Prakash Kumar v. The State of Bihar

The State of Bihar. The Secretary, Food and Consumer Protection Department, Government of Bihar, Patna. The Managing Director, BISCOMAUN, Biscomaun Bhawan, West Gandhi Maidan, Patna-800001 The District Manager, State Food Corporation, Gopalganj. The Regional Provident Fund Officer, Employees Provident Fund Organization, R Block, Patna. ====================================================== Appearance : ... ... Respondent/s For the Petitioner/s :

Mr. Alok Kumar, Advocate. For the BISCOMAUN : Mr. Ashish Giri, Advocate. Ms. Riya Giri, Advocate. For the Respondent EPFO: Mr. Anand Kumar Ojha, Advocate. For the Respondent/s : Mr. Upendra Pratap Singh, AC to SC 4. ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 29-11-2022 Heard Mr. Alok Kumar, learned counsel for the petitioner, Mr. Ashish Giri, learned counsel for the respondent BISCOMAUN, duly assisted by learned counsel Ms. Riya Giri, Mr. Anand Kumar Ojha, learned counsel for the respondent EPFO and Mr. Upendra Pratap Singh, learned AC to SC 4 for the State. At the outset, learned counsel for the BISCOMAUN raises preliminary objection with regard to maintainability of the Patna High Court CWJC No.11849 of 2021 dt.29-11-2022 writ application in view of the judgment rendered by the Special Bench of this Court, in the case of “Organiser Dehri CD & CM Union Vs.

State of Bihar & Ors.” reported in 2014 (1) PLJR 695, whereby, learned Special Bench held that the writ is not maintainable against the co-operative societies even if it runs by an administrator, who might be a Government servant, in case of non- existence of managing committee. In fact in a similar matter, where the wife(s) of the deceased employees preferred writ petitions for payment of death- cum-retiral benefits of their late husband(s), the learned Co- ordinate Bench of this Court further in the case of “Anita Kumari Vs. State of Bihar & Ors., along with Shahbaz Begam Vs. State of Bihar & Ors.” reported in 2016 (1) PLJR 315 held that BISCOMAUN is a society registered under the Bihar Co-operative Society Act and not a “State” within the meaning of Article 12 of the Constitution of India and therefore, the present writ petition is not maintainable against the respondent BISCOMAUN. It would be apt to quote para 7, 8 and 13 of the said judgment, which is as follows: “7.

In the considered opinion of this Court, once it is an admitted fact that BISCOMAUN is a society registered under the Bihar Co-operative Society Act and that not only earlier Division Bench of this Court in the case of Harendra Narain (supra) even Full Bench Patna High Court CWJC No.11849 of 2021 dt.29-11-2022 judgment in the case of Rajendra Prasad (supra) had also held BISCOMAUN not to be a “State” within the meaning of Article 12 of the Constitution of India, there would be no difficulty in accepting the preliminary objection of the respondents as with regard to the writ petitions being not maintainable. In this regard, paragraph nos. 12 to 14 of the Full Bench judgment of this Court in the case of Rajendra Prasad Sah (supra) becomes relevant and is quoted hereinbelow : - “12. At this stage, it is very important to bear in mind that the Biscomaun itself underwent a very basic change in its legal status.

As its name suggests, it is a co-operative society registered under the Bihar Co-operative Societies Act, 1935 and its management used to be vested in a managing committee, as provided under Section 14 of the Co-operative Societies Act. On 31.7.1988 its managing committee was superseded under Section 41 of the Act and an Administrator was appointed in its place to carry on the business of the Society. Before the supersession of the managing committee and appointment of an Administrator in its place, the Biscomaun was held to be neither an authority nor an instrumentality or agency of the State. It followed, therefore, that it was not amenable to the writ jurisdiction of this Court (See Harendra Narain Banker v. State of Bihar, 1985 PLJR 1078).”

From the reading of the Full Bench judgment of this Court in the case of Rajendra Prasad Sah (supra), it would be very much clear that the writ petition will not be maintainable against BISCOMAUN, save and except, when BISCOMAUN is under supersession and is being under the control of the State Government and its officials. Thus, there being no ambiguity in the law laid Patna High Court CWJC No.11849 of 2021 dt.29-11-2022 down by the Full Bench of this Court in the case of Rajendra Prasad Sah (supra), it is not open for any other smaller bench of this Court including me to take a different view, inasmuch as, this Court is bound by the decision of the Full Bench Judgment. As a matter of fact, this Court is also party to a Division Bench judgment dated 16.03.2010 passed in L.P.A No. 490 of 2010, (Chinta Devi v. the State of Bihar) wherein, the dismissal of the writ petition by learned single judge on the ground that it was not maintainable in view of the judgment of the Full Bench in the case of Rajendra Prasad Sah (supra) was approved.