K. Ganesan vs The Special Officer, Salem Co-operative Sugar Mills Ltd. and The State of Tamil Nadu

Mishra, J.—The petitioner herein has questioned the validity of an order passed by the Special Officer, Salem Co-operative Sugar Mills

Limited, Mohanur, terminating his services by Rc. No. 5/E1/83 dated 15.11.1983. The Special Officer advertised certain posts in the Co-

operative Sugar Mills including that of Seasonal Lab Chemist. The petitioner duly applied for the same and was called for an interview in and by

the letter of the Special Officer dated 9.2.1982. He was interviewed on 18.2.1982 and in and by proceedings No. 15/82/MFG dated 19-2-1982,

he and some others were appointed as Seasonal Lab Chemists. In the letter of appointment, the scale of pay was shown at Rs. 405-795. The

petitioner was put on probation for one year from the date of joining, with the stipulation that the probation would be liable for extension, if the

service of the incumbent was not found to be satisfactory. Thus, according to the petitioner, he was recruited on a permanent basis and given

appointment on probation for one year. In a separate proceeding L./83/MFG dated 21.2.1983, the petitioner and two other Seasonal Lab

Chemists were declared to have completed satisfactorily their probation. One Velusamy, who also had been appointed along with the petitioner,

however, had not been mentioned in the said proceeding and, it seems he completed his probation after some days and, in and by a separate

proceeding, he was declared to have satisfactorily completed his probation. All of a sudden, however, according to the petitioner, the Special

Officer in and by the proceedings in Rc. No. 5/E1/83 informed the petitioner that his services were terminated for the reason that his appointment

was only against the vacancy caused as a result of one P. Subramaniam, a Lab Chemist, undergoing training in National Sugar Institute, Kanpur,

who re-joined duty and thus there was no vacancy for the petitioner. Aggrieved by the said order, the petitioner moved through his Union an

appeal to the Special Officer as well as the second respondent, the Director of Sugar, Nandanam, Madras, but found no response from any of

them. He thereafter moved this Court seeking inter alia a writ in the nature of certiorari and consequential mandamus or any other appropriate writ,

order or direction for quashing the proceedings dated 15.11.1983 in Rc. 5/E1/83 and directing the respondents to reinstate him in service as Lab

Chemist and other consequential benefits.

The impugned proceeding has been produced which reads as follows:

Rc. No. 5/E1/83

Memo.

Sub : Establishment - Appointment of Seasonal lab Chemist - Thiru K. Ganesan, Seasonal Lab Chemist - Not qualified in Maths and Excess hand

- regarding.

Ref: 1) Minutes of the Committee Meeting that held on 18.2.82 for the selection of Seasonal lab Chemists.

2) This Office Proceedings dated 19.2.82.

3) This office Proceedings dated 21.2.83.

Thiru K. Ganesan was selected as Seasonal Lab Chemist in the proceedings first cited in the vacancy of Thiru P. Subramanian, Lab Chemist who

had undergone training in National Sugar Institute, Kanpur. Now Thiru P. Subramaniam has joined on duty. As such there is no vacancy for the

continuous service of Thiru K. Ganesan.

Hence he is hereby informed to take this as month notice for the termination of his service from the date of receipt of this memo.

2A. The writ petition was heard for admission and a rule nisi was issued in W.M.P. No. 18234 of 1983 in these terms:

Interim stay if petitioner had not been already relieved by today.

and the stay was made absolute on 11.1.1984. After an inordinate delay, however, the case was posted for hearing before me. On 19.12.1991,

Learned Counsel for the first respondent/Special Officer stated that the first respondent intended to withdraw the impugned order and give to the

petitioner continuity of appointment from the date of appointment but without paying for the period he had not worked. On his representation as

above, I ordered as follows:

It is stated by the Learned Counsel for the respondents that the respondents intend to withdraw the impugned order and give to the petitioner

continuity of appointment from the original date of appointment of the petitioner but without paying for the period he has not worked. Learned

Counsel for the petitioner states that in case this be done, an order may be issued or an affidavit filed in this Court to the said effect in which he

may not press the writ petition. I earned counsel for the respondents prays for two weeks time to file an affidavit to the said effect. The prayer is

allowed. Put up after two weeks.

The respondents, however, have not withdrawn the order. They have not filed any counter-affidavit. They have also not chosen to contest the

case on merits and thus conceded that in the case of termination of the services of the petitioner, the by-laws of the society as well as the principles

of natural justice have been violated.

Mr. Vijay Narayan, Learned Counsel, who has appeared for the first respondent, however, has drawn my attention to the Full Bench judgment

of this Court in (P. Kannan) R. Thamilarasan, J. Rajesekaran, C. Karamani, D. Ramanujam and P. Kannan Vs. The Director of Handlooms and

Textiles, Madras and Others, and a later Full Bench judgment in W.P. No. 6191 of 1990 dated 22.1.19922 and contended that as held by this

Court more than once by Full Bench of the Court, a Cooperative society is a body, which after having come into existence, is governed in

accordance with the provisions of the statute. In other words, a co-operative society does not owe its very existence to any statute which would

be the fountain head of its powers. Still further, a co-operative society can have a legal existence even without a statute. Thus, the co-operative

society is an institution merely governed by the statutory provisions. It cannot be said to be a statutory body. The fact that the governing body is

superseded and in its place a Special Officer or other Government official is appointed to administer the affairs of the society makes no difference.

He has thus contended that this Court is bound by such strong precedents and therefore should desist from issuing any writ, order or direction in

the case of the petitioner.

4A. Before coming to the two Full Bench judgments and considering whether they are binding authorities or precedents, I would, however like to a

venture into the scheme of the law and consider as to what is the power of this Court under Art.226of the Constitution of India and how the Court

should decide whether to issue a writ/direction or pass an order with respect to any injurious action of a Special Officer appointed to administer a

Co-operative society.

Art. 226of the Constitution reads as follows:

Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to

issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs

in the nature of habeas corpus, mandamus, prohibition quo warranto and certiorari, or any of them for the enforcement of any of the rights

conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or persons may also be exercised by any

High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such

power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any

proceedings relating to a petition under clause (1), without-

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such

order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on

which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on

the last day of that period before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed

of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of

Article 32.

A mere glance at this would convince that this Court has got power throughout the territories in relation to which it exercises jurisdiction to issue

to any person or authority including in appropriate cases any Government within those territories, directions, orders or writs including writs in the

nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by

Part III and for any other purpose. The words ""to any person or authority"" and the words ""for the enforcement of any of the rights conferred by

Part III and for any other purpose"" leave no scope to question the authority of this Court to issue a writ even to a private person, whether it is a

living being or a legal entity as a jurisdic person.

It has been, however, a rule borrowed as to the nature of the writs of mandamus, certiorari, quo warranto and prohibition, which are

interchangeable and sometimes overlap that courts exercise a restraint of a sort and hold that such writs would issue to only an authority performing

a public duty. The expression ''authority'' is also used in Art.12of the Constitution, which defines ""the State"" for the purposes of fundamental rights

in Part III thereof and states that unless the context otherwise requires, ""the State"" includes ""the Government and Parliament of India and the

Government and the Legislature of each of the States and all local or other authorities within the territory of India under the control of the

Government or India."" The use of the expression ""all local or other authorities"" in this article, however, has been often confused with the use of the

expression ''authority'' in Art. 226(1) of the Constitution and this had led to a long line of decisions saying what meaning should be given to the

expression ''authority'' for the purpose of Art. 226and what meaning should be given for the purpose of Art. 12of the Constitution of India.

In the case of Rohtas Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, the Supreme Court has said:

The expansive and extraordinary power of the High Courts under Article 226is as wide as the amplitude of the language used indicates and so can

affect any person even a private individual�and be available for any (other) purpose even one for which another remedy may exist. The

amendment to Art. 226in 1963 inserting Art. 226(1-A) reiterates the targets of the writ power as inclusive of any person by the expressive

reference to ''the residence of such person''. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china

shop. this Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those

wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate.

The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ

power has, by and large, been the people''s sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We

hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash.

The Supreme Court made these observations after taking into account many rulings of the High Courts, pro and con in a case in which the award

of an arbitrator was under challenge. The arbitrator was appointed under a memorandum of agreement under which the Management as well as the

Registered Union and two unregistered unions were parties. One of the contentions before the Court was that an award under S.10Aof the

Industrial Disputes Act savours of a private arbitration and is not amenable to correction under Art. 226of the Constitution and, even if there be

jurisdiction, a discretionary desistence from its exercise is wise, proper and in consonance with the canons of restraint.

It is to the credit of the Bench of this Court that it exercised writ jurisdiction against a private arbitrator in the case of Film Division, Bombay v.

R.M. Seshadri 1973 II LLJ 444. In this case, no detailed discussion is available, but it is particularly stated with respect to exercise of writ

jurisdiction as follows:

It is, however, contended that under Art. 226of the Constitution, no power lies in this Court to issue a rule against a private arbitrator. In support

of this contention, our attention is invited to The Engineering Mazdoor Sabha Representing Workmen Employed Under the Hind Cycles Ltd. and

Another Vs. The Hind Cycles Ltd., Bombay, . That was a case of special leave under Art. 136(1) of the Constitution. The expression used in the

Article is ""Court or Tribunal"". The Supreme Court was of the view that an arbitration, acting under S. 10Aof the Industrial Disputes Act, could not,

for purposes of Art. 136(1) be regarded as a Tribunal. The Supreme Court was not concerned with the scope of Art. 226. But, as a matter of

fact, there are observations to be found in the judgment of the Supreme Court that the terminology of Art. 226was much wider than that of Art.

136(1) and the Court pointed out that under Art. 226of the Constitution, the Court has power to issue a direction to any person or authority. That

in fact, is the language used by Art. 226itself. We may also observe that though once Courts were exercised over the limitations of the English writs

no longer is it felt that those limitations need necessarily apply to the wider concept of the power under Art. 226of the Constitution.

