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Judgment
K. Chandru
The petitioners are admittedly employees of IMPCOPS Limited at Chennai 41. They were placed under suspension. The 2nd respondent
Medical Practitioners'' Cooperative Society is governed by the provisions of Multi-State Cooperative Societies Act, 2002. The petitioners were
placed under suspension. In these Writ Petitions, they have challenged an order of the Secretary incharge dated 16.12.2011 signed on
17.12.2011, in which the petitioners were informed that the management pursuant to the suspension are proposing to appoint an enquiry officer. It
is also stated that the for the purpose of extending subsistence allowance, it is unnecessary to raise any dispute and if the petitioners signed the
register kept at the gate, they will be paid subsistence allowance as per law.
The contention of the petitioners was that subsequent to the said order, an enquiry officer has been appointed. The enquiry officer after listing
out the charges informed the petitioners that the enquiry will be conducted on the next adjourned date and in case the petitioners fail to participate
in the enquiry, the proceedings are likely to proceed in the absence of the petitioners. Challenging these two communications, the petitioners have
filed the present Writ Petitions. The prayer of the petitioners was that the proceedings cannot go on since the proceedings pending before the
Payment of Subsistence Allowance is to be completed and they also request for replacement of the enquiry officer.
It is not clear as to how such Writ Petitions are maintainable, especially when the 2nd respondent is the Cooperative Society and run by its own
Board of Directors. Such Writ Petitions are not maintainable in the light of the larger bench judgment of this Court in K. Marappan Vs. The
Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank,
In the present cases, even the impugned communications show that the Society was willing to pay subsistence allowance. However, the
petitioners are not inclined to accept the conditions imposed as they have already rightly moved the Subsistence Allowance Authorities. The
question of forestalling the enquiry on that ground will not arise. Ultimately, if they succeed before the subsistence allowance authorities, the Society
is bound to pay subsistence allowance. Even otherwise, the impugned order indicates that the society is inclined to pay subsistence allowance as
per the Rules.
Even subsequent to the Mariappan''s case, an attempt was raised to contend that non-payment of subsistence allowance would amount to
violation of Article 21 of the Constitution of India and therefore a Writ Petition will lie. The view taken by a learned Judge in Marappan''s case was
referred for determination by the Full Bench judgment of this Court in T.K. Ananda Sayanan vs. Joint Registrar, Cooperative Societies, Vellore
Region, Vellore and another reported in 2007 (5) MLJ 637. In paragraph 16 of the said judgment, the Full Bench observed as follows:
For every alleged or imagined invasion of his rights, an employee of a Cooperative Society cannot move the writ court on the ground that his
rights under Article 21 have been infringed. The effect of the Supreme Court cases cited in K. Marappan vs. Deputy Registrar of Cooperative
Societies, Namakkal case (supra) and the propositions set down in K.Marappan v. Deputy Registrar of Cooperative Societies, Namakkal case
(supra) cannot be set at naught merely by mentioning Article 21, even if the order is illegal.
Subsequent to the decision of the larger bench judgment in Marappan''s case, the Supreme Court had occasion to consider the maintainability of
a Writ Petition in respect of a Cooperative Society in more than one judgment.
The Supreme Court vide its judgment in Gurcharan Singh Vs. Registrar, Co-operative Societies, Himachal Pradesh and Others, , at page 566 in
paragraph 2 observed as follows:
Learned counsel for the appellant submitted with reference to a seven-Judge Bench judgment of this Court in Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology that the writ petition is maintainable. By the said judgment, the decision of the Constitution Bench in the case of
Sabhajit Tewary v. Union of India was overruled. The Constitution Bench judgment in the case of Ajay Hasia v. Khalid Mujib Sehravardi was
explained and multiple tests for determining whether a particular corporation or body can be held to be included within the definition of ""State
under Article 12 of the Constitution, were laid down. It was inter alia held as follows: (SCC p. 134, para 40)
The picture that ultimately emerges is that the tests formulated in Ajay Hasia case are not a rigid set of principles so that if a body falls within
any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether
in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the
Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article
On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
(emphasis supplied)
It appears that the basic factual aspects were not placed before the High Court to determine the question whether the respondent Society was
State"" within the meaning of Article 12 of the Constitution. In view of the aforesaid, we feel that it would be appropriate for the High Court to
examine the question regarding the maintainability in the background of what has been stated in Pradeep Kumar case1. The parties shall be
permitted to place materials in support of their respective stands in this regard. As the matter is pending since 1995 and involves the question of
legality or otherwise of termination of services of the appellant, it would be in the interest of the parties if the writ petition is disposed of as early as
practicable, preferably within four months from the date of receipt of our order.
Subsequently, the Supreme Court in M.D., Bhadra Shahakari S.K. Niyamita Vs. President, Chitradurga Mazdoor Sangh and Others, ,
considered the scope of maintainability of a Writ Petition and in paragraph 3, it was observed as follows:
Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellant submitted that the appellant being a cooperative sugar factory
registered under the Cooperative Societies Act with a view to earn profit for the members of its society is purely a nongovernmental organisation
and will not fall within the definition of ""State"" under Article 12 of the Constitution of India and, therefore, the writ petition filed by the respondent
Union was not maintainable. In support of his contention, the learned Senior Counsel placed strong reliance on the judgments in G.M., Kisan
Sahkari Chini Mills Ltd. v. Satrughan Nishad; Federal Bank Ltd. v. Sagar Thomas; Gayatri De v. Mousumi Coop. Housing Society Ltd.; Shrikant
v. Vasantrao and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology. We have perused the above judgments. In our opinion, the writ
petition filed by the respondent Union against the cooperative sugar factory is not maintainable. We, therefore answer the said issue of
maintainability of the writ petition in favour of the appellant management.
Thereafter, the Supreme Court in S.S. Rana Vs. Registrar, Co-operative Societies and Another, , considered the entire issue once again and in
paragraph 12, observed as follows:
Respondent 2, the Society does not answer any of the aforementioned tests. In the case of a non-statutory society, the control thereover
would mean that the same satisfies the tests laid down by this Court in Ajay Hasia v. Khalid Mujib Sehravardi. [See Zoroastrian Coop. Housing
Society Ltd. v. Distt. Registrar, Coop. Societies (Urban).]
It is well settled that general regulations under an Act, like the Companies Act or the Cooperative Societies Act, would not render the activities
of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper
functioning of the society and the State or statutory authorities would have nothing to do with its day-to-day functions.
Thereafter, the Supreme Court, while dealing with the employees of the Cooperative Society in approaching the High Court for appropriate
relief in respect of their service conditions, once again considered the issue of maintainability of the Writ Petition vide its judgment in State of
Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha, , it was observed as follows:
If the salaries are not paid, the remedy of the employees of CAMUL is to proceed against CAMUL, in accordance with law, by approaching
the forum under the appropriate labour legislation or the Cooperative Societies Act. But a trade union 9 representing the employees of a
cooperative society cannot, by filing a writ petition, require the Government to bear and pay the salaries of the employees of the cooperative
society, howsoever pervasive, the control of the State Government, over such society. Nor is any right created to demand the continuance of
financial assistance to a cooperative society, on the ground that such assistance has been extended by the Government, for several years.
Apart from these lines of decisions in respect of the 2nd respondent Cooperative Society, this Court in more than one occasions held that such
a Writ Petition is not maintainable.
In view of the above, all the Writ Petitions stand dismissed. No costs. All the connected Miscellaneous Petitions are closed.