(The Judgment of the Court was delivered by S.J.Mukhopadhaya,J) The Writ Appeal has been preferred by Mr.K.Mathialagan, who was the third respondent in the Writ Petition, against the order dated 27.6.2002 passed by the learned single Judge in Writ Petition No.16043 of 1995.
2. In the said Writ Petition, the first respondent herein, namely Tamil Nadu Co-operative Milk Producers Federation Limited Staff Association (hereinafter referred to as 'the Staff Association'), challenged the order dated 7.11.1995 issued by the third respondent herein, namely the Tamil Nadu Co-operative Milk Producers' Federation Limited, whereby and whereunder, the appellant was appointed as Assistant in the third respondent-Co-operative Milk Producers' Federation Limited.
3. The learned single Judge held that the appointment was not legal, as no direction was given by the State Government to absorb certain persons working in the Tamil Nadu Magnesium and Marine Chemicals Limited, and due to its closure, at the time, the appellant was so appointed.
4. As the case could be disposed of on a short point, it is not necessary to discuss all the facts except the relevant one, as mentioned hereunder.
5. The appellant-Mathialagan, who was working as Assistant in the Tamil Nadu Magnesium and Marine Chemicals Limited, was appointed by proceedings in Reference No.12787/Pers/Ess.5/95, dated 12.10.1995, as Assistant in the third respondent-Co-operative Milk Producers' Federation Limited, on permanent absorption basis in the scale of pay of Rs.1,200-2,040/- with other usual allowances. The said Tamil Nadu Magnesium and Marine Chemicals Limited, was earlier shut down on 31.1.1993 and therefore, the appellant was appointed in the service as Assistant.
6. Challenging the said proceedings dated 7.11.1995, the first respondent-Staff Association filed Writ Petition No.16043 of 1995 before this Court, on the ground that the said appointment was illegal. The third respondent-Co-operative Milk Producers' Federation Limited, while opposing the said Writ Petition, took a specific plea that the Writ Petition was not maintainable against the third respondent- Co-operative Milk Producers' Federation Limited, which is a Co-operative Society under the Tamil Nadu Co-operative Societies Act. Similar stand was taken on behalf of the State of Tamil Nadu.
7. It was also brought to the notice of the learned single Judge that, in the meantime, the State Government issued G.O.Ms.No.59, dated 20.2.1997 from the Industries Department, wherein, the State Government, having noticed that the Tamil Nadu Magnesium and Marine Chemicals Limited, a Government of Tamil Nadu undertaking, was shut down on 31.1.1993 due to technology problem and uneconomical operating conditions, a final decision of revival/rehabilitation of the Tamil Nadu Magnesium and Marine Chemicals Limited was likely to take considerable time and to avoid unproductivity drain on the exchequer of the State Government, it was decided to absorb the workers in one or other undertaking of the State Government.
8. While the Tamil Nadu Co-operative Milk Producers' Federation Limited and the State Government have appeared through counsel and took similar plea that the Writ Petition was not maintainable against the Co-operative Society (the third respondent in the Writ Appeal) in question, in spite of notice in the present Writ Appeal, the first respondent-Staff Association has not appeared.
9. Learned counsel appearing on behalf of the appellant-K.Mathialagan, while also took the same plea that the Writ Petition was not maintainable against the Co-operative Society, namely, the third respondent-Tamil Nadu Co-operative Milk Producers' Federation Limited, also took a plea that the appellant was otherwise entitled for absorption in one or other public sector undertaking of the Government of Tamil Nadu, pursuant to G.O.Ms.No.59, dated 20.2.1997 issued from the Industries Department.
10. We have heard learned counsel appearing for the parties and perused the records.
11. The question relating to the maintainability of the Writ Petition against a Co-operative Society, fell for consideration before different Courts from time to time. In the case of "A.Umarani vs. Registrar, Coop. Societies", reported in 2004 (7) SCC 112, while the Supreme Court did not express its opinion as to whether a Co-operative Society is a "State" within the meaning of
Article 12 of the Constitution of India, observed as follows:
"60. Although we do not intend to express any opinion as to whether the cooperative society is a "State" within the meaning of
Article 12 of the Constitution of India but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the cooperative society is violative of mandatory statutory provisions. In this case except the nodal centre functions and supervision of the cooperative society, the State has no administrative control over its day-to-day affairs. The State has not created any post nor could it do so on its own. The State has not borne any part of the financial burden. It was, therefore, impermissible for the State to direct regularisation of the services of the employees of the cooperative societies. Such an order cannot be upheld also on the ground that the employees allegedly served the cooperative societies for a long time."
12. The question of maintainability of a Writ Petition against a Co-operative Society, subsequently fell for consideration before a Larger Bench consisting of Five Honourable Judges of this Court, in the case of "Marappan,K. vs. The Deputy Registrar of Co-operative Societies, Namakkal", reported in 2006 (4) CTC 689, and in the said case, the Court held as follows:
"21. From the above discussion, the following propositions emerge:
(i) If a particular co-operative society can be characterised as a 'State' within the meaning of
Article 12 of 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
Article 226 of the Constitution. In such a situation, an order passed by a society in violation of the bye-laws can be corrected by way of Writ Petition;
(ii) Applying the tests in Ajay Hasia it is held that a co-operative society carrying on banking business cannot be termed as an instrumentality of the State within the meaning of
Article 12 of the Constitution;
(iii) Even if a society cannot be characterised as a 'State' within the meaning of
Article 12 of the Constitution, a Writ would lie against it to enforce a statutory public duty cast upon 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
Article 226 of the Constitution and what is material is the nature of the statutory duty placed upon it and the Court will enforce such statutory public duty. Although it is not easy to define what a public function or public duty is, it can reasonably said that such functions are similar to or closely related to those performable by the State in its sovereign capacity.