In a later judgment reported in The The Workmen of Buckingham and Carnatic Mills and Others Vs. The State of Tamil Nadu and Others, ,

once again a Bench of this Court considered the other aspect of the matter as to whether for a person or authority to be amenable to the

jurisdiction of the High Court under Art. 226, it should fall under the category of ""other authority"" within the meaning of Art. 12of the Constitution

of India. In this judgment one may find how the Courts exercised restraint in issuing any writ of mandamus. I am saved of the effort to first collect

the English authorities and then to demonstrate how under Art. 226of the Constitution, a wider power has been conferred upon the High Court

because a very illuminating discussion in this behalf is available in this judgment. The relevant observations are as follows:-

Before considering the question whether a writ of mandamus as prayed for by the petitioners can be issued against the second respondent,

Commissioner of Labour, it is necessary to consider the scope and nature of a writ of mandamus. A writ of mandamus is a command issued by a

court to a person holding a public office or against a corporation or inferior court for the enforcement of duties which under the law for the time

being in force are clearly incumbent upon such person or court in his or its public character or corporation in its corporate character. In Halsbury''s

Laws of England, Third Edition, Volume II, at page 84 it is stated thus:

The order of mandamus is an order of a most extensive remedial nature, and is, in for, a command issuing from the High Court of Justice, directed

to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their

office and is in the nature of a public duty. Its purpose is to apply defects of justice; and accordingly it will issue, to the end that justice may be

done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right.

Prof. De Smith in his Judicial Review of Administrative Action, Fourth Edition, at page 540 states;

Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. The applicant

must show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it. It is

preeminently a discretionary remedy, and the court will decline to award it if another legal remedy is equally beneficial, convenient and effective.

The duty to be performed must be of a public nature� To be enforceable by mandamus a public duty does not necessarily have to be one

imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract

Garner in his Administrative Law, Fourth Edition at page 183 states thus:

This order is different in nature from prohibition and certiorari; it commands any person to whom it is directed to carry out a public duty imposed

by law.

The duty which it is sought to enforce by order of mandamus must be of a public nature.

A writ of mandamus has been described thus in Corpus Juris Secondum, Vol. 55, page 15;

Mandamus has been broadly defined as a writ issuing from a court a competent jurisdiction, directed to a person, officer, corporation or inferior

court commanding the performance of a particular duty which results from the Official station of the one to whom it is directed or from operation of

law, or as a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. It is a

proceeding to compel - one to perform some duty which the law imposes on him and the writ may prohibit the doing of a thing, as well as

command it to be done.

In Sohanlal Vs. The Union of India (UOI), it is observed as follows:

Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is

made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public

duty.

In The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, , it is observed as follows:

Article 226provides that every High Court shall have power to issue to any person or authority orders and writ including writs in the nature of

habeas corpus, mandamus, etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other

purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one

who applies for it has a sufficient legal interest....

Therefore, the condition precedent for the issue of mandamus is that there is one claiming it a legal right to the performance of a legal duty by one

against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or inferior Tribunal requiring him or

them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not

necessary that the person on the authority on whom the statutory duty is imposed need be a public official or an official body.

It is therefore, clear that a writ of mandamus is an extraordinary remedy. It is in form a command directed to a person, corporation or an inferior

Tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty.

So long as the duty that is sought to be performed is in the nature of a public duty, it is not necessary that the person or the authority on which the

duty is imposed should be a public official or an official body. It is further necessary that the person claiming a writ of mandamus must have a legal

right to the performance of a legal duty by the one against whom the writ is sought.

Since my attention has been drawn to yet another Bench decision of this Court and since the law as to who is a subject to the writ jurisdiction

under Art. 226of the Constitution has been candidly stated, I do not propose to escape that the judgment. In United India Fire and General

Insurance Co. Ltd. and Others Vs. A.A. Nathan and Another, , a Bench of this Court has said:

What is, however, relevant for the purpose of the present discussion is not whether any particular company owes its existence to Central Act 57 of

1972 or to the Companies Act, but the nature and character of the status and position of the company with reference to Art. 12of the Constitution

of India, and the decisions of the Supreme Court bearing on the question. Having regard to three special features, we have no hesitation whatever

in coming to the conclusion that the appellant-company will come within the scope of the expression ""other authorities,"" occurring in Art. 12of the

Constitution. In the first place, under S. 24of the Act, a right exclusive privilege to carry on the general insurance business in India is conferred only

on the four companies. It is such a right that has been conferred and protected by the statute. Secondly, under S. 31of the Act every officer or

other employee of the Corporation as well as of the acquiring company shall be deemed to be a public servant for the purpose of Chapter IX of

the Indian Penal Code. Thirdly, under S. 32an indemnity is provided by the Central Government and the Corporation and the acquiring company

in respect of the discharge of duties by the officers of the Central Government and the officers and other employees of the Corporation or

acquiring company. It is pertinent to note that under S. 32, for the purpose of the indemnity, every officer or other employee of the company is

treated on a par with the officers of the Central Government. These three circumstances cumulatively, in our opinion, in addition to the other

provisions contained in the statute will clearly establish that the appellant-company will come within the scope of ""other authorities"" occurring in

Art. 12of the Constitution of India, as has been explained by the several decisions of the Supreme Court.

Independently of the above, so far as Art. 226of the Constitution of India is concerned, it is not even necessary to consider whether the authority

concerned would fall within the scope of Art. 12of the Constitution. Only when a question of fundamental rights is involved, and a person

approaches the Court for the enforcement of his fundamental right the question whether the person or authority or corporation against whom relief

is claimed is a State or not will arise Article 226of the Constitution is couched in wider and more general terms and therefore even the strict

interpretation as to what would constitute a State under Art. 12may not be relevant for Art. 226. This Article uses the expression ""any person or

authority, including in appropriate cases any Government."" Decided cases have held that the authority must be of a public character, because the

Article is not intended to replace the ordinary or general remedy available to a citizen to approach a Civil Court by instituting a suit. Hence with

reference to Art. 226the only consideration will be whether the appellant company can be said to be a public authority or not. Having regard to

what we have pointed out above, with regard to the rights, privileges and duties of the appellant-company, in the light of the provisions contained in

Central Act 57 of 1972, we have no hesitation whatever in holding that the appellant-company will come within the scope of Art. 226of the

Constitution of India and will, therefore, be amenable to the writ jurisdiction of the High Court.

Coming to the Co-operative Society in particular, before I refer to the two Full Bench and some more judgments, particularly judgments which

have been delivered by Nainar Sundaram, J. (presently acting Chief Justice) and Srinivasan, J. who are members of the later Full Bench judgment

in W.P. No. 6191 of 1990, I may refer to a Full Bench judgment of the Andhra Pradesh High Court in Sri Konaseema Co. op. Central Bank Ltd.

v. N. Seetharama Raju AIR 1990 A.P. 171. Several questions similar to those taken into account by the Division Bench of this Court in A.

Natarajan and others Vs. Registrar of Co-op. Societies and others, adversely commented UPON by the Full Bench in W.P. No. 6196 of 1990

Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, have been considered by the Full bench of the Andhra Pradesh

High Court and it has been observed:

Municipalities and Gram Panchayats, it may be noted, are illustrations of local self Government. Co-operative Societies, on the other hand,

represent a collective co-operative effort of a group of persons to improve their economic well-being. A co-operative society stands no

comparison to Municipalities and Gram Panchayats. The bye-laws made by a local authority bind all the persons within its area, whereas the bye-

laws of a society bind only its members and its employees. The former is law. The latter is only a contract.

For the above reasons, we hold that the bye-laws of a Cooperative Society governed by the A.P. Co-operative Societies Act, do not have the

force of law, as held by the Supreme Court in Co-operative Central Bank. This is so even where the Society which made them is characterized as

a ''State'' within the meaning of Article 12. This does not however mean that, where a particular co-operative society can be characterized as a

''State'' it is not bound to follow those bye-laws. We have already indicated hereinbefore that such society must follow its bye-laws, and it would

be compelled to follow such bye-laws by way of a writ petition so as to ensure fair and equal treatment the mandate of Article 14.

Speaking on the features of mandamus and certiorari, it is said in this judgment:

The basic feature of mandamus and certiorari is that they are public law remedies and are not available to enforce private law rights. Though the

strict technical rules governing these writs in English law are not applicable in India, yet the broad principles underlying the said writs have to be

kept in mind by this Court while exercising the powers under Art. 226. Not keeping the said distinction in mind would obliterate the distinction

between a writ petition and a suit; there will be chaos. As pointed out by a Constitution Bench of the Supreme Court in T.C. Basappa Vs. T.

Nagappa and Another, though the power of the High Court under Art. 226need not be constricted by the technical rules applicable to these

prerogative writs in English law, it is yet necessary to ""keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the

matter of granting such writs in English taw.

Similarly, it was pointed out in Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, that ""Article 226is couched in

comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. A wide language in

describing the nature of the power, the purpose for which and the person or authority against whom it can be used, was designedly used by the

Constitution. But this does not mean that the High Court can function arbitrarily under this Article. There are some limitations implicit in the Article,

and the others may be evolved to direct the Article through defined channels."" The object behind Art. 226was to strengthen the then existing

judicial system, to make it more effective and not to dispense with, duplicate, or replicate the existing system. It was not to supplant the existing

judicial system, but to confer an additional power in the service of people and Constitution that this extra-ordinary power was created. It is for this

reason that notwithstanding the wide language of Art. 226, Courts have been observing certain self-imposed restrictions upon this power. One of

the well accepted limitations upon the exercise of this power is that it is not available to enforce the terms of a contract i.e., a contract which is not

statutory in nature. This is so even if one of the contracting parties is the State, a Government or other local authority. This is the principle affirmed

by Supreme Court in a large number of cases, some of which are Radhakrishna Agarwal and Others Vs. State of Bihar and Others, State of

Punjab v. Balbir Singh, AIR 1977 S.C. 1717: The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh and Others,

Lekhraj Satramdas, Lalvani Vs. Deputy Custodian-cum-managing Officer and Others, ; Har Shankar and Others Vs. The Dy. Excise and

Taxation Commr. and Others, and finally Life Insurance Corporation of India Vs. Escorts Ltd. and Others, . In Escort''s case, an argument was

urged that inasmuch as the Life Insurance Corporation was an instrumentality of the State, it is debarred by Article 14from acting arbitrarily. It is

obligatory upon the Corporation, it was contended, to disclose the reasons for its action complained of, viz. its requisition to call an Extraordinary

General Meeting of the Company for the purpose of moving a resolution to remove some Directors and appoint others in their place. This

argument was opposed by the learned Attorney-General for the State, contending that actions of the State or an instrumentality of the State which

do not properly belong to the field of public law, but belong to the field of private law, are not subject to judicial review. Dealing with the said

contentions, the Court observed:-

While we do find considerable force in the contention of the learned Attorney-General it may not be necessary for us to enter into any lengthy

discussion of the topic, as we shall presently see. We also desire to warn ourselves against readily referring to English cases on questions of

Constitutional law Administrative Law and Public Law as the law in India in these branches has forged ahead of the laws in England, guided as we

are by our Constitution and uninhabited as we are by the technical rules which have hampered the development of the English law. While we do

not for a moment doubt that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases

actions uninformed by reason may be questioned as arbitrary in proceedings under Art. 226or Art. 32of the Constitution, we do not construe Art.

