Ajit Kumar v. The State of Bihar

Patna High Court CWJC No.1039 of 2013 (2) dt.12-02-2013 operative Society and the impugned order has been passed by the Managing Director of the Bihar State Milk Co-operative Federation Ltd. (in short COMFED), which according to him is also a Co-operative Society. It is contended by the learned counsel that the Co-operative Society is not a State within the meaning of Article 12 of the Constitution of India. Therefore, the present writ petition is not maintainable before this Court. In support of his above contentions, he has placed reliance on a Full Bench judgment of our own High Court in the case of Vidya Bhushan Singh Abhai vs. The Bihar State Co-operative Milk Producer’s Federation Ltd. & Ors. [2010 (4) PLJR 26] as also on a Full Bench judgment of the Jharkhand High Court dated 13.9.2007 passed in W.P. (s) No. 3150 of 2001 along with analogous cases (Hare Ram Singh vs. The Bihar State Co-operative Milk Producers Federation Ltd. (COMFED) & Ors.), which has been brought on record as Annexure-B to the counter affidavit. On merit also it was submitted by the learned counsel for the respondents that under the relevant bye-laws, the respondent-Managing Director of respondent-COMFED is empowered to pass the order of transfer, so far the employees of Co-operative Society is concerned. In reply to the above submissions, learned Senior counsel appearing on behalf of the petitioners contended that the Patna High Court CWJC No.1039 of 2013 (2) dt.12-02-2013 respondent-Managing Director is the nominee of the State of Bihar, and therefore, even if respondent-COMFED or TIMUL are the Co-operative Societies, the writ petition shall be maintainable before this Court as the State Government has pervasive control over the aforesaid Co-operative Societies. However, he has fairly conceded that in the normal circumstances the writ petition shall not lie against a Co-operative Society, since it is not the State within the meaning of Article 12 of the Constitution of India, but it is contended that the present impugned order has been passed by the Managing Director, who is the nominee of the State Government, therefore, the present writ petition is maintainable and the impugned order is fit to be set aside on the ground of lack of power/authority. Fortunately, all the issues raised by the parties were the subject matters of consideration before the Full Bench of the Jharkhand High Court. The COMFED was the party in those proceedings before the High Court of Jharkhand. The Full Bench of the Jharkhand High Court at the very out set had formulated the questions, which were under consideration and which were required to be answered by the Full Bench. Paragraph-1 of the aforesaid Full Bench judgment dated 13.9.2007 would be relevant and is reproduced herein below : Patna High Court CWJC No.1039 of 2013 (2) dt.12-02-2013 “Whether the Bihar State Co-operative Milk Produces’ Federation Ltd. (hereinafter called as Federation) is State within Constitution of India so as to attract writ jurisdiction?” This is the moot question to be decided by this Full Court in this batch of cases.” the meaning of Article 12 of After considering the long line of the judgments of the Hon’ble Apex Court and the bye-laws of the respondent- COMFED, the Full Bench of the Jharkhand High Court recorded its conclusion in paragraph-32 of the aforesaid judgment and order dated 13.9.2007 and on the basis of the aforesaid conclusion it was held that the COMFED is not the State under the meaning of Article 12 of the Constitution of India. Therefore, the writ petitions filed on behalf of the different employees were held to be not maintainable. For ready reference paragraph-32 of the aforesaid judgment and order dated 13.9.2007 handed down by the Full Bench is reproduced herein below: are clear: “32: From the above discussion, the following aspects (1) The Federation is an Apex Federation of three- tier Co-operative Society. It has General Body of the supreme authority. No shareholders which provision of bye-laws would allow the State Government to have control over the management of the Federation. (2) The Federation has its own Managing Committee to administer the Society. It has its own bye-laws and service rules and no decision of the State Government is binding unless it is approved by the General Body of the Federation. (3) The promotion policy of the Federation employees the State Government. The is different Patna High Court CWJC No.1039 of 2013 (2) dt.12-02-2013 totally Federation is totally independent to make recruitment of personnel or to give promotion without any interference of the Government. The Officer may come on deputation from the Government, but they have to earn from the Federation and are guided by the service conditions of the Federation and not by the service conditions of the State Government. (4) The Federation independent formulating its policies for conduct of its business, establishment of various plants, acquisition and disposal of assets etc. It is in no way subservient to the State Government in conduct of its business. (5) The Federation supports its business out of its own resources generated its products and through borrowings from the financial institutions. There is no the State financial control of any nature of Government over the Federation. (6) The Federation is a business like organization and it has to compete in the open market with other agencies dealing with the same products. As such, the Federation does not enjoy monopoly status over the market. The market is open for other agencies also and it is neither State conferred, nor State protected. (7) It is true that some nominees of the State Government are members of the Board of Directors but there is no direct control of the State Government over the affairs of the Apex Co-operative Society and nothing is there in the bye-laws to show that the State Government provides necessary business of the Federation, nor there is anything to indicate that there is control of the State Government over day to day functioning of the respondent Federation, which to day functioning) is the responsibility of the General Body, which, as indicated above, is the supreme authority. (8) There is no deep rooted or pervasive control of the State Government over the Federation. Some of the Annexures shown by the petitioners would indicate that this role is only regulatory in nature not indicating pervasive control of the State Government over the functioning of the Federation.” the aforesaid Full Bench After (control over day judgment dated Patna High Court CWJC No.1039 of 2013 (2) dt.12-02-2013

13.9.2007 of the Jharkhand High Court, similar matter came up for consideration before a Full Bench of our own High Court. The Full Bench of our own High Court in the case of Vidya Bhushan Singh Abhai (Supra) has laid down the same proposition of law and came to the conclusion that the writ petition is not maintainable against the Co-operative Society including the respondent-COMFED, as it is not the State within the meaning of Article 12 of the Constitution of India and not an authority within the meaning of Article 226 of the Constitution of India. In view of the aforesaid binding precedents, this Court is not inclined to go into the merit of the claims raised on behalf of the petitioner. It is, accordingly, dismissed. It goes without saying that the petitioners are at liberty to pursue their remedy available under the relevant rules and bye- laws by approaching the appropriate authority for appropriate relief. RPS/- (Birendra Prasad Verma, J)