(iv) A society, which is not a 'State' would not normally be amenable to the writ jurisdiction under
Article 226 of the Constitution, but in certain circumstances, a writ may issue to such private bodies or persons as there may be statutory provisions which need to be complied with by all concerned including societies. If they violate such statutory provisions a writ would be issued for compliance of those provisions.
(v) Where a Special Officer is appointed in respect of a co-operative society which cannot be characterised as a 'State' a writ would lie when the case falls under Clauses (iii) and (iv) above.
(vi) The bye-laws made by a co-operative society registered under the Tamil Nadu Co-operative Societies Act, 1983 do not have the force of law. Hence, where a society cannot be characterised as a 'State', the service conditions of its employees governed by its bye-laws cannot be enforced through a Writ Petition.
(vii) In the absence of special circumstances, the Court will not ordinarily exercise power under
Article 226 of the Constitution of India when the Act provides for an alternative remedy.
(viii) The decision in M.Thanikkachalam v. Madhuranthagam Agricultural Co-operative Society, 2000 (4) CTC 556, is no longer good law, in view of the decision of the Seven-Judge Bench of the Supreme Court in Pradeep Kumar Biswas case and the other decisions referred to here before."
13. So far as the present case is concerned, from the Bye-Laws of the third respondent-Tamil Nadu Co-operative Milk Producers' Federation Limited, it appears that it is a registered Co-operative Federation under Sub-Section (1) of Section 9 of the Tamil Nadu Co-operative Societies Act, 1961, on the basis of limited liability, vide registration dated 15.12.1980. As per the Bye-Laws, there is a Board of Directors for the third respondent-Tamil Nadu Co-operative Milk Producers' Federation Limited and a Personnel Committee is constituted under Bye-Law No.25.8. The Chairman and the Managing Director of the Tamil Nadu Co-operative Milk Producers' Federation Limited, are independent authorities under the Bye-Laws, clothed with the power as per the Bye-Laws. Under Bye-Law 4.1, the 'funds' may be raised by (i)shares, (ii)debentures, (iii)deposits, (iv)loans, (v)grants, aids and subsidies, (vi)donations and (vii)entrance fees. The authorised share capital of the Federation is Rs.10 crores, divided into 1,00,000 shares of Rs.1,000/- each. As per Bye-Law No.4.3, the funds to be raised under sub-clauses (ii), (iii) and (iv) of Bye-Law 4.1 relating to the raising of funds, quoted above, the funds should not exceed 12 times of the total of paid up share capital and reserve fund less accumulated losses. The membership of the Federation includes three types, namely, ordinary, nominal and State Government, but there appears to be no direct control of the State Government over the Federation and thereby, there is nothing on record to suggest that the Federation comes within the meaning of the 'State' under
Article 12 of the Constitution of India or is a 'wing' of the "State".
14. In the present case, a specific plea was raised by the State Government and the Co-operative Milk Producers' Federation Limited that the Federation is not a "State" within the meaning of
Article 12 of the Constitution of India and that the Writ Petition was not maintainable. Though such a specific plea was taken, but the learned single Judge, without discussing the said issue, passed the impugned order by merely noticing the statement made by the first respondent-Staff Association that the third respondent-Co-operative Milk Producers' Federation Limited is a limb of the Government of Tamil Nadu. We find that no document or decision was brought to the notice of the learned single Judge by the first respondent-Staff Association (writ petitioner) to show that the Tamil Nadu Co-operative Milk Producers' Federation Limited is a limb of the State Government and in the absence of such evidence, such a plea cannot be accepted.
15. It is not in dispute that the appellant was in the services of the Tamil Nadu Magnesium and Marine Chemicals Limited, working as Assistant. Thus, he was qualified for appointment to the post of Assistant. It is also not in dispute that as per G.O.Ms.No.59, dated 20.2.1997 issued from Industries Department of the Government of Tamil Nadu, the appellant is entitled for absorption in any of the State Government's public sector undertakings, as the other undertaking, namely, the Tamil Nadu Magnesium and Marine Chemicals Limited, where the appellant was working, was shut down on 31.1.1993 due to technology problem and uneconomical operating conditions. Such a stand having been taken by the State Government in the year 1997, we are of the view that in the year 2002, when the impugned order was passed, the learned single Judge ought not to have interfered with the order of appointment of the appellant.
16. This apart, if an experienced hand of one of the State Government's undertaking is appointed in the third respondent-Co-operative Milk Producers' Federation Limited, in the absence of any illegality brought on record, we are of the opinion that no interfere is called for.
17. For the reasons aforesaid, while we hold that the Writ Petition against the third respondent-Tamil Nadu Co-operative Milk Producers' Federation Limited, in respect of the appointment of the appellant, is maintainable, we further hold that there was no ground made out to interfere with the appointment of the appellant. We accordingly set aside the impugned order dated 27.6.2002 passed by the learned single Judge in Writ Petition No.16043 of 1995 and dismiss the said Writ Petition and allow this Writ Appeal. No costs. W.A.M.P. is closed.
cs To
1. The Goverment of Tamilnadu, Rep. by its Secretary, Animal Husbandry Department, Fort St.George, Chennai-600 009.
2. The Tamilnadu Cooperative Milk Producers Federation Limited Rep. by its Managing Director, Aavin Illam, Madhavaram Milk Colony, Madras 600 051