14as a charter for judicial review of State actions and to call upon the State to account for its actions in its manifold activities by stating reasons for

such actions.

For example, if the action of the State is political or sovereign in character, the Court will keep away from it, the Court will not debate academic

matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligation or obligations

arising out of the contract, the Court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking,

the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law

field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with

precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which

the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host

of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a

company, it assumes to itself the ordinary role of a share-holder, and dons the robes of a shareholder, with all the rights available to such a

shareholder, there is no reason why the State as a shareholder should expected to State its reasons when it seeks to change the management, by

resolution of the Company, like any other shareholder.

Summarising, the Andhra Pradesh High Court said:

From the above discussion the following proposition emerge:-

(i) If a particular co-operative society can be characterised as a ''State'' within the meaning of Article 12of the Constitution (applying the tests

evolved by the Supreme Court in that behalf), it would also be an ''authority'' within the meaning, and for the purpose of Art. 226of the

Constitution. In such a situation, an order passed by a Society against us employee in violation of the bye-laws, can be corrected by way of a writ

petition. This is not because the bye-laws have the force of law, but on the ground that having framed the bye-laws prescribing the service

conditions of its employees, the society must follow them, in the interest of fairness. If it is left to the sweet will and pleasure of the Society either to

follow or not to follow the bye-laws, it would be inherently arbitrary, and may very likely to give rise to discriminatory treatment. A society, which

is ''State'' has to act in conformity with Art. 14and, for that reason, it will be made to follow the bye-laws.

(ii) Even if a Society cannot be characterised as a ''State'' within the meaning of Art. 12, even so a writ would lie against it to enforce a statutory

public duty which an employee is entitled to enforce against the society. In such a case, it is unnecessary to go into the question whether the society

is being treated as a ''person'' or an ''authority'' within the meaning of Art. 226of the Constitution. What is material is the nature of the statutory duty

placed upon it, and the Court will enforce such statutory public duty.

(iii) The bye-laws made by a co-operative society registered under the A.P. Co-operative Societies Act do not have the force of law. They are in

the nature of contract, terms of contract, between the society and its employees or between the society and its members, as the case may be.

Hence, where a society cannot be characterised as a ''State'', the service conditions of its employees, governed by bye-laws, cannot be enforced

through a writ petition. However, in the matter of termination of service of the employees of a co-operative society, S.47of 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 this Court under Art. 226of the Constitution. Ordinarily, of course, an employee has to follow the remedies provided by the A.P. Shops

and Establishments Act, but in appropriate case, this Court will interfere under Art. 226, if the violation of a statutory public duty is established. It

is immaterial which Act or Rule casts such a statutory public duty.

(iv) Mandamus, certiorari and prohibition are public law remedies. They are not available to enforce private law rights. Every act of a society

which may be a ''State'' within the meaning of Art. 12does not necessarily belong to public law field. A society, which is a ''State'' may have its

private law rights just like a Government. A contractual obligation which is not statutory, cannot be enforced by way of a writ petition under Art.

226of the Constitution. Prior to entering into contract, however, Art. 14operates, as explained by the Supreme Court in Erusian Equipment and

Chemicals Ltd. Vs. State of West Bengal and Another, and Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, .

The Division Bench judgment of this Court in A. Natarajan and others Vs. Registrar of Co-op. Societies and others, has said as follows:

It has, indeed, not been the law ever that no writ will ever issue against a private corporation or body. Even in England, where there had been no

written Constitution, providing for writs to be issued by Courts, as found in Art. 226of the Constitution of India, Court did issue writs upon private

corporations and bodies. A passage from Ferris on Extraordinary Legal Remedies, page 2329, is worth quoting:

Mandamus is generally recognised as the only speedy and adequate remedy to compel surrender of the insignia, records funds and other property

of a private corporation by the incumbent officer who refuses to deliver them to his successors in office, when it appears that he does not hold

them under any colour of right to the office. The right is incidental to the right to compel surrender for the corporate office to the lawful successor.

The same principles that govern the right in the case of police officers are applicable to officers of private corporations. While mandamus is not the

proper remedy to try title to office, an incumbent holding under no colour of right cannot defeat his successor''s right to mandamus by raising the

question of the validity of the latter''s title and thus deprive him of the right to possession of the corporate property belonging to the office, on the

theory that mandamus is not the proper remedy to try title. As in the case of public officers, respondent being without any colour of right, has no

title to try. A prima facie right, a right de facto and not de jure, is all that is necessary to such cases, or all that is involved. This a court may

determine without deciding actual title. Actual title is only incidentally involved, if at all. The right to possession of the corporate property is

incidental to the right to the office, not actual title, and when petitioner shows a prima facie right thereto, the court merely rests on such prima facie

title for the time being, without adjudicating the actual title, which is left to a proceeding in quo warranto. Nor is it any defence to say that the

property is not in the possession of the officer when it has been voluntarily turned over to some stranger, and it is the duty of the officer to have it in

his custody, and if not, to regain it......

Situations vary from case to case. How and when a private corporation or a body affecting some one''s rights invite, a writ, direction or order of

the Court will depend upon the facts of each case....

The law that has been stated by the Supreme Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti

Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, is not a new exposition, but a reiteration of what had been held in the past by

the Supreme Court. In Dwaikanmathi v. Income Tax Officer AIR 1986 S.C. 81, the Supreme Court examined the scope of Art. 226and stated as

follows:

This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is

found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority

against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England, but the use of the expression

''nature'', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them.

That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to

meet the peculiar and complicated requirement of this country. Any attempt to equate the scope of the power of the High Court under Art. 226of

the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the

years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal

structure. Such a construction defeats the purpose of the article itself.

The Division Bench has also considered the scheme of the Act under which the Special Officer is appointed and has said:

The Tamil Nadu Co-operative Societies (Appointment of Special Officers) Act, 1976 (Act 25 of 1976) has made a specific provision for

appointment of a Special Officer to administer the scheduled co-operative societies meaning the co-operative societies specified in Part A or Part

B or Part C of the Schedule and any other co-operative society included in that schedule under S.8of that Act.

Under its scheme, notwithstanding anything contained in the Co-operative Societies Act, or in the Tamil Nadu Co-operative Land Development

Banks Act, 1934 (Tamil Nadu Act 1 of 1934), or in any other law for the time being in force, the term of office of the members of the committee

or the board, as the case may be, of every scheduled co-operative society, including its president and vice-president, or chairman and vice-

chairman, as the case may be, holding office as such immediately before the appointed day, would expire on the appointed day and the members

would vacate their office on and from such day. On their vacating their office on and from such day, the State Government would appoint a person

as a Special Officer for each scheduled co-operative society for such period or periods not exceeding three yeas in the aggregate, as may be

specified by the Government from time to time.

S.4of the said Act which talks of the appointment of Special Officers for scheduled co-operative societies states as follows:

4(1) Notwithstanding anything contained in the Cooperative Societies Act, 1934 (Tamil Nadu Act X of 1934). or in any other law for the time

being in force, on and from the appointed day the Government shall appoint a person as Special Officer for such scheduled co-operative society

for such period or periods not exceeding three years to the aggregate as may be specified by the Government from time to time.

(2) The Special Officer appointed under sub-S.(1) shall, subject to the control of the Registrar and to such directions as he may, from time to time,

give have power to exercise all or any of the functions of the committee or the board, as the case may be, or of any officer of the scheduled co-

operative society and to take such action as may be required in the interest of such scheduled co-operative society.

(3) The Government may fix the remuneration payable to the Special Officer appointed under sub-S.(1) and the amount of remuneration so fixed,

and such other expenditure incidental to the management of the scheduled co-operative society as may be approved by the Registrar shall be

payable from the funds of such scheduled co-operative society.

(4) The Special Officer appointed under sub-S.(1) shall arrange for the constitution of a new committee or board, as the case may be, in

accordance with the provisions of the Cooperative Land Development Banks Act, 1934 (Tamil Nadu Act X of 1934), as the case may be, and

the rules made thereunder and the by-laws of the Scheduled co-operative society so that the new committee or board, as the case may be, may be

constituted and the members thereof come into office at the expiry of the period of appointment of the Special Officer.

This section does leave no doubt that:

(1) The Appointing Authority of a Special Officer is the State Government: and

(2) The Special Officer, if appointed, is subject to the control of the Registrar and to such directions, as the Registrar may, from time to time give.

His remuneration is also fixed by the State Government, although paid out of the funds of the scheduled cooperative society. He comes to act only

when the regular committee on the Board is superseded and then he functions exercising the powers of the Board or the Committee, as the case

may be, subject to the provisions of the Co-operative Societies Act and the rules made thereunder except as otherwise provided in S.4of the

Special Act or S.5of the Special Act.

What follows from this is that the democratic process of the constitution of the society is brought to a naught at a point and a Special Officer is

assigned the responsibilities and powers of the elected Committee or Board. This power to supersede the elected committee or board is retained

in the State Government by the provisions of the Act and the power to appoint the Special Officer is also given to them. This being the character of

the Special Officer and the situation in which a Special Officer is appointed by the State Government, the only inference possible is that the State

Government in the event of suppression of a regular committee or the board assume all the powers to decide how to administer the society and the

Special Officer, who comes to administer the society, comes as none else than an agent or instrumentality of the State Government.

Nainar Sundaram, J. in Mahadevan v. The Spl. Officer Dy. Registrar, South Arcot, etc. Stores Ltd. 1987 WLR 121 allowed the writ petition

and summarily rejected the objection as to the maintainability of the writ petition against a co-operative society saying inter alia:

However, Mr. Chandrasekharan, Learned Counsel appearing for the respondent submits that a writ as such is not maintainable against the

respondent. We are not dealing with the case of a co-operative society functioning as such; but, we are dealing with the respondent who functions

as a statutory authority under S.72of the Act. In such a contingency, the view of this Court is that the writ is maintainable against such an official. In

this context, I could refer to the pronouncement of Venkataswami, J. wherein the learned Judge has taken notice of the ratio of a Bench of this

Court.

