A.Satyanarayana Murthy v. The Commissioner for Co-operation & Registrar of Co-operatative Societies, A.P

i.e. Nathavaram Primary Agricultural Co-operative Society Limited. While the first and second respondents are the Officers employed by the Government of Andhra Pradesh, it is the third and fourth respondents, whose orders are alone questioned in this writ petition and against whom alone relief is sought for. A counter affidavit is filed on behalf of the fourth respondent, wherein it is stated that the petitioner was not appointed as Attender-cum-Salesman either on regular or temporary basis, that the previous management of the fourth respondent, shortly prior to expiry of its tenure, had created papers/resolutions as if the petitioner had been appointed from November,

1993. It is stated that no post was sanctioned by the second respondent. Reference is made to the staffing pattern of the fourth respondent society, whereunder one post of Secretary, a Clerk-cum-Supervisor and Attender alone had been sanctioned. It is stated that the petitioner had managed to get appointed with the collusion of former Management Committee, that he was appointed only as a contingent worker as evidenced in the cash vouchers, that his services were availed depending upon the necessity, that the President of former Management Committee is closely related to the petitioner, (being the grand son of natural sister of the wife of the then president), and that records were created to unduly favour the petitioner. It is stated that the petitioner’s appointment did not have prior approval as required under 116-C of the A.P. Co-operative Societies Act and that the Commissioner and Registrar of Co- operative Societies, vide letter dated 02-01-1995, had directed societies not to make any further recruitment of staff.

It is further stated that the second respondent issued proceedings dated 23-08-1994 directing societies to remove persons appointed irregularly either on daily-wage or contingent basis or by any other mode. Consequent upon the proceedings of the second respondent, the petitioner’s services were terminated. It is also stated that the financial position of the fourth respondent society is extremely poor and that there is no work to engage the services of the petitioner. Allegations that two individuals were appointed as attenders on daily wages basis are denied. It is stated that depending on exigency, two persons were engaged as clerks at Rs.25/- per day. It is stated that the petitioner has been working as in charge of the branch of Horlicks Factory at Nathavaram on a remuneration of Rs.1,500/- p.m., and since the questions involved in this writ petition give rise to several complicated questions of fact, the proper forum for adjudication is under the A.P. Shops and Establishments Act.

On being specifically asked as to how a writ petition was maintainable against a Co- operative Society, which is not an instrumentality of the State, Sri Abhinand Kumar, learned counsel appearing on behalf of Sri Nooty Ram Mohan Rao, learned counsel for the petitioner would place reliance on Harbanslal Sahnia v. Indian Oil Corpn. Ltd. A.Uma Rani v. Registrar, Coop. Societies ; Zee Telefilms Ltd. v. Union of India and Sadhu Varahala Babu v. Government of A.P.. In A. Umarani (1 supra), while examining the question as to whether a Co- operative Society, under the Tamil Nadu Co-operative Societies Act, was a ‘State’ within the meaning of Article 12 of the Constitution of India, the Supreme Court held thus: “Although we do not intend to express any opinion as to whether the cooperative society is a “State” within the meaning of Article 12 of the Constitution of India but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the cooperative society is violative of mandatory statutory provisions.

In this case except the nodal center functions and supervision of the cooperative society, the State has no administrative control over its day-to-day affairs. The State has not created any post nor could it do so on its own. The State has not borne any part of the financial burden. It was, therefore, impermissible for the State to direct regularization of the services of the employees of the cooperative societies. Such an order cannot be upheld also on the ground that the employees allegedly served the cooperative societies for a long time.” While a writ petition would be maintainable for violation of statutory provisions, it is not even the case of the petitioners herein that some statutory provision has been violated by the respondents. In Zee Telefilms (2 supra), the question which arose for consideration was as to whether the Board of Control for Cricket in India was an instrumentality of the State within the meaning of Article 12 and the Supreme Court held as under: “Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket.

These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence, there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226.

Therefore, merely because a non-governmental body exercises some public duty, that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case, the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case hence there is force in the contention of Mr.Venugopal that this petition under Article 32 of the Constitution is not maintainable.” It is thus clear that when a private body exercises public functions, even if it is not a State, a writ petition under Article 226 of the Constitution of India would lie. Respondents 3 and 4 do not exercise any public functions. The fourth respondent is a Primary Agricultural Co-operative Society, formed for the benefit of its members and does not exercise any public functions, which can be said to affect the public at large. The third respondent is the President of the fourth respondent society and does not discharge any public duty.

I n SADHU VARAHALA BABU (3 supra), this Court on a conspectus of earlier judgments, summarized its conclusions as under: “The co-operative societies are established under the A.P. Co-operative Societies Act, 1964. The rules regarding the functioning of the societies were framed from time to time giving statutory recognition. The bye-laws of the societies are also given statutory flavour on account of their enforcement after getting approval from the Registrar of Co-operative Societies. Though the authorities of the State are not directly involving in the ordinary functioning of the societies, the authorities under the statute are regulating the functioning of the societies by fixing the staffing pattern, regulating the expenditure towards establishment charges, supervising the elections to the respective societies, conducting audit of the accounts of the societies, instructing the concerned authorities to take disciplinary actions against the erring officials and to reduce the members of the establishment in tune with the ceiling provided under the Act.

In the first set of decisions mentioned in the aforementioned paragraphs, though the Courts held that a cooperative society is not a “State” or “other authority” under Article 12 of the Constitution, they did not put any embargo for treating it as “an authority” mentioned under Article 226 of the Constitution and for issuing necessary directions by invoking powers under Article 226 of the Constitution. The second set of decisions are to the effect that a cooperative society would also come within the purview of Article 12 of the Constitution. Keeping in view the above trend of decisions rendered by various Courts, I wish to summarise as under:

Article 226 empowers the High Court to issue writs to ‘persons’ or ‘authorities’ to enforce ordinary rights. An order can be issued against private persons by granting appropriate relief under Article 226 of the Constitution. Even if a society cannot be characterized as a “State” within the meaning of Article 12, a writ would lie against it to enforce a statutory public duty. In the matter of termination of service of the employees of a cooperative society, Section 47 of the A.P.Shops and Establishments Act provides a certain protection and since the said protection is based upon public policy, it will be enforced, in an appropriate case, by the High Court under Article 226 of the Constitution. A writ can be maintained under Article 226 if there is flagrant violation of the principles of natural justice, which are required to be followed under a statute. The power of the High Court is not confined only to issue of writs to a public authority.