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Judgment
K. Venkataswami, J.—These two writ petitions are preferred by the same petitioner who was an employee of the 3rd respondent Co-
operative Stores. The first writ petition is directed against an order of the 2nd respondent, namely, Registrar of Co-operative Societies dismissing
the petitioner''s revision application against the order of suspension pending enquiry into the charges framed against him. The second writ petition is
directed against the final order of dismissal from service.
The petitioner appeared in person and argued the matter. He fairly stated that in view of the final order of dismissal, the writ petition challenging
the order of suspension has become infructuous without going into the merits. No costs.''
Regarding writ petition No. 13070 of 1986, Mr. Ibrahim Kalifulla, learned Counsel appearing for the 3rd respondent raised a preliminary
objection as to the maintainability of the writ petition. According to the learned Counsel, the relief prayed for is only against the 3rd respondent and
the respondents 1 and 2 are impleaded as parties just to make it appear that some relief is also asked for against them.
As I am inclined to accept the preliminary objection raised by the learned Counsel for the 3rd respondent, I do not consider that I should set out
the facts in detail or discuss the points raised by the petitioner in challenging the order of dismissal passed by the 3rd respondent.
According to the learned Counsel for the 3rd respondent, the relationship between the Co-operative Society and its employees is that of a
master and servant and that therefore even if there is a wrongful dismissal of the employee, the Court cannot interfere in exercise of the power
under Article 226 of the Constitution of India. He further submitted that it is open to the petitioner to raise an industrial dispute or to avail himself of
the alternative remedy available under the provisions of the Tamil Nadu Cooperative Societies Act. In support of his contention, he relied on two
unreported Division Bench Judgments of this Court in K. Kanniappan v. The Sriperuabudur Taluk Co-operative Marketing Society Ltd. W.P. No.
677 of 1977, Or. dated 27th September, 1979). He also placed before me the judgment of Nainar Sundaram, J. who has followed the above
referred Division Bench judgments in the case K.H. Baskaran and Ors. v. State Bank of India Staff Co-operative Society Ltd. rep. by its
Secretary, Madras and Ors. reported in 1984 WL.R. 96. The learned Counsel also relied on a judgment of the Supreme Court in S.S. Dhanoa
Vs. Municipal Corporation, Delhi and Others, . This judgment of the Supreme Court has also been noticed and relied on by Nainar Sundaram, J.
in his judgment referred to above.
The principle laid down in the Division Bench Judgments referred to above is to above is to the following effect:
Notwithstanding the wide amplitude of Article 226 when compared with Article 32 of the Constitution, a writ can issue only against the state or
authority contemplated under Article 12 and not to a company registered under the Companies Act or the Co-operative Societies Act. The
relationship between the co-operative society and its employees is that of a master and servant and that, therefore, even if there is a wrongful
dismissal of the employee the Court cannot issue a writ of mandamus directing reinstatement or a declaration that the termination of service is
wrongful....
In the judgment of the Supreme Court referred to above, it is held as follows:
There is a distinction between a corporation established by or under an Act and a body incorporated under an Act. The distinction was brought
out by this Court in Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees
Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, It is observed:
A company incorporated under the Companies Act is riot created by the Companies Act but comes into existence in accordance with the
provisions of the Act. There is thus a well marked distinction between a body which, after coming into existence, is governed in accordance with
the provisions of a statute. In Sabhajit Tewary Vs. Union of India (UOI) and Others, , the question arose whether the Council of Scientific and
Industrial Research which was a society registered under the Societies Registration Act, was a statutory body. It was urged that because the
Council of Scientific and Industrial Research had government nominee as the president of the body and derived guidance and financial aid from the
Government, it was a statutory body. Repelling the contention, the Court observed: (at P. 1330 of AIR):
The Society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance
Corporation. It is a society incorporated in accoredance with the provisions of the Societies Registration Act. The fact that the Prime Minister is
the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not
establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and
industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or
departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the
researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible
manner.
Whatever has been said with regard to the Council of Scientific and Industrial Research which was a Society registered under the Societies
Registration Act, equally applies to the Co-operative Stores 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.
Nainar Sundaram, J., in the judgment cited above, after noticing all these cases, has ruled as follows:
It is true that a writ under Article 226 may lie against a body, though not a ''State'' within Article 12. The words ''any person'' in Article 226 would
only mean any person to whom, according to the well established principles, a writ could issue. This Court cannot grant reliefs against purely
private bodies or individuals under Article 226 to enforce private rights such as the one arising from a contract of employment. A writ will issue
under Article 226 not only against the State and its officials who seek to enforce the law made by the State, but also against private bodies or
individuals who claim against the petitioner under that law. In such a contingency, the petitioners would be entitled to relief not only against the
State and its officials, but also against private bodies or individuals, for, otherwise the reliefs against the State and the officials would be infructuous.
But, here in the present case, the grievances expressed by the petitioners are with reference to non-employment and orders of dismissal, based on
the relationship of a master and a servant. As on date, we have two pronouncements of a Bench of this Court, which are squarely applicable to the
facts of the present cases and I am bound by them and the attempt made by the learned Counsel for the petitioners to get out of the ratio of the
Bench could not fructify. Accordingly, these writ petitions are dismissed I make no order as to costs.
As against this, a judgment of mine reported in Varadarajan, S. v. The Special Officer T.U.C.S. Ltd. (1985) 98 L.W. 428, has been brought to
my notice wherein I have held that writ against Special Officer, T.U.C.S. Limited, Madras is maintainable. In that judgment, I have specifically
stated that T.U.C.S. STANDS on a different footing as it is controlled by Government and 85% of the shares are held by the Government.
Further, I have also pointed out that a Division Bench of this Court in Writ Appeal No. 74 of 1970 (judgment dated 13.11.1973), has rejected a
similar preliminary objection as to the maintainability of the writ petition against T.U.C.S. In the light of the later pronouncements and particularly in
the light of the view expressed by the Supreme Court noted above, I do not think that my decision reported in S. Varadarajan''s case (1985) 98
L.W. 428 can be pressed into service to the facts of this case.
In the light of the consistent rulings of this Court, I uphold the preliminary objection raised by the learned Counsel for the 3rd respondent.
Accordingly, the writ petition is dismissed as not maintainable. It is however made clear that it is open to the petitioner to seek other alternative
remedy. There will be no order as to costs.