The two references made by him in the quotation above show that one judgment by Venkataswami, J. who is a party to the Full Bench judgment in

(P. Kannan) Thamilarasan etc. v. The Director of Handlooms and Textiles and others 1989 1 LLJ 588 and the other is a Bench decision in W.A.

No. 74 of 1970 judgment dated 18-11-1973 Varadarajan v. The Registrar of Co-operative Societies, Madras and others 1985 W.L.R. 251 : 98

L.W. 428. The judgment of Venkataswami, J. is reported in Varadarajan v. The Special Officer, T.U.C.S. 1985 W.L.R. 251 : 98 L.W. 428.

Srinivasan, J. has in his own way of telling the same thing ,of course in a case arising out of a suit, in the case of The Central Co-operative Bank

Ltd. Vs. M. Parthasarathi, said:

If a Special Officer acts in a manner which is against the by-laws of the society or which is against the rules prescribed for the conduct of the

management of the society then such conduct cannot bind the society itself in other words, the employer. In that context, if the position is viewed it

can be easily seen that the principle that a contract of employment cannot be enforced between two parties and it depends upon the volition of the

parties may not be fully applicable. In this case, the volition of the parties cannot depend upon the individual whims and fancies of the particular

person in management of the society. On the facts of this case, it has been held that the Special Officer has acted mala fide. In fact when the

respondent gave a joining report, it was returned to the respondent by the Special Officer and the respondent was directed to come on the next

day. Before the respondent could meet him on the next day, the Special Officer arranges for lodging a complaint with the police for an offence

which is said to have taken place long prior to that date and based on that complaint, the Special Officer passed an order of suspension stating that

there is a criminal proceeding pending against the respondent. Once it is held on the facts that the order of the Special Officer is vitiated by mala

fides and that the special Officer has no power under the by-laws to suspend any employee of the society on the ground that some criminal

proceedings are pending against him it will be travesty of justice for a Court of law even if it is a court of equity to keep its hands off in such

circumstances, and say that the suit filed by the employee to get that order of the officer declared null and void is not maintainable. I am of the

opinion that in such circumstances, the court must interfere and declare that the order of suspension is null and void.

I am aware that Srinivasan, J. has made these observations in a proceeding arising out of a suit. But at another place in his judgment, he has said as

follows:

In that view, it is not necessary to consider whether a Co-operative Society is a statutory body or it is an authority within the meaning of Art.12of

the Constitution of India. Even assuming for the sake of argument that it is not a statutory body or an authority under Art. 12of the Constitution of

India, this being a civil suit, a decree can be passed against the Co-operative Society as it is a legal person and the plaintiff is seeking to enforce a

civil right. However, I would refer to the contention of Learned Counsel for the respondent that the Special Officer of the appellant-bank having

been appointed under S.4of the Tamil Nadu Co-operative Societies (Appointment of Special Officers) Act, 1976 (Act 25 of 1976) is a statutory

authority. Under S.4(2) of the Act, the Special Officer, shall, subject to the control of the Registrar and to such directions as he may, from time to

time, give, have power to exercise all or any of the functions of the committee of the board. It is, therefore, submitted that the Special Officer is a

statutory authority and any order passed by him can be questioned in a civil court. This contention is supported by the decision of Nainar

Sundaram. J., referred to earlier in Mahadevan v. Special Officer Consumers Co.op., Wholesale Stores Ltd. Cuddalore 1987 W.L.R. 120. No

doubt, as pointed out by Learned Counsel for the appellant, in the case dealt with by Ratnavel Pandian, J., in Kannan v. Director of Sugars, Office

of the Director of Sugars, Madras 1984 Writ L.R. 152, the society was managed by a Special Officer. Though His Lordship refers to the

contention of counsel for the appellant before him that the special officer being a statutory authority, could be subjected to the writ jurisdiction, he

has not ultimately considered that aspect of the matter in that judgment. He has proceeded to hold the Co-operative Society was not an authority

within the meaning of Art. 12of the Constitution of India and the writ petition was not maintainable. In my view, the Special Officer being a

statutory authority, the validity of his orders could be questioned in a court of law.

Any doubt that Srinivasan, J. held the view that a relief of reinstatement or enforcement of the contract of service could be granted only in a suit

and not in a writ petition, stands fully removed by the reason of another judgment delivered by him in C. Marianandam v. The Govt. of Tamil Nadu

1988 T.L.N.J. 350. Considering whether an institution getting teaching grant from government, is an authority and a minority of institution is

amenable to Art. 226of the Constitution of India in a case of termination of the services of a Headmaster without opportunity of being heard

provided to him, he has said:

The first contention of the third respondent is that the third respondent is not an ''authority'' within the meaning of Article 12of the Constitution of

India and that it is only a private institution and not a statutory body and, therefore, a writ cannot issue against the same. Though in the counter

affidavit it is stated that the third respondent is an un-aided school and had not received any aid till the date of the filing of the counter affidavit from

the Government, in the course of arguments it was admitted that the third respondent has secured an order from this Court in W.P. No. 9901 of

1986 directing the Government to pay the Teacher''s Grant from the date of recognition of the school. In (1985) 1 M.L.J. 456), Mohan, J., has

held that a recognised school receiving aid from the Government or teaching grant is amenable to writ jurisdiction. That judgment is clearly

applicable to the present case."" (Incidentally Mohan, J. as he then was was a party to the Full Bench in the case of R. Thamilarasan, J.

Rajesekaran, C. Karamani, D. Ramanujam and P. Kannan Vs. The Director of Handlooms and Textiles, Madras and Others, Srinivasan, J. in this

judgment has proceeded to say,

Learned Counsel for the third respondent referred to a number of decisions including those of the Supreme Court as to the meaning of the word

''authority'' in Article 12of the Constitution of India. He invited my attention to the decisions of this Court holding that a writ will not issue against a

cooperative society registered under the Tamil Nadu Cooperative Societies Act........

Having so noticed and after dealing with some of the judgments of the Supreme Court on the subject including Indra Pal Gupta Vs. Managing

Committee, Model Inter College, Thora, , Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, Manmohan Singh Jaitla Vs.

Commissioner, Union Territory of Chandigarh and Others, Mrs. Y. Theclamma Vs. Union of India (UOI) and Others, as well as in AIR 1976

S.C. 425) (supra), Srinivasan, J. said:

In my view, the monstrosity of the situation in the present case would undoubtedly warrant the issue of writ to the third respondent even if it is a

private institution. On the admitted facts of the case, it is seen in that the services of the Head Master of the School are terminated on a very

serious charge of misbehaviour with a lady teacher and other charges without giving an opportunity to him to deny the same. It is a shocking state

of affair that the management of an educational institution should throw to the winds the elementary principles of natural justice in dealing with its

Headmasters, who is at the helm of affairs on the academic side. This is a case in which the Court should exercise its prerogative power and would

be failing in its duty if it chooses to remain a mute witness to the situation on the ground that the third respondent is not a statutory authority.

Srinivasan, J. has particularly referred to his previous judgment and said:

I had an occasion to consider the question in detail in The Central Co-operative Bank Ltd. Vs. M. Parthasarathi, . I had referred to the decision of

the Supreme Court in Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, and some other

decisions and held that the specific relief of enforcing a contract of service or declaring the termination of service to be ineffective or null and void,

could be granted in certain circumstances.

There are useful observations in a judgment of the Supreme Court, which is binding upon this Court under Art. 141of the Constitution of India

in the case of Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and Others, Dealing with the case of a school teacher,

whose services were terminated by the Managing Committee of an Aided School, the Supreme Court considered the objection as to whether a

writ would issue and observed as follows:

The High Court declined to grant any relief on the ground that an aided school is not ''other authority'' under Art. 12of the Constitution and is

therefore not amenable to the writ jurisdiction of the High Court. The High Court clearly overlooked the point that Deputy Commissioner and

Commissioner are statutory authorities operating under the 1969 Act. They are quasi-judicial authorities and that was not disputed. Therefore, they

will be comprehended in the expression ''Tribunal'' as used in Art. 227of the Constitution which confers power of superintendence over all courts

and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction. Obviously, therefore, the decision of the

statutory quasi judicial authorities which can be appropriately described as tribunal will be subject to judicial review, namely a writ of certiorari by

the High Court under Art. 226of the Constitution. The decision questioned before the High Court was of the Deputy Commissioner and the

Commissioner exercising powers under S.3of the 1969 Act. And these statutory authorities are certainly amenable to the writ jurisdiction of the

High Court.

The matter can be viewed from a slightly different angle as well. After the decision of the Constitution Bench of this Court in Ajay Hasia and

Others Vs. Khalid Mujib Sehravardi and Others, the aided school receiving 95% of expenses by way of grant from the public exchequer and

whose employees have received the statutory protection under the 1969 Act and who is subject to the Regulations made by the Education

Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid, must be approved by the Director of Public

Instruction, would certainly be amenable to the writ jurisdiction of the High Court. The High Court unfortunately, did not even refer to the decision

of the Constitution Bench in Ajay Hasia''s case rendered on November 13, 1980 while disposing of the writ petition in 1983. In Ajay Hasia''s

case, Bhagwati, J, speaking for the Constitution Bench inter alia observed that the financial assistance of the State is so much as to meet almost

entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. Add to

this the existence of deep and pervasive State control which may afford an indication that the Corporation is a State agency or instrumentality,

Substituting the words ''public trust'' in place of the ''corporation'' the reasons will mutatis mutandis apply to the school. Therefore, also the High

Court was in error in holding that the third respondent school was not amenable to the writ jurisdiction of the High Court.

What is culled out thus as the law stated by the Supreme Court and binding on all the High Courts and equally any other Court or authority or

person is:

(i) The High Court''s power under Art. 226of the Constitution is as wide as the amplitude of the language used indicates and so can affect any

person even a private individual and be available for any other purpose, even one for which another remedy may exist.

(2) Strictly speaking, the inhibitions recognised by the Courts in England upon the powers of the Courts to issue prerogative writs do not operate in

India except as self-imposed restrictions by the Courts themselves.

(3) Wise and clear restraints on the use of extraordinary remedy have been indicated in various pronouncements of the Supreme Court, and High

Courts will not go beyond those wholesome inhibitions. However, where the situations warrant or exceptional circumstances cry for timely judicial

interdict or mandate, the Court shall have the power to issue any writ, order or direction. In the words of the Supreme Court ""the mentor of law is

justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and

large, been the people''s sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights.

(4) Mandamus, certiorari and prohibition are recognised as public law remedies. They are not available to enforce private law rights.

(5) The word ''authority'' in Art. 220of the Constitution of India is not restricted to the same meaning as the words other authorities should receive

in the definition of the ''State'' in Art. 12of the Constitution of India. The former must receive a liberal meaning. The matter is relevant only for the

purpose of enforcement of fundamental rights. The High Court''s power under Art. 226of the Constitution of India, however, unlike the power of

the Supreme Court under Art. 32of the Constitution of India is more pervasive in the sense that it can issue writs for enforcement of fundamental

rights as well as non-fundamental rights. The words ""Any person or authority"" used in Art. 226are therefore not to be confined only to statutory

authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is

not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation

owed by the person or authority to the affected party. No matter by what means the duty is imposed.

(6) The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It

should remain flexible to meet the requirements of various circumstances.

This analysis of mine is almost echoed from what the Supreme Court has said in one of its latest judgments in Chander Mohan Khanna Vs. The

National Council of Educational Research and Training and other[OVERRULED], . The Supreme Court has said in this judgment as follows:

Art. 12should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the

expression ""State"". A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern

concept of welfare State, independent institution, corporation and agency are generally subject to State Control. The State control does not render

such bodies as ""State"" under Article 12. The State control, however, vast and pervasive is not determinative. The financial contribution by the State

is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and

rendering of an important public service being the obligatory functions of the State may largely point out that the body is ""State"". If the Government

operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little

difficulty in identifying the body as ""State"" within the meaning of Art. 12of the Constitution. (See : (i) P.K. Ramachandra Iyer and Others Vs. Union

of India (UOI) and Others, : (ii) Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, and (iii)

Tekraj Vasandi alias K.L. Basandhi Vs. Union of India (UOI) and Others,

Now the next, however, relevant question to be answered is how the Court shall know that the authority concerned is a ''State'', under Art.

12of the Constitution or if it is not a State it is an authority charged with a public duty for the purpose of Art. 226of the Constitution of India. It is

well-settled by the pronouncements of the Supreme Court, some of which have already been referred to by me, that how the body has been

constituted is a test, but not a conclusive test. If it is a body created by or under a statute, it is a statutory authority conforming to the definition of

State under Art. 12of the Constitution of India. If it is not a body created by or under a statute, still it can be a State, irrespective of its creation, if it

is under deep and pervasive State control. We shall be decades behind, if we still labour under the impression that for being a ''State'' under Art.

12of the Constitution, the person or body concerned must owe its birth to a statute. The decisions of the Supreme Court in this behalf starting from

Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, and Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and

Others, indicated six tests for determining whether a particular society or a company, which is not created by or under a statute is an ''authority''

within the meaning of Art. 12. The tests are:-

(1) If the entire share capital of the corporation (society or company) is held by the Government, it would go a long way towards indicating that the

corporation is an instrumentality or agency of the Government.

(2) Where the financial assistance of the State is so much to meet almost the entire expenditure of the Corporation, it would afford some indication

of the Corporation being impregnated with governmental character,

(3) Where the corporation enjoys monopoly status which is State-conferred or State-protected, that will also be a relevant factor but not the real

character of the corporation.

(4) Deep and pervasive State control will be another test or indication that the Corporation is a State agency or instrumentality.

(5) if the functions of the Corporation are of public importance and closely related to governmental functions, it would be another relevant

consideration to classify it as an instrumentality or agency of Government.

(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the

corporation being an instrumentality or agency of Government.

It has been clearly stated by the Supreme Court that a Corporation to be characterised as an instrumentality or agency of the State need not satisfy

all the six tests. The Supreme Court, however, has not specified how many of them should be satisfied in a given case. It has to be determined in

each case, having regard to the totality of the circumstances.

When a State gives to the executive Government of the State or any of the functionaries of the State authority to interfere with the

administration and to be in control of the affairs of the corporations, bodies or persons, who otherwise are not in the category of ""any other

authority"" as mentioned in Art. 12of the Constitution of India, and the control is noticeable in relation to the corporations, bodies or persons, in the

position of statutory authorities, who, but for the authority under the statute, may not be characterised as one vested with the statutory functions, it

will be a ''State.''

That a certain body, corporation or a society does not satisfy the above tests, is not enough to say that it is not an authority for the purpose of

Art. 226of the Constitution. Even if such a legal person or entity is not an official body, if it is held that a statutory duty or a public duty is imposed

by a charter, common law, custom or even contract, it shall be an authority amenable to the writ of mandamus, certiorari, prohibition or quo

warranto. Thus the form of the body concerned, for the purpose of Art. 226of the Constitution of India, is not very much relevant. What is relevant

is the nature of the duty imposed on the body and the duty must be judged in the light of positive obligation owed by the person or authority to the

affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.

Coming to the Full Bench judgment in the case of Tamilarasan (supra), it is noticeable that, it has referred to a large number of judgments and

pronouncements of this Court and other High Courts and the Supreme Court, but has said, without adverting to any of the principles that are

recognised by the Supreme Court, that a co-operative society is not an authority nor an instrumentality or agency of the Government to attract Art.

12of the Constitution and, therefore, not amenable to writ jurisdiction under Art. 226of the Constitution. The question referred to the Full Bench

was, on the facts of that case, whether a writ would lie against a co-operative society under Art. 226of the Constitution of India. The answer to

that question, as I have already noticed, cannot be an emphatic ''no''. It however, shall be different, if the question is confined to issue of writ of

mandamus, certiorari, quo warranto and prohibition. There again, a ''no'' or ''nay'' will be an incorrect answer in the teeth of the judgments of the

Supreme Court. The answer will be that a writ will not ordinarily lie, unless it is shown, as in the case of Ajay Hasia and Others Vs. Khalid Mujib

Sehravardi and Others, ) and other cases, that it is an agency or instrumentality of the State or the writ is sought with respect to a public duty.

What the Full Bench thus decided in this behalf has to be read as being confined to functions, which cannot be classified as a public duly or a

positive obligation imposed by a Statute or a charter, common law, custom or even contract. Since we are concerned in the instant case with a

superseded co-operative society in the hands of a Special Officer, however, no further discussion of the view taken by the Full Bench as to the

maintainability of a writ petition against the actions of a co-operative society is necessary. The Full Bench, however, having pointed out that a

cooperative society is a body which, after having come into existence, is governed in accordance with the provisions of the statute; in other words,

a cooperative society does not owe its very existence to any statute, which would be the fountainhead of its powers, that it can be held that, even if

there is no statute, a cooperative society can have a legal existence, said:

Whether the fact that whenever the governing body it superseded and in its place a Special Officer or other Government official is appointed to

administer the affairs of the society makes any difference has to be considered now. We are of the view that having regard to the decision of the

Supreme Court in S.S. Dhanoa Vs. Municipal Corporation, Delhi and Others, ) the position is that it does not make any difference. Any officer

appointed in the place of the governing body and discharging the functions as such definitely is not a Government servant. In the case referred to

above the Supreme Court has clearly held that when the services of an Indian Administrative Officer are placed at the disposal of a co-operative

society, he was not discharging the functions as a public servant

In the case the Supreme Court has positively held as follows:

Whatever has been said with regard to the Council of Scientific and Industrial Research which was a society registered under the Societies Act,

equally applies to the Co-operative Store Limited, which is a society registered under the Bombay Co-operative Societies Act, 1925. It is not a

statutory body because it is not created by a statute. It is a body created by an act of a group of individuals in accordance with the provisions of a

statute.

The above passage places beyond doubt that a cooperative society is not a statutory body.

The Full Bench failed to notice the judgment of the Supreme Court in Central Inland Water Transport Corporation Limited and Another Vs.

Brojo Nath Ganguly and Another, wherein S.S. Dhanoa Vs. Municipal Corporation, Delhi and Others, has been explained and it is said:

As stated in the opening paragraph of the judgment in the said case the question before the Court was whether the appellant was a public servant

within the meaning of Clause Twelfth of S.21of the Indian Penal Code for purposes of S.197of the Code of Criminal Procedure. The relevant

provisions of Clause Twelfth of S.21are as follows:

Public servant-

The words ''public servant'' denote a person falling under any of the descriptions hereinafter following, namely: -

x x x

Twelfth.- Every person-

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government:

(b) in the service or pay of a local authority, a corporation established by or under a Central (Provincial or State Act or a Government company as

defined in S.617of the Companies Act, 1956.

The Court pointed out that clause Twelfth did not use the words ""body corporate"" and, therefore, the question was whether the expression

corporation"" contained therein taken in collocation of the words ""established by or under a Central or Provincial or State Act"" would bring within

its sweep a cooperative society. The Court said (at page 437 of SCR): (at p-1398 of AIR):

In our opinion, the expression ''corporation'' must, in the context, mean a corporation created by the legislature and not a body or society brought

into existence by an act of group of individuals. A co-operative society is, therefore, not a corporation established by or under an Act of the

Central or State legislature.

Apart from the omission in noticing the judgment of the Supreme Court in the case of Central Inland Water Transport Corpn. Ltd. (supra), the

omission to notice the relevant provisions of the Act under which the Special Officer is appointed and their effect, is eloquent. The Tamil Nadu Co-

operative Societies Act, 1961, contemplated in S.72about supersession of committee and appointment of a Special Officer to exercise all or any

of the functions of the Committee or of any officer of the society and to take such action as may be required in the interests of the society, subject

to the control of the Registrar (The Registrar appointed by the State Government under S.3of the Act.) The Special Officer unless appointed in

exercise of power by the Registrar under S.72(1)(a) of the 1961 Act cannot exist. He also cannot exercise any functions other than the functions

assigned under sub-S.(3) of S.72and that too subject to the control of the Registrar and to such directions as the Registrar may from time to time

give. The position of the Special Officer appointed under 1983 Act is not different. Ss. 88and 89of 1983 Act empower the Registrar to supersede

the Board of a Co-operative Society and appoint a Government servant called the Special Officer to manage the affairs of the society for a

specified period not exceeding one year. S. 88(3) says:

The Special Officer appointed under sub-S.(1) shall, subject to the control of the Registrar and to such directions as he may, from time to time,

give, have power to exercise all or any of the functions of the board of any officer of the society and to take such action as may be required in the

interest of the society.

