ORDER R.H. Zaidi, J.
1. Petitioner, by means of the present petition under Article 226 of the Constitution of India, who was an employee of Mechanical Department Co-operative Bank Ltd., North Eastern Railway, Gorakhpur (hereinafter referred to as the Bank), challenges the validity of the order dated March 24, 1994, passed by the Board of Directors of the Bank and communicated to him vide letter dated March 25, 1994 of the acting Secretary, Mechanical Department of the Bank. He also prays for a writ in the nature of mandamus restraining the respondents from interfering in his functioning as Senior Clerk and to pay his salary regularly.
2. The relevant facts of the case, as stated in the writ petition, are that the Bank was a Co-operative Society registered under the U.P. Co-operative Societies Act, 1965. The Area of operation of the society was Northern Eastern Railway in Uttar pradesh and Bihar. It was thus a Multistate Co-operative Society within the meaning of term used in Multistate Co-operative Societies Act, 1984. The Society has got its registered bye-laws, which provide for the Constitution of the Board of Directors. The management of the Society is vested in Board of Directors. Under the bye-laws the Board of Directors happens to be appointing authority of the employees of the Society, Petitioner claims that the Bank comes within the definition of the term "other authority" and "authority" used under Article 12 and 226 of the Constitution of India. The petitioner claims that the Reserve Bank of India and Central Government have full control over the management of the Bank and the provisions of the Banking Regulations Act, 1949 are also applicable to it. It has further been stated that from time to time Reserve Bank of India and Central Government have been issuing directions and orders regarding day to day functioning of the Bank. It was on August 13, 1989 petitioner was appointed as Adeshpal (class IV employee). Thereafter vide order dated October 10, 1989 he was appointed as Junior Clerk and was confirmed on the said post on August 16, 1990. On January 15, 1994 he was posted as Senior Clerk, which was equivalent to the post of Cashier.
3. In the year 1993 Board of Directors of the Bank was elected but subsequently, a dispute with respect to the management of the Bank arose, which resulted in multiple litigations and appointment of Administrator by the Registrar to look after the administration of the Bank. There were two rival groups, each of them was claiming right to manage the affairs of the Bank. One Sri Udai Bhan Singh, acting Secretary has been siding with the Board of Directors, has been harassing those employees, who recognised the Administrator appointed by the Registrar. Petitioner since was recognising the Administrator was not being permitted even to sign the Attendance Register by acting secretary. The proceedings under S. 145/146 Cr. P.C. were also initiated. Ultimately, the said proceedings were dropped; but the petitioner was not permitted to sign the Attendance register to perform his duties. Shri U.B. Singh also resorted to physical right and assaulted the petitioner, whereupon a FIR was lodged by the petitioner. A cross FIR was also lodged by Sri U. B. Singh against the petitioner with false and concocted allegations. On March 24, 1994 without following the procedure prescribed under law and without affording the opportunity of hearing to the petitioner, he was dismissed from service, wholly arbitrarily. The order dated March 24, 1994 has been set out in Annexure VIII to the writ petition, which is alleged to have been passed by the Board of Directors.
4. petitioner stated that the order of dismissal, referred to above, was passed without holding any enquiry without levelling any charge and without affording an opportunity of hearing to the petitioner in any manner, wholly arbitrarily and illegally on March 24, 1994. The petitioner challenges the validity of the said order in the instant petition.
5. In reply to the facts stated in the writ petition, counter-affidavit has been filed by Sri Ram Saran Tiwari Respondent No. 2, wherein the facts stated in the writ petition have been controverted. It has further been stated that the petitioner was not appointed in accordance with law, the order of appointment of the Administrator having been withdrawn. The Administrator had, therefore, no right to appoint the petitioner as cashier. A suit with respect to the management has been filed and the same has been decided by the Civil Court and the writ petition filed against the said Judgment & Order having been dismissed. Petitioner, therefore, cannot be said to be legally and lawfully appointed and promoted to the post of Cashier, or Senior Clerk. The writ petition as framed and filed was legally not maintainable in as much as the Society does not come within the definition of the term "State" or "other authority" as used under Article 12 of the Constitution of India. The criminal cases are still pending investigation and services of the petitioner were terminated in accordance with law by the Board of Directors. It was also pleaded that the order of dismissal was appealable before the Central Registrar Co-operative Society and the writ petition filed by the petitioner was thus, legally not maintainable.
6. I have heard learned counsel for the parties.
7. Learned counsel for the petitioner has urged that the order of termination having been passed without following the procedure prescribed under law. Neither any charge-sheet was framed nor furnished to the petitioner, nor any enquiry was conducted, nor he was afforded an opportunity of being heard or to defend himself. The order dated March 24/25, 1994 was passed against him wholly arbitrarily and contrary to the provisions of the Rules, which cast stigma on the character and conduct of the petitioner. The said order was, therefore, liable to be quashed. The impugned order darted March 24/25, 1994 is quoted below :-
^^nh eSdsfudy fMikZesaUV izkbejh dks & vkijsfVOg c¡d fy- iwoksZrj jsYos] xksj[kiwj A la[;k es- fM- dks- [email protected] [email protected] 93&94 xksj[kiwj nhukad 25&3&94 lsok esa] Jh /ku';ke flag v-fy-
fo"k; & lsok ls cj[kkaLrh lUnHkZ %& vkids }kjk fnukad 24&3&94 dks fd, vuq'kklu gh ,oa vijkf/kd fØ;k dykiksa ij fcpkj djus ds i'pkr lapkyd eaMy ds fu.kZ;kuqlkj vkidks rRdky izHkko ls cSaad lsok ls cj[kkLr fd;k tkrk gS A g- vifBr 25&3&1994 dk- lfpo- lhy vifBr
8. From the aforesaid order, it is apparent that the said order casts stigma on the conduct of the petitioner and is based on the allegation of indiscipline and criminal activity against the petitioner and was passed without following the procedure prescribed under Rules. No charge sheet was ever framed, nor the same was furnished to the petitioner, nor petitioner was afforded an opportunity of being heard or to defend himself in any form. The said order was thus passed in violation of the principles of natural justice as well as the procedure prescribed under the Rules for taking disciplinary action against the employees of the Bank. The order is thus, manifestly illegal and arbitrary and deserves to be quashed.
