Jitendra Srivastava of Nashik v. The National Horticultural Research and Development Foundation & Ors.

Judgment

(Per P.B. Majmudar, J.)

1. The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by way of this petition and has prayed for setting aside the order dated 14th May, 1999 by which the post which the petitioner was holding was ordered to be abolished. The petitioner has prayed for reinstatement in service on his original post with full back wages and consequential benefits. The petitioner has also challenged an order of punishment dated 10th June, 1998 passed against him by the management by which three increments of the petitioner are withheld by way of punishment

which was confirmed in appeal by the Appellate Authority. He has also challenged the order dated 5th December, 1998 by which the basic pay of the petitioner was reduced for a period of two years which was confirmed in departmental appeal.

2. The petitioner was initially appointed as a Joint Director (Administration) by the second respondent to look after personnel, administration, finance and accounts of the first respondent Foundation. The petitioner was subjected to two departmental inquiries on the basis of which two separate punishment orders were passed, one regarding withholding of three -3- increments and the other regarding reducing his basic pay scale for two years. The post which the petitioner was holding was abolished by the first respondent by way of resolution passed by it in its Managing Committee meeting and by an office order dated 14th May, 1999, the said post was ordered to be abolished which action has also been challenged by the petitioner along with two punishment orders.

3. During the course of hearing, Mr. Karnik, learned counsel appearing for respondent No.2, after taking instructions from the concerned officer of the first respondent, fairly states that without prejudice to the rights and contentions of first respondent to the effect that it is not a “State” within the meaning of Article 12 of the Constitution of India and while maintaining the point that the writ petition under Article 226 of the Constitution is not maintainable against the first respondent, the first respondent is willing to withdraw both the aforesaid punishment orders dated 10th June, 1998 and 5th December, 1998. In view of the said concession, the aforesaid two orders of punishment are treated to have been withdrawn and the learned counsel for respondent No.2 states that whatever benefits the petitioner will be entitled to on account of the withdrawal of these two punishment orders will be paid to the petitioner within a period of two months from today. The said statement of the learned counsel is accordingly recorded. Respondent no.1 to act accordingly. -4-

4. In view of the withdrawal of the aforesaid two punishment orders, the question which the Court is now required to be examined in the light of the decision taken by respondent No.1 is regarding abolition of post which the petitioner was holding.

5. The petitioner was employed by the first respondent, a Society registered under the Societies Registration Act. A decision was was taken by the Managing Committee of first respondent at its meeting held on 14th April, 1999 to abolish the post of Joint Director (Personnel and Administration) in view of the financial constraints as well as on the ground that no purpose would be served in continuing the said post. Pursuant thereto, the services of the petitioner were terminated after the office hours on 14th May, 1999. The petitioner was also given three months’ notice pay in lieu of the notice. The aforesaid order is impugned at the instance of the petitioner in this petition.

6. Mr. Arshad Shaikh, learned counsel appearing for the petitioner, vehemently argued that the order abolishing the said post is not passed in a bona fide manner but the same is mala fide and is passed only in order to victimise the petitioner. In this connection, reliance is placed to certain orders passed by Mr. U.B. Pandey, Director of first respondent, who is alleged to have enmity with the petitioner and ultimately with a view to remove the petitioner -5- from the services that the ultimate order of abolishing the said post has been passed.

7. This petition is opposed by Mr. Karnik, learned counsel appearing for respondent No.2, on the ground that respondent No.1 is a Society incorporated under the Societies Registration Act and, therefore, is not a State within the meaning of Article 12 of the Constitution of India. He further points that respondent No.3- National Agricultural Co-operative Marketing Federation of India Ltd. (NAFED), also cannot be said to be a State within the meaning of Article 12 of the Constitution of India. Even otherwise, NAFED has no control over the day to day management of the first respondent in any manner nor it is financing in any manner so far as the working of the first respondent Society is concerned. It is, therefore, submitted that this writ petition is not maintainable. It is further submitted that the policy decision for abolition of post was taken by the Managing Committee consisting of 14 members and that it is not correct to say that the decision was taken at the instance of the second respondent.

8. Mr. Shashipal Shankar, learned counsel for respondent No. 3-NAFED states that NAFED cannot be said to be a State within the meaning of Article 12 of the Constitution of India for which he has relied upon the decision of the Delhi High Court in the case of National Agricultural Co-operative Marketing Federation -6- of India Limited vs. Nafed Processed Food Co-operative Marketing Federation of India Employees Union,1. He further states that NAFED has absolutely no control in any manner regarding the affairs of the first respondent, which is purely an independent institution functioning under the State Co-operative Societies Act.

9. As stated earlier, since the two punishment orders have been withdrawn by the first respondent, the only question which requires consideration in this petition is as to whether the order of abolition of the post which the petitioner was holding can be said to be a bona fide order or it is passed with oblique motive to do away with the services of the petitioner and whether the respondent No.1 can be said to be a State within the meaning of Article 12 of the Constitution of India and amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India.

10. In order to ascertain as to whether the first respondent can be said to be a State within the meaning of Article 12 of the Constitution, it would be necessary to have a look at the bye-laws, a copy of which has been placed on record. So far as President and Vice-President of respondent No. 1 is concerned, they are nominated by NAFED. Over and above President and Vice President, initially there were other additional 8 members. The Court is informed that the strength of the Managing Committee has been now increased to 18 i.e. 4 representatives from NAFED of which one shall be Managing Director, 9 1 2001 (1) ILR (DLH) 18 : 2001 (90) DLT 754 -7- representatives would be elected from amongst the Associate Members, 4 members from eminent scientists/experts in the related field and the Director of first respondent acts as a Member Secretary. As per the bye-laws of the society, the President shall be the Chairman at every meeting of the Committee and in his absence, Vice-President may act as Chairman. The President has power to monitor the aspect about appointment or removal of an employee in the services. The learned counsel for the petitioner submitted that the first respondent, therefore, should be treated as a State within the meaning of Article 12 of the Constitution of India in view of the fact that it discharges an important public function. It is further submitted that respondent No.1 should be treated as a State on its own or in any case in view of the fact that the third respondent is having an effective control over respondent No.1 and third respondent being a State within the meaning of Article 12, respondent No.1 should also be treated as an instrumentality of the State. In order to substantiate his say that the first respondent be considered as a State, the learned counsel for the petitioner has relied upon various judgments of the Supreme Court and other High Courts viz. (i) Ajay Hasia, etc. vs. Khalid Mujib Sehravardi and others1, (ii) Dr. S.M. Ilyas and others vs. Indian Council of Agricultural Research and others2, (iii)U.P. State Co- operative Land Development Bank Ltd. vs. Chandra Bhan Dubey and others3, (iv) The Mysore Paper Mills Ltd. vs. The Mysore Paper Mills Officers Association and another4,(v) M.P. State Co-op. Dairy Federation Ltd. vs. Rajnesh Kumar Jamindar