Sub-S.(2) of S.89refers to sub-S.(3) of S.88for the powers of the Special Officer. How Special Officer is appointed and what powers he can

exercise under Act 25 of 1976 has already been referred to earlier. The Special Officers thus owe this birth to the order passed by the Registrar of

Co-operative Societies or the Government of the State and they are vested with the power to appoint a Special Officer only under the statute. The

Special Officer gets his powers only because the Acts give him power. He does not get it otherwise. He thus is none else, but one, who is a

creature of the statute. He is appointed under the statute and functions under the statute, thus performs duties which statute alone empowers him to

perform.

The Division Bench in A. Natarajan and others Vs. Registrar of Co-op. Societies and others, has referred to the Tamil Nadu Co-operative

Societies (Appointment of Special Officers) Act, 1976, to state:

This being the character of the Special Officer and the situation in which a Special Officer is appointed by the State Government, the only inference

possible is that the State Government in the event of supersession of a regular committee of the board assume all the powers to decide how to

administer the society and the Special Officer, who comes to administer the society, comes as none else than an agent or instrumentality of the

State Government.

This may not be apt and full to describe the Special Officer but is in tune with the law that has been stated by the Supreme Court and noticed by

me above.

I have given my anxious thoughts, particularly in view of the declaration by a Full Bench of this Court in Tamilarasan''s case (supra) and

pondered, can I follow the dictates of this Full Bench judgment? I am, however, convinced more than before that the observation of the Full Bench

that it will make no difference if the Society is superseded and in its place a Special Officer or other Government official is appointed to administer

the affairs of the society, is per incuriam and is not a binding precedent.

The Full Bench in W.P. No. 6191 of 1990 was specifically asked to say:

Can the judgment of the Full Bench in R. Thamilarasan, J. Rajesekaran, C. Karamani, D. Ramanujam and P. Kannan Vs. The Director of

Handlooms and Textiles, Madras and Others, ) be characterised as one ""per incuriam"" or ""obiter dicta"", as opined by the Division Bench of this

Court in A. Natarajan and others Vs. Registrar of Co-op. Societies and others,

The Court''s judgment, however, is delivered by first recording that this is the first time in the long history of this Court, the judgment of a Full

Bench is thrown over-board with the label per incuriam and brushed aside as obiter dicta by a Division Bench, as if there has been some sacrilege

committed by the Division Bench. The statement in this judgment:

It is common knowledge than Full Benches are constituted specially for deciding specific questions referred to them. The judgment of the Full

Bench is binding precedent as it expresses the collective opinion of the Court as such. It is binding on a single Judge as well as a Division Bench

until it is reversed by a higher court.

is staling the obvious. It is, however, a precedent and it must thus satisfy the characteristics of a precedent. This judgment is almost a digest of the

effect of a binding precedent and the meaning which the expressions per incuriam and ""obiter dicta"" should receive. It will be no use thus creating a

new digest instead of one in the Full Bench, but to reiterate that a precedent is not binding if it was rendered in ignorance of a statute or a rule

having the force of a statute. The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to and had

not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its

relevance to the matter in hand. Such a mistake is again per incuriam as to vitiate the decision. (See Bristol Aeroplane Company Case 1944 2 All

ER 293

The latin expression ""per incuriam means through inadvertence."" A decision can be said generally to be given per incuriam when the Court has

acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of the Supreme Court (See Punjab

Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, . This has got a

direct bearing on the rule of ratio decidendi. In England a decision is said to be given per incuriam, when the court has acted in ignorance of a

decision of the House of Lords. In the former case it must decide which decision to follow and in the latter it is bound by the decision of the House

of Lords. However, ""a prior decision of the House of Lords inconsistent with the decision of the Court of Appeal, but which was not cited to the

Court of Appeal, will make the later decision of the Court of Appeal of no value as given pa incuriam."" Punjab Land Development and

Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, This in the Indian hierarchy of Courts,

will mean that a decision of the High Court inconsistent with the decision of the Supreme Court will be of no value as given per incuriam.

The Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court,

Chandigarh and Others, has said:

An analysis of Judicial precedent, ratio decidendi and the ambit of earlier and later decisions is to be found in tin House of Fords decision in F.A.

& A.B. Ltd. v. Lupton (Inspector of Taxes) (1972 A.C. 634 : 1971 3 All ER 948). Lord Simon concerned with the decisions in Griffiths v. J.P.

Harrison (Watford) Ltd. (1963 A.C. 1: 1962 1 All ER 909) and Finshury Securities Ltd. v. Inland Revenue Commissioner (1960 1 WLR 1402 :

1966 3 All ER 105) with their inter relationship and with the question whether Lupton''s case (1972 A.C. 634) fell within the precedent established

by the one or the other case, said: (A.C. 658)

....What constitutes binding precedent is the ratio decicendei of a case, and this is almost always to be (sic) rtained by an analysis of the material

facts of the case (sic)erally those facts which the tribunal whose decision is in question itself holds, expressly or implicitly, to be material.

It has also been analysed: (A.C.pp. 658-59)

A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllogism, with the major premise

consisting of a pre-existing rule of law (either statutory or judge-made) and with the minor premise consisting of the material facts of the case under

immediate consideration. The conclusion is the decision of the case, which may or may not establish new law ...in the last majority of cases it will

be merely the application of the existing law to the facts judicially ascertained. Where the decision does constitute new law, this may or may not be

expressly stated as a proposition of law; frequently the new law will appear only from subsequent comparison of on the one hand, the material

facts inherent in the major premise with, on the other, the material facts which constitute the minor (sic). As a result of this comparison it will often

be apparent that a rule has been extended by an analogy expressed or impleaded

To consider the ratio decidendi of a case we have therefore to ascertain the principle on which the case was decided. Sir George Jessel in

Osborne v. Rowlatt 1880 13 Ch D. 774, remarked that (Ch D p. 785) the only thing in a Judge''s decision binding as an authority upon a

subsequent Judge is the principle upon which the case was decided.

The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process the ratio

decidendi which the Judges who decided the case would themselves have chosen may be even different from the one which has been approved by

subsequent judges. This is because judges, while deciding a case will give their own reasons but may not distinguish their remarks in a rigid way

between what they thought to be the ratio decidendi and what were their obiter dicta, that is things said in passing, having no binding force, though

of some persuasive power. It is said that a judicial decision is the abstraction of the principle from the facts and arguments of the case"". ""A

subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application"". The submissions of Mr.

Venugopal that for the purpose of ratio decidendi, the question is not whether a subsequent bench of this Court thinks that it was necessary, or

unnecessary for the Constitution Bench or the earlier bench to have dealt with the issue but whether the Constitution Bench itself thought it

necessary to interpret S.2(00) for arriving at the final decision has to be held to be untenable in this wide and rigid form.

In yet another judgment reported in State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, the Supreme Court has said:

Incuria ''literally means ''carelessness''. In practice per incuriam appears to mean for ignoratium. English courts have developed this principle in

relation of the rule of stare decis. The ''quotable in law'' is avoided and ignored if it is rendered in ignoratium of a statute or other binding authority.

Young v. Bristol Aeroplane Co. Ltd. (1944) 1 KB 718 : 1944 2 All ER 293). Same has been accepted approved and adopted by this Court

while interpreting Article 141of the Constitution winch embodies the doctrine of precedents as a matter of law. In Jaisri Sahu Vs. Rajdewan Dubey

and Others, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage

from Halshury''s Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.

Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such

conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents.

It has been explained as rule of sub-silentio. ""A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase,

when the particular point of law involved in the decision is not perceived by the Court or present to its mind."" (Salmond on Jurisprudence 12th

Edn.. p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. 1941 1 KB 675, 677 : 1941 2 All ER 11 the Court did not feel

bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the

authority"". It was approved by this Court in Municipal Corporation of Delhi Vs. Gurnam Kaur, . The bench held that precedents sub-silentio and

without argument are of no moment. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust

precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law

declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which

escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao Vs. The Union Territory of Pondicherry, it was observed, it

is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein. Any declaration

or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a

general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits

is inimical to the growth of law.

Any declaration or conclusion arrived at without application of mind or preceded without any reason cannot be deemed to be declaration of

law or authority of a general nature binding as a precedent. The decision is binding not because of its conclusion, but in regard to its ratio and the

principles laid down therein. Should then not Judges of this Court, as observed by the Supreme Court, relieve themselves form injustice that is

likely to occur in accepting the judgment of the Full Bench with respect to the powers of this Court to issue writs with respect to actions of the

Special Officer appointed under the statute, when this aspect of the law was not at all gone into by the Full Bench in the case of Tamilarasan

(supra). The inadvertence of the court in observing about the effect of supersession of the managing committee or Board of Management and the

control of the Special Officer is so glaring that the judgments delivered by two of the three Judges constituting the Bench were not cited before

them as well as, other judgments on the point were not in their mind at all. Since this Full Bench in the case of Tamilarasan is against the law stated

by the Supreme Court and is delivered mainly relying upon the judgment in Dhanoa''s case without taking notice of the judgment of the Supreme

Court in Central Inland Water Transport Corporation Ltd., (supra) which has given almost the same meaning to the ratio in Dhanoa''s case (supra)

as the Division Bench judgment in Natarajan''s case (supra), it is indeed a judgment delivered without due regard to the law of the land on the

subject as declared by the Supreme Court, and for this reason alone besides the reasons stated in Natarajan ''s case it is per incuriam. It is

noticeable that A.P. Sen, J. was a party in Dhanoa''s case as well as in Central Inland Water Transport Corporation Ltd.

In W.P. No. 6191 of 1990 Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, the Full Bench has said:

The basic principle on which ""S.S. Dhanoa"" was decided was that a Co-operative society was not a statutory body as it was not created by a

statute. The change in the management of the society by supersession of the entire Board of Management, statutorily or otherwise, or placing the

management in the hands of a Government servant without superseding the Board of Management would not make any difference in the eye of law

in view of the basic principles that a society is not a statutory body as it is not a creature of a statute. We do not find any error in the reasoning of

the Full Bench in Tamilrasan''s case (1991 2 L.M. (F.R.).

This observation has been made, with respect, in ignorance of the judgment of the Supreme Court in the Central Inland Water Transport

Corporation Ltd''s case. Since here, once again the same error has been committed which the Full Bench in Tamilarasan case committed, the other

observation in this judgment:

Even assuming for the sake of argument without admitting that the reliance placed by the Full Bench on ""S.S. Dhanoa"" was erroneous, it would not

make the judgment per incuriam. It would at the worst be only an erroneous understanding of the judgment of the Supreme Court by tin Full

Bench. That will not certainly render it per incuriam.

is an observation that will lose all subslanci and show that, in this respect, once again, no serious effort has been made to deduce the ratio

decidendi; and once the error goes to the core, the binding effect is lost.

I have made a sincere effort to read in the judgment of the Full bench in Tamilarasan''s case any examination of the provisions of the Act under

which the Special Officer is appointed Except a mention in these words the contention of the Learned Counsel that

in cases where the Board of Directors is superseded and special officers are appointed, they must be considered to be public authorities as they

were appointed under the provisions of Tamil Nadu Act 25 of 1976. A look into the preamble to Act 25 of 1976 and Ss.3and 4will support the

contention that the Society is amenable to writ jurisdiction

There is no discussion of any of the provisions of Act 25 of 1976 in the entire judgment. It is nowhere stated by the Full Bench in its judgment how

and why it can be said that a Special Officer appointed under the Act is not a statutory authority or that he has not been performing a statutory

duty and that he shall, in spite of all that the Act does to him, be in place of a co-operative society as if he existed without any support from the

statute. It is a judgment thus which does not show any application of mind, does not disclose any reason and does not make any reference to such

judgments of the Supreme Court and such other judgments of this Court, which have gone into this aspect of the matter, including the judgments

delivered by at least two of the three Judges constituting the Full Bench. Further, the Full Bench judgment in W.P. No. 6191 of 1990 Philip

Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, to say the minimum, has proceeded without any care to notice the law

stated by the Supreme Court in its judgment in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and

Others Vs. V.R. Rudani and Others, . This judgment was before the Division Bench in Natarajan''s case, (1991-1-L.W. 420) which has fully

adverted to it. This judgment which was also before the Full Bench, which decided W.P. No. 6191 of 1990 Philip Jeyasingh Vs. The Joint

Registrar of Co-operative Societies and Others, is a binding precedent. Yet, it is not said in the Full Bench judgment why this Court will not be

bound to follow the rule of law as stated by the Supreme Court in Shri Anadi Mukta Sadguru S.M.S.J.M.S. Trust v. V.R. Rudani (supra) and

instead, followed the command of the Full Bench in Tamilarasan''s case. It is indeed strange how all that had been said in a catena of decisions of

the Supreme Court and this Court about the writ jurisdiction of the Court as well as the restraint the courts would exercise in issuing writs of

mandamus and certiorari, were completely sidelined; not even referred to as if they never existed. Two of the three Judges constituting the Full

Bench, who earlier decided in favour of issuing writs against the Special Officer on the ground that he or she was a statutory authority, said that

they affirm that Tamilarasan''s case was a binding precedent, without any argument, without any reference to the crucial aspects in the judgments of

the Supreme Court and Art. 226of the Constitution itself and without any citation of the authorities that I have noticed earlier in my judgment and

even without bestowing any care to distinguish the judgments of the Supreme Court cited before them and referred to by them. This judgment of

the Full Bench in Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, say with respect, is not a binding precedent at all.

Before I proceed further, I may clarify that the Full Bench in W.P. No. 6191 of 1990 (1992-1-L.W. 216) has remarked that the Brij Bihari

Singh 1989 37 2 BLJR 219 proceeded on the footing that the relevant Bihar Act had superseded the societies themselves and it is also noted that

the management of the society had vested in the Government under Bihar Act and administrators were appointed pursuant thereto and said:

But under the Tamil Nadu Act of 1976 the management of the Society has not vested in the Government. We have already noted that the said Act

has substituted only the Board of Management by the Special Officer and has not changed the character or status of a co-operative society. S.5of

the Act keeps in tact the applicability of the provisions of the Co- operative Societies Act and the Rules made thereunder to a Special Officer

except as otherwise provided in S.4thereof. Under S.4, the Special Officer shall have the same power to exercise all or any of the functions of the

Management Committee or Hoard of Management of the Society. His remuneration is made payable from the funds of the society and not from

Government funds. A comparison of the provisions of Tamil Nadu Act 25 of 1976 with those of the Bihar Act as found in the judgment in Birj

Bihari singh case 1989 37 2 BLJR 219 shows that the two Acts are entirely different and they are not pari inateria. The Division Bench is,

therefore in error in holding that the reasoning in Brij Bihari Singh case 1989 37 2 BLJR 219 would hold good with reference to Tamil Nadu Act

XXV of 1976 and that the Full Bench is per incuriam inasmuch as it has not adopted that reasoning.

Has the Division Bench in Natarajan''s case said so? The Division Bench has said, that under the scheme of the 1976 Act, the State

Government would appoint a person as a Special Officer for each scheduled co-operative society and quoted S.4of the Act in extenso and then

said.

(1) The Appointing Authority of a Special Officer is the State Government, and

(2) The Special Officer, if appointed, is subject to the control of the Registrar and to such directions, as the Registrar may, from time to time give.

�

His remuneration is also fixed by the State Government, although paid out of the funds of the scheduled cooperative society He comes to act only

when the regular committee of the Board is superseded and then he functions exercising the powers of the board or the committee, as the case

may be, subject to the provisions of the Co-operative Societies Act and the rules made thereunder, except as otherwise provided in S.4of the

Special Act or S.5of the Special Act.

On that Division Bench has opined.

What follows from this is that the democratic process of the constitution of the society is brought to a naught at a point and a Special Officer is

assigned the responsibilities and powers of the elected Committee or Board. This power to supersede the elected committee or board is retained

in the State Government by the provisions of the Act and the power to appoint the Special Officer is also given to them. This being the character of

the Special Officer and the situation in which a Special Officer is appointed by the State Government, the only inference possible is that the State

Government in the event of supersession of a regular committee or the board assume all the powers to decide how to administer the society and

the Special Officer, who comes to administer the society, comes as none else than an agent or instrumentality of the State Government.

The Division Bench has again said:

It appears that before the Full Bench of this Court that aspect of the law was not placed or canvassed, under which a court of law can genuinely

take the view that the management, which originally stood in the hands of a committee or a Board created in accordance with a statute, but not

created by or under a statute, when superseded ceased 10 have its original character and the administration stood transferred in the hands of a

person, who was a creature of a statute, and who, is under the statute itself.

Having said so, the Division Bench has said:

A somewhat similar provision in S.41(6) of the Bihar and Orissa Co-operative Societies Act, 1935 came up for consideration before a Division

Bench of the Patna High Court in Brij Bihari Singh v. State of Bihar 1989 37 2 BLJR 219

and quoted from the judgment of the Patna Court. For saying that the judgment of the Full Bench in the case of Tamilarasan is per incurium, the

Division Bench has said:

We have good reasons, on the basis of what we have noticed as above to hold that the full Bench judgment, in so far as it states that it will make

no difference, if any regular governing body committee board is superseded and in its place a Special Officer or oilier Government official is

appointed to administer the affairs of the society, the judgment of the Court in this respect is per incuriam because, the statement of law as found in

the case of Brij Bihari Singh 1989 37 2 B.L.J.R. 219 was has not been taken notice of and is also an obiter dicta as the only question before the

Full Bench was whether a writ would lie against a cooperative society under Art. 226of the Constitution of India, and not, whether a writ will lie

against a Special Officer or other Government official appointed to administer the affairs of the superseded society. The judgment of the Full Bench

is per incuriam also for the reason that relevant provisions of the Tamil Nadu Co-operative Societies (Appointment of Special Officers) Act. 1976,

which we have taken notice of were not noticed by it.

The judgment of the Patna Court in Brij Bihari Singh''s case has been affirmed by the Supreme Court in S.L.P.(C) Nos. 11401, 1150 and 11507

of 1989 (judgment dated 14.12.1989). It is indeed curious why the author of the Full Bench judgment in W.P. No. 6191 of 19911 thought that the

Division Bench deciding Natarujan''s case was un aware of the fact that Patna Case was decided after the Tamilarasan''s case. I was a member of

the Bench which decided Brij Bihari Singh''s case in Patna and a member of the Bench which decided Natarajan''s case in Madras. There is

nothing in the judgment of the Division Bench in Natarajan''s case even indirectly to suggest that the statement of law as found in the case of Brij

Bihari Singh is exclusive of Patna. It only says the statement of law as found in that judgment, a statement of law as culled out from the

pronouncements of the Supreme Court and other authorities, which create a binding precedent and a binding lay under Art. 141of the Constitution

of India. What is really intriguing, however, is why the Full Bench in deciding W.P. No. 6191 of 1990 (1992 1 L.W. 216) got no information

about the various judgments of the Supreme Court and the previous judgments by at least two of them and why did the not say in their judgment

that their earlier view for a particular or for more than one reason is no acceptable. The Full Bench in W.P. No. 6191 of 1990 (1992-1-L.W.

216) thus is a judgment in default of the information as to the correct position in lay of the Special Officer and the duties that the Special Officer is

required to perform. It is some what strange that a Bench, which noticed at the outset that it is common knowledge that the Full Benches are

constituted specially for deciding specific questions referred to them found it exceptional when the Division Bench of this Court in Natarajan''s case

observed that the observation of the Full Bench with respect to the status of the Special Officer were obiter dietu. The digest or this in the

judgment in W.P. No. 6191 of 1990 Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, is as voluminous as the digest

on per incuriam. I will not, therefore, repeal that exercise. Obiter dicta has also got a meaning all things said in passing having no binding force

though some persuasive power (See. 1990 SCC 682 supra). Can it be then said that the Division Bench in Natarajan''s case was not sure whether

the hull Bench was per incuriam or was obiter dicta. It was per incuriam for the reason that it declared a law on the subject of the exercise of

power of this Court under Art. 226of the Constitution of India in the case of impugned action by a Special Officer, ignoring the decided principles

of law including the binding judgments of the Supreme Court of India and a catena of decisions of this Court on the subject as well as without

proper deliberations and considerations of the relevant provisions of law and obiter dicta because they made observations in this regard in passing,

thus having no binding force.

