K M MUNIVENKATAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) this petition assails an Order of termination from service dated 23-7-1994 passed against the present petitioner who was at the relevant time an employee of the 3rd respondent-society (hereinaiter referred to as 'hopcoms')- the respondents allege that it was necessary to place the petitioner under suspension which they did on 21-5-1993 on the ground that he had committed certain acts of misconduct. The allegation against the petitioner as far as this case is concerned relates to incidents that took place in the month of may 1993 and it is alleged that on 17-5-1993, the petitioner who was working as manager of the mysore branch informed the godown keeper that the managing director had telephoned him to purchase mangoes from one m.r. gopal and pay rs, 80,000/- as advance. The petitioner is alleged to have induced the godown keeper to prepare a purchase bill without receiving the actual goods, which the godown keeper did not agree to do. It is further alleged that on similar representations he had induced the godown assistant to prepare a purchase bill No. 1088 showing the supply of mangoes at a total cost of Rs. 80,000/- without mentioning the rate of the mangoes. The allegation was that this stock of mangoes had not been physically received at the godown. It is alleged that at his insistance, the godown assistant made certain entries in the stock register indicating as though the stock had been received whereas in fact the consignment of mangoes had not been received. The further allegation is that on the same date the petitioner instructed the cashier to prepare a cheque for Rs. 80,000/- in favour of m.r. gopal in respect of this consignment of mangoes, though the goods had not been received by hopcoms and it is alleged that the petitioner got the cheque issued on the representation that he was acting on the telephonic instructions from the managing director, hopcoms relies on the fact that no gate pass had been made out evidencing the receipt of the consignment and it is alleged that even when the godown assistant and the cashier asked for the same that the petitioner stated that it could be subsequently prepared and attached to the bill. According to hopcoms, on 21-5-1993 the petitioner attempted to have got the godown keeper and one hanumanthaiah who is a staff member to prepare supply bills in respect of the non-existant consignment of mangoes as though the same were being issued from the godown. The two persons refused to do this.

(2.) the explanation put forward by the petitioner as far as this head of charges are concerned, requires to be set out by me because it is of some consequence. According to him, one of his job functions was that he was required to purchase large consignments of mangoes for the hopcoms from the market and he contends that the purchase of the consignments of mangoes was done by him at the request of the hopcoms from the said gopal who was one of the agriculturists who normally supplied mangoes. According to the petitioner after he had placed the Order with gopal and the consignment was virtually at the premises of the hopcoms that the transaction in question had been informed to the head office at bangalore by one of the staff members who was asked to do the necessary documentation and the managing director who was ill-disposed towards the petitioner informed him on the telephone that the hopcoms does not want that consignment of fruit. The petitioner states that it was a huge quantity of mangoes, that the consignment had physically reached the premises of the hopcoms and that there was no means of revoking the Order at this stage which was why he instructed the cashier to make out the cheque for Rs. 80,000/- against the payment. According to him since the head of the hopcoms had very clearly said that they do not want the mangoes, there was no option except to have them disposed of straightaway and he therefore contacted another customer by the name of ashraf and that person agreed to take the whole of the consignment which he in fact did. The petitioner states that the buyer has paid for the entire consignment of mangoes which were taken by him and that the amount has been received by the hopcoms and, strangely enough that the amount received from ashraf is almost Rs. 20,000/- more than the amount paid by the hopcoms for the consignment. He therefore submits that there is no irregularity of any type committed by him and that on the contrary, despite the fact that he was required to take hasty corrective action that the hopcoms has in fact benefited insofar as they have made a profit of Rs. 20,000/- on the transaction. The petitioner's whole case is that there has been some personal animosity between him and some of the officials in the hopcoms and that there has been a background of various disputes and litigations right from the year 1973 onwards and it is his contention that the person who was at that time the managing director of the hopcoms was ill-disposed towards the petitioner and was virtually looking out for opportunities to harass him and it was for this reason that he issued instructions to cancel the consignment, hoping that the petitioner would be put into serious difficulties. The petitioner contends that he was able to save the situation, thanks to the corrective action taken by him but despite this, on the alleged ground of procedural irregularities the managing director personally directed that the petitioner should be straightaway suspended and that this suspension was followed by a disciplinary enquiry. In sum and substance the petitioner alleges personal and legal mala fides against the respondents. He contends that he was framed and it is his case therefore that he is absolutely innocent and that the action taken against him is totally unjustified.

(3.) the respondents have seriously questioned the maintainability of this petition and the learned counsel who represents them has submitted that the law is now well settled that a writ would not lie against a co-operative society. They contend that on this ground alone the petitioner is liable to be non-suited and they further pointed out that in respect of an earlier service dispute, wherein disciplinary action was taken against the present petitioner that he approached the registrar and that in keeping with what had happened in that case, the petitioner is liable to be directed, if he so desires, to approach the co-operative court. In this regard, apart from several other decisions, it is pointed out to me, that my brother rajendra babu, j., has recently in a more or less similar situation taken the view that where a clear alternate remedy is provided for, that the writ jurisdiction is barred. As far as this head is concerned, the two learned advocates have argued the matter at considerable length and the respondents' learned counsel has drawn my attention to a series of decisions both of the Supreme Court and of this court in support of his contention that this petition is not maintainable. Apart from the decision of rajendra babu, j., in W.P. No. 4878 of 1995, my attention was drawn to the following decisions: in the case of Secretary, Karnataka Industrial Co-Operative Bank Ltd. V. State of Karnataka, wherein this court had occasion to enunciate the various tests that would be applicable in a situation of this type, the most important of them being the structure of the society, the fact that it has no public functions, that it has only a few government nominees, that it is a trading society like all other societies and that its profits are generated out of its business. Reliance was also placed on in the case of M.N.Siddeswaraiah v. Managing Director, Bangalore District Co-Operative Central Bank Ltd., Bangalore, wherein this court had taken the view that a co-operative bank cannot come within the definition of "state" as contemplated by Article 12 of the constitution. Reliance was also placed on the decision in the case of M.C.Nagappa v. Karnataka Film Industry Development Corporation and another, wherein this court clarified that merely because the managing committee or board consisted of certain government nominees, that this was not the only test for the purpose of testing the status of a society. In another decision in the case of Khoday Brewing Distilling Industries Pvt. Ltd. V. State Of Karnataka and others, this court had occasion to examine a different situation where the government was a minority or a nominal shareholder and still held that the body did not qualify for being categorised as a "state". Learned counsel also relied on a decision of this court in the case of Gurupadappa v. Deputy Registrar of Co-Operative Societies and others and in particular para 5 of that judgment, wherein it has been very clearly laid down that a writ would not lie against a co-operative society. Lastly the learned counsel drew my attention to a decision of the Supreme Court in the case of Chander Mohan Khanna v. National Council of Educational Research and Rraining and others, wherein the Supreme Court had occasion while dealing with a matter concerning the national council of educational research and training, to observe that Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression "state". Effectively the Supreme Court laid down that it must be demonstrated that a deep and pervasive control over the working and management must be exercised by the state before the body could be categorised as coming within the ambit of Article 12 of the constitution,