Pradumn Chaubey and Another vs Registrar Co-operative Societies,U.P.,Lucknow and Others

S. R. Singh, J.—Kisan Sewa Sahkari Samiti Ltd. Mahuawa Bazaratar Kasya Deoria is, it is stated, a primary Agricultural Credit Society. The petitioners claim themselves to have inducted into the service of the society in 1959 and 1976 as Clerk and Asstt, Clerk respectively. Staffing pattern was adumbrated by issuing certain guidelines on'' November 24, 1983 as encapsulated in the circular dated 24111983, for the society. Owing to shortfall in the loaning business from the fixed standard, the society detracted from its status in Kha category and on 27th September, 1986, the Distt. Asstt. Registrar Cooperative Societies U, P. Deoria issued fiat to the society to levy implementation or the staffing pattern as contained in the circular issued in 1983. It is alleged that to implementation of the said circular dated 2791986, the services of the petitioner were dispensed with effect from 131987 vide letters dated 1221987 and 103 1987 (Annexures 3 and 4 respectively). It was postulated therein that the petitioners were relieved of the duties by giving one month''s advance pay It is those orders dated 1221987 and 1031987 (Annexures 3 and 4 to the writ petition) that are sought to be quashed by means of a writ of certiorari. The circular dated 2791986 is also sought to be quashed with consequential prayer for a writ of mandamus commanding the respondents not to enforce this staffing pattern and not to give effect to the orders terminating the services of the petitioners. ,

I have heard Sri R. K. Pandey appearing for the petitioners and Sri R. N. Ojha appearing for the respondents. The learned Counsel appearing for the respondents raised a preliminary objection that the petition was not sustainable as against the cooperative societies. He canvassed that Sachiv of the society who has passed the impugned orders terminating the services of the petitioner was neither the instrumentality of the State nor ''Authority'' within the periphery of Article 12 of the Constitution and hence fail out of the ambit of writ jurisdiction. The learned counsel has placed reliance on a Full Bench decision of this Court in Radha Charan Sharma v. 17. P. Cooperative Federation, 1982 UPLBEC 59, wherein it was propounded that the U. P. Cooperative Federation Ltd. was neither State nor ''Authority'' within the meaning of Article 12 of the Constitution and that the reinstatement cannot be claimed against the private body even if orders passed by it are found to be tainted as wrongful, The learned counsel for the respondent contended that the word ''Authority'' employed in Article 226 carries a wider connotation than the term ''authority'' used in Article 12 of the Constitution and order to buttress his submissions, the learned counsel has taken aid of the pronouncement of the Apex Court in Sri Anadi Mukta Sadguru Sri Mukiaji, S. J. M. Smarak Trust v. V. R. Udani, AIR 1989 SC 1607 wherein analysis is as under ;

�The term �Authority� used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purport; of enforcement of fundamental rights under Article J2. Article 226 confers powers on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words �any other person or authority� used in Article 226 are, therefore, not to be confined only to statutory authority and instrumentality of the State. They may cover any other person or body performing public duty. The form of body concerned is not very much relevant. What is relevant is the nature of the duty on the body. The duty must be judged in the light of the positive obligations owned by the persons or authority to the affected party. So matter by what means the duty is imposed. If a positive obligation exists, mandamus cannot be denied.�

In paragraph 21 of the report, their Lordships have approved of the following exposition laid down by Prof D. Smith in Judicial Review of Administrative Act, 4th Edition, p. 540 :

�To be enforceable by mandamus a public duty does not necessarily have to be one imposed by the Statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.�

But as observed earlier in paragraph 14 of the report if the tights are purely of a private character, no mandamus can issue and if the management of the society is purely a private body with no public duty, mandamus will not like in that event also.

In the glitter of the above decision of the Apex Court, it is patent that a writ of mandamus under Article 226 of the Constitution of India may be issued in appropriate cases not only against the instrumentality of the State but also against, �any other person or authority.� The Fall Bench decision relied upon by the counsel appearing for the petitioner is therefore unavailing to him to prop up his case. The activities of the Society are under the supervision of the Distt, Asstt. Registrar, Cooperative Societies. Employment in societies cannot be characterised as purely of a private nature �devoid of any public character.� The decision taken by the Secretary of the Society comes under the Superintendence of the District Asstt. Registrar, Cooperative Societies and, therefore, it has superadded protection �of decision by the District Asstt. Registrar Cooperative Societies under Section 69 of the U. P. Cooperative Societies Act, 1965 which is enough to create a legal right duty relationship between the Staff and the society and when there is existence of this relationship, mandamus cannot be refused to the aggrieved party� (AIR 1989 SC 1607 para 14). However, it would be edifying to point out that the aforestated decision of the Apex Court is a benchmark authority on issuance of a writ of mandamus. So far as the writ of certiorari is concerned, it has been observed by the Supreme Court in Dwarika Nath v. Income Tax Officer, AIR 1966 SC 81 that it can be issued only to quash judicial or a quasi judicial act and not an administrative act. The postulates which ought to be satisfied before issuing a writ of certiorari according to the said decision are (i) the body of persons must have legal authority, (ii) there must be authority to determine the questions affecting the rights or subjects ; and (iii) the body of persons should have a duty to act judicially. It was laid down that a writ of certiorari can be issued to quash a quasijudicial act of an Administrative Tribunal or Authority and an act of Administrative Tribunal would not be any the less quasijudicial act if the aforesaid tests were satisfied. The same view has been echoed by the Apex Court in Sadhu Singh v. Delhi Administration, AIR 1966 SC 91. The following observations made therein may usefully be abstracted as under :

�A writ of certiorari lies whereever a body of persons having legal authority to determine the question affecting rights of subjects and having a duty to act judicially, acts in excess of their legal authority, it does not lie to remove or adjudicate upon the order which is of an administrative or ministerial nature.�

In the instant case, I do not propose to delve into the questions whether the impugned orders terminating the services of the petitioners are quasijudicial in nature and whether a writ of certiorari would be maintainable for, in my opinion, the ends of justice would be best attained if the writ is disposed of with the observations that the petitioners may approach the society and/or the District Asstt. Registrar, Cooperative Societies Deoria for enforcement of the order dated 2621990 (Annexure 1 to the affidavit attending the application dated 24101991) thereby Sachiv/Adhyaksha of the society was directed by the Distt. Asstt. Registrar, Cooperative Societies, Deoria to allow the petitioners to be retained in the service of the society in the event of their withdrawing the case. The Asstt. Development Officer Cooperative (Vikas Khand) Kasia Distt. Deoria is also attributed to have directed the Secretary to restitute the petitioners with immediate effect qua the order contained in Annexure 1 to the affidavit aforestated.

In the circumstances aforestated, I dispose of writ petition (sic).