A judgment of a Court is not an edict or a commandment or a dictate. It is an authority as a precedent not by reason of its authority as a

judgment, but for the authority of its reasons. If the Courts are not allowed freedom to analyse and understand the ratio decidendi of a case and

rather made to act under the weight of the so called reason of authority of a Full Bench, which authority gives no reason as to why it is making such

a rule of law or when it is making such a rule of law, in doing so, it shows inadvertence, ignorance and state things which go against the binding

principles of law stated by the Supreme Court of India, the Court shall become almost a despot. Should anyone lake offence to a judge''s

understanding of a precedent and observations as to its effect? I am informed that there are about 27,000 co-operative societies in the State and

the number of employees may be in lakhs. It has been almost for more than a decade that these societies have been under the control of the

Special Officers except for a short period of a few months. Many of the disputes have been kept out of the reach of the regular civil courts by

virtue of the provisions in Ss. 89and 100of the 1961 Act, and Ss. 156and 176of the 1983 Act. Perhaps the employees, disputing the actions

governing their service rights under the by-laws of the society and/or under the command of the Rules and the provisions of the Act, can raise an

industrial dispute, provided, they satisfy the definition of workman under the Industrial Disputes Act and the society is found to be an industry.

They thus are rendered with no legal remedies, equally efficacious and expedient. So far as reference to an industrial dispute to a Court or Tribunal

is concerned, except in certain type of cases when workmen can move, the State Government alone has to be moved. It has got the discretion to

refer or not to refer. Whether a Court can exercise its power under Art. 226of the Constitution of India to refer the dispute to a Court or Tribunal

is, however, a different issue. For the reason of the fact-situation, to borrow the words of one of the Judges constituting the Full Bench in W.P.

No. 6191 of 1990 Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, :

The monstrosity of the situation would undoubtedly warrant the issue of writ even to a private institution.

Coming to the facts of the instant case, it is conceded that the impugned order has been passed in a proceeding without affording any

opportunity of being heard to the petitioner. He has been given a permanent appointment. The same was sought to be terminated cm a ground

extraneous to the grounds on which services of a permanent employee can be terminated. Since the action was taken on extraneous

considerations, it is mala fide in law (See Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, . In the case of The Central Co-

operative Bank Ltd. Vs. M. Parthasarathi, one of the Judges constituting the Full Bench in W.P. No. 6191 of 1990 Philip Jeyasingh Vs. The Joint

Registrar of Co-operative Societies and Others, has said:

In the case of individuals entering into a contract of service, the position is entirely different. As regards the individuals, there are no set of rules

which have to be obeyed by the master, though the master may frame rules to be obeyed by the servants. The matter entirely depends upon the

will or rather, the whims and fancies of the master. He may choose to dismiss a servant on any minor pretext But still the servant cannot enforce the

contract of service and compel the master to continue his services. In such cases, the remedy of the servant maybe to claim damages. But the

position is different in the case of institutions. With regard to institutions, the employer is the institution itself and not the individual in management

for the time being. The society or corporate body which is a legal entity is the employer. The person who acts on behalf of that employer is an

individual who is liable to be transferred and whose position is liable to be changed in course of time. For example, this appellant Bank is managed

at present by one Special Officer. Within a few years, another special Officer may come in his place and his understanding of the rules may be

different. If a Special Officer acts in a manner which is against the by-laws of the society or which is against the rules prescribed for the conduct of

the management of the society, then such conduct cannot bind the society itself, in other words, the employer. In that context, if the position is

viewed, it can be easily seen that the principle that a contract of employment cannot be enforced between two parties and it depends upon the

volition of the parties may not be fully applicable. In this case, the volition of the parties cannot depend upon the individual whims and fancies of the

particular person in management of the society. On the facts of this Case, it has been held that the Special Officer has acted mala fide....Once it is

held on the facts that the order of the Special Officer is vitiated by mala fides and that the Special Officer has no power under the by-laws to

suspend any employee of the society on the ground that some criminal proceedings are pending against him, it will be travesty of justice for a Court

of law, even if it is a court of equity, to keep its hands off in such circumstances.

The matter can be viewed in another angle, that the order having been passed without affording opportunity of being heard to the petitioner, is

violative of the principles of natural justice (See E.P. Royappa Vs. State of Tamil Nadu and Another, have already found that the Special Officer is

a statutory authority and thus it satisfies the definition of a State under Art. 12of the Constitution of India. A fundamental right of the petitioner has

thus been violated by the respondent/Special Officer. The termination of the service, for this reason also, is fit to be quashed.

My conclusions are:

(1) The two Full Bench judgments in R. Thamilarasan, J. Rajesekaran, C. Karamani, D. Ramanujam and P. Kannan Vs. The Director of

Handlooms and Textiles, Madras and Others, and in Philip Jeyasingh v. The Joint Registrar of Co-operative Societies and two others W.P. No.

6191 of 1990 Judgment dated 22-1-1992 Since reported in Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, in so

far as the power to issue a writ to command the Special Officer holding charge of the management of a co-operative society is concerned, are per

incuriam and the statement of law by them in this behalf is obiter dicta and for the reasons as above, they are not binding precedents.

(2) A writ will issue depending upon the nature of the writ or a direction or order that will be given or made and upon the nature of the action of the

co-operative society. If the society is under the management of a board or committee, which does not owe its existence to any statute, the Court

shall not issue a writ in the nature of mandamus, certiorari, quo warranto or prohibition unless it is found that for the reason of the State Control,

the society has converted itself into an instrumentality or agency of the State or otherwise unless it is found that it has a binding obligation to

discharge, whether the obligation is under a statute, a charter, a covenant, common law, custom or even contract.

(3) The Special Officer is a creature of the statute. He cannot perform any function but for the power conferred upon him under the statute. He is

thus an authority created under a statute and is a ''State'' for the purpose of Part III of the Constitution of India.

On the basis of my conclusions as above, the only course that the Court should adopt is to issue a writ and quash the order and direct the

respondents to reinstate the petitioner and treat the petitioner as in continuous service with all consequential benefits. This I should do ignoring the

firman of the Full Bench judgment in W.P. No. 6191 of 1990 = Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others,

and without being inhibited by the observations in the judgment of the Full Bench in Tamilarasan''s case.

I have reached the above conclusion by the process of reasoning and following Unbinding pronouncements of the Supreme Court and the ratio

decidendi of a number of judgments of this Court and other courts. In this process, I have received valuable assistance from the members of the

Bar, particularly, from Messrs R. Gandhi, T.R. Mani, A.L. Somayaji, G. Venkataraman, K. Chandru and R. Singaravelan, who have assisted the

Court as amicus curiae. I have noticed how the petitioner was selected and appointed and how he was suddenly removed from service on a

ground which never existed and without affording to him a reasonable opportunity of being heard. This case has remained pending for more than

eight years. To say now that this petition is dismissed as not maintainable and to force thus the petitioner to approach the State Government for a

reference of the dispute to a Court or Tribunal, will be wholly unjust. (Tamil Nadu Cauvery Ltd. Sangam v. Union of India 1990 3 SCC 144.

Had the Full Bench in Tamilarasan''s case (supra) or even in W.P. No. 6191 of 1990 made any endeavour to give reasons why this Court

should ignore the binding authority of the Supreme Court and had the Full Bench pointed out in W.P. No. 6191 of 1990 as to where there has

been any mistake committed by the Division Bench in Natarajan''s case (supra) in holding that a writ will issue commanding the Special Officer

appointed by the State Government/Registrar of Co-operative Societies instead of commanding the Judges of this Court to obey the judgment in

Tamilarasan''s case, even if I had a different opinion, I would have followed the precedent as binding upon me as a Judge of this Court. Since the

two Full Bench judgments either independently or together just give conclusions, without there being any ratio and principle, they are not binding

precedents. I would prefer, as the Supreme Court has said, to relieve myself from injustice that is likely to occur in accepting the two judgments of

the Full Bench with respect to the powers of this Court to issue writs with respect to actions of the Special Officers appointed under the statute.

Injustice, however, shall occur when the writ will be refused. The position today is that under the interim orders of this Court, the petitioner is

continuing in service. If the disposal of the writ petition is further delayed, it will cause no serious injury to the petitioner although the delay will be

the court''s doing and not that of the petitioner. It is said in the Bible:

Teach me, and I will hold my tongue; and cause me to understand wherein I have erred."" (Job Chap. 6 24 Holy Bible placed by the CIDEONS)

and I proposed to ask this question:

Whether it will be proper if a true and genuine effort is made by this Court and to find out a proper answer to the question whether a writ will not

issue to a co-operative society; and if will issue when shall it issue, and if not when and why it shall not issue, and in case the society is superseded

and a special Officer is appointed to exercise the powers of the Board of the Society or the committee of the Society by the State Government and

or the Registrar of Co-operative Societies, a writ shall issue, then, when shall it issue, and if not, when and why it shall not issue?

This can be achieved by a decision of a larger Bench of this Court, which, while deciding the question, would lake into consideration the ambit and

power of this Court under Art. 226 of the Constitution of India, the law declared by the Supreme Court under Art. 141of the Constitution of India

and several other pronouncements of the High Courts including the judgments of this Court, Judgments of this Court shall include the judgments of

Mohan, J. (as he then was) reported in Ramanathan v. President, Perambalur Co-operative Milk Supply Society Ltd., Perambalur, Trichy District

W.P. No. 2811 of 1976 and Venkataswami, J. in S. Varadarajan v. The Special Officer, T.U.C.S. Ltd., Madras, and others 1985 Writ L.R. 251

two of the three judges constituting the Full Bench in Tamilarasan''s case and the judgment of Nainar Sundaram, J. in Mahadevan v. Special

Officer by Registrar, South Arcot Saravanabhava Consumers Co. op., Wholesale Stores Ltd., Cuddalore 1987 W.L.R. 120 and P. Sundaram &

6 others v. The Registrar of Co-operative Societies and Three others W.A. No. 519 of 1990-dated 28-11-1990 and Srinivasan, J. reported in

The Central Co-operative Bank Ltd. Vs. M. Parthasarathi, and C. Marianandam v. The Govt. of Tamil Nadu 1988 T.L.N.L. 350, two of the

three Judges constituting the Full Bench in W.P. No. 6191 of 1990 on the question particularly whether a writ will issue against the Special Officer

of a cooperative society. Keeping this only in mind, I refer this case to a larger Bench with a request to the Hon''ble the Chief Justice to constitute a

larger Bench, which can go into the correctness or otherwise of the pronouncements of the Full Bench in R. Thamilarasan, J. Rajesekaran, C.

Karamani, D. Ramanujam and P. Kannan Vs. The Director of Handlooms and Textiles, Madras and Others, as well as in W.P. No. 6191 of 1990

Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, , Until that is done, Judges of this Court shall be free, as I have felt

free, of the shackles of the firman of the Full Bench judgment in W.P. No. 6191 of 1990 and the precedent in Tamilarasan''s case.