merely because a juristic entity may be an 'authority' and therefore, 'State' within the meaning of Article 12, it may not be elevated to the position of 'State' for the purpose of articles 209,313 and 311 which find a place in Part XIV. The definition of 'State' in Article 12 which includes an 'authority' within the territory of India or under the control of the Government of India is not limited in its application only to Part III and by virtue of Article 36, to Part IV, it does not extend to the other provisions of the Constitution and hence a juristic entity which may be 'State' for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. That is why the decisions of this Court in S.L. Aggarwal v. Hindustan Steel Ltd. , and other cases involving the applicability of article 311 have no relevance to the issue before us.
6. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology , the Constitution Bench judgment in Ajay Hasia (supra) was explained and multiple test for determining whether a particular Corporation or body can be held to be included within the definition of "State" under article 12 of the Constitution, were laid down. It was observed in para 11 that "initially, the definition of "State" was treated as exhaustive and confined to the authorities or those which could be read ejusdem generis with the authorities mentioned in the definition of Article 12 itself. The next stage was reached when the definition of "State" came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature. Thus, a statutory corporation, with regulations framed by such corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute." Coming to the question whether any rigid test can be formulated for such determination the Apex Court further observed:
The picture that emerges from the case law is that the test formulated in Ajay Hasia for determining as to when a Corporation can be said to be an instrumentality or agency of the Government are not a rigid set of principles so that if a body falls within anyone of them, it must, ex hypothesis, be considered to be a State within the meaning of article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found, then the body is a State within article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
7. Following Pradeep Kumar Biswas (supra) and Ajay Hasia (supra), the Apex Court in Gurcharan Singh v. Registrar, Cooperative Societies, H.P. reported in 2005 AIR SCW 5031 reiterated the same principle that facts in each case has to be judged separately to see whether the body is under pervasive control of the Government financially, functionally and administratively. Mere regulatory control would not render such body an authority within the meaning of article 12 of the Constitution.
8. In the light of the above legal position, it is now necessary to examine whether in the case on hand, the Samity which is a corporate body can be said to be a "State" within the meaning of article 12 of the Constitution to decide the question whether writ jurisdiction of this Court can be invoked against the Samity. The petitioner has claimed that though he was appointed by the President of the Samity, his selection was approved by the State Government. This fact has not been denied by the first respondent who, however, clarified that such approval notwithstanding, every Co-operative Society is an autonomous institution the management of which is vested in a committee constituted in accordance with the provisions of the Act and the rules framed thereunder. The claim of the petitioner that his salary and allowances were borne by the State has again been denied in para 8 of the counter affidavit wherein it has been contended that the salary of the Manager of the said Samity was borne by the Society itself, though, however, the State Government has to provide managerial subsidy or grants to the Societies from time to time. It has been made clear that no prior approval of the State Government was obtained for dismissal of service of the petitioner by the management of the Samity. The Registrar, the first respondent herein contended in para 14 of the counter affidavit that the dismissal of the petitioner was not done after observing legal formalities and the management did not respond to several correspondences from the Registrar to re-instate the petitioner. Perhaps, the management of the Samity which is, as a matter of fact, a general body derives strength from Section 64 of the Act which provides:
64. Subject to the provisions in this Act and the rules, the final authority of every society shall vest in the general body of members in general Meeting, summoned in such a manner as may be specified in the byelaws.
Chapter IV of the Act contains provisions relating to duties and privileges of the Societies and Chapter VI contains provisions regarding fund, property, investment, etc. On all these matters, Society remains to be the final authority though under Chapter V, the Government may purchase shares (Section 53) and provide aid to the Societies (Section 54)
9. The cumulative facts noticed above would undoubtedly go to show that the Samity is not financially, functionally and administratively dominated by or under the control of the Government. Though Mr. Das has made strenuous effort to bring home the point that approval of the State Government for appointment of the manager is a distinct pointer about administrative control of the State Government over the Samity. I am not inclined to accept this argument in view if the fact that no approval of the State Government for dismissal of the petitioner had to be obtained by the Samity and the request from the first respondent to re-instate the petitioner was not obeyed, Thus, the approval of the State Government for appointment of the manager is only regulatory and such regulatory control cannot bring the Samity within the sweep of Article 12 of the Constitution.
10. For the reasons aforementioned, this writ petition against the Samity which is not an authority under Article 12 of the Constitution is not maintainable and, therefore, examination of the merit of the case is not at all called for. Under these circumstances, this writ petition having no merit stands dismissed without any order as to cost.