9. However, learned counsel for the contesting respondent has urged that the writ petition itself is not maintainable and against the order impugned in the writ petition efficacious alternative remedy under (he Act before the appellate and revisional authorities are available. Therefore, I have to examine the question as to whether the Bank comes within the definition of state or its instrumentality or other authority or authority within the meaning of the terms used under Article 12 and Article 226 of the Constitution of India.
10. Articles 12 and 226(1) of the Constitution of India reads as under: -
"12:- In this part, unless the context otherwise requires, "the state" includes the Government and Parliament of India and the Government and the Legislature of each state and all local and other authorities within the territory of India and under the control of the Government of India."
"226 (1) 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, order 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.
11. In Ale Ahmad Abdi v. District Inspector of Schools, 1976 All WC 731 the Full Bench of this Court held an under :-
"Committee of management of an Intermediate College is not a statuary boss, nevertheless, if such petition filed against it is maintainable, if such petition is for enforcement, performance of any legal obligation of duties imposed on such Committee by Statute."
Section 52 of the Act provides as under -
"The Registration of multistate Co-operative Societies shall render it a body corporate by the name under which it is registered having perpetual succession and a common seal and with a power to hold property entered into contract institute and defend suits and other legal proceedings and to do all things necessary for the purposes of which it is constituted."
12. In Ajay Hasia v. Khalid Mujib Sehravardi and Ors. (1981-I-LLJ-103) it has been held by the Supreme Court that a Corporation is an instrumentality or agency of the Government, it must be held to be an 'authority' within the meaning of Article 12 and hence subject to the same basic objection to obey the Fundamental Rights as the Government."
It has further been held that (at PP. 114-115): "It is immaterial for determining whether a Corporation is an authority whether the Corporation is created by a Statute or under a Statute. The test whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence."
13. In the said decision Hon'ble Supreme Court has laid down certain tests on the basis of decision in International Airport Authority's case (1979 - II - LLJ - 217), the said paragraph is quoted below (at pp 227-228):
"The tests for determining as to when a Corporation can be said to be an instrumentality or agency of Government may not be culled out from judgment in the International Airport Authority's case (supra). These tests are not conclusive indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities" it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority's case as follows:
1. One thing is clear that if the entire share capital of the Corporation is held by Government it would go a long way towards indicating that the Corporation is an instrument or agency of Government."
2. "Where the financial assistance of the State is so much as to need almost entire expenditure of the Corporation, it would afford some indication of the character."
3. "It may also be relevant factor... whether the Corporation enjoys monopoly status which is the State conferred or State protected."
4. "Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality."
5. "If the functions of the Corporation of public importance and closely related to Government functions it would be relevant factor in classifying the Corporation 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." If on a Consideration of these relevant factors it is found that the Corporation is an instrumentality or agency of Government, it would, as pointed out in the International Airport Authority's case, be an 'authority and, therefore, 'State within the meaning of the expression in Article 12."
14. The term "other authority" and "authority" as used under Article 12 and 226 of the Constitution were considered by the Supreme Court in Sri Anandi Mukta Sadguru Shree Muktjee VSMJ Trust v. V.R. Rudani, (1989 - II -LLJ - 324) has been held that at pp 329-330:
"Under Article 226, writs can be issued to "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purposes." 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 purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, 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 imposed. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to need the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226."
15. Now in the present case the bank is governed by the Banking Regulations Act. 1949. The Central Government and the Reserve Bank of India have got deep and pervasive control over the Bank. The Reserve Bank of India has got full control over the management of the bank. As it is evident from Section 36-A of the Banking Regulations Act it has also got control over day to day business of the bank as well as over the management of the bank. The duties and functions discharged by the banks are apparently of public nature.
16. Under the facts and circumstances, as stated above, the services of the petitioner were terminated and he was dismissed from service wholly arbitrarily, without following the procedure prescribed for the same on the basis of the charges mentioned in the order of dismissal. The order of dismissal dated March 24, 1994 clearly cast stigma on the conduct of the petitioner and amounts to an order of punishment, such an order could not be passed without following the procedure prescribed under the Rules and principles of natural justice. In the event, there was material on record in support of the charges levelled against the petitioner it was obligatory upon the respondent to frame chargesheet, serve the same upon the petitioner to afford him an opportunity to explain the same and to produce evidence which was on the record against him and thereafter, to take decision as provided under the Rules. The Bank admittedly, has not afforded an opportunity of being heard and to defend to the petitioner. The impugned, order thus, has been passed in violation of the Rules and Principles of natural justice, as stated above, and is liable to be quashed. Respondents are also liable to be directed to reinstate the petitioner on the post he was holding on the date he was dismissed from service and to give the benefits of back wages and other consequential benefits in the matter of service to which petitioner was legally entitled.
17. The writ petition succeeds and is allowed. The impugned order dated March 24, 1994 is quashed. The respondents are directed to reinstate the petitioner on the post he was holding on the date he was dismissed from service. He will also be entitled for back wages and other consequential benefits to which he is legally entitled. No order as to costs.