SEETHARAMA RAJU M PURSHOTTAMA NAIDU SM PRABHAKARA REDDY Vs. CHITOOR DISTRICT CO OPERATIVE CENTRAL BANK LIMITED NELLORE CO OPERATIVE HOUSE BUILDING SOCIETY LIMITED

JUDGEMENT

(1.) The issue before the Full Bench is whether a writ petition lies against a co-operative society, and if it does, in what circumstances ? The context is the enforcement of bye-laws governing service condition of employees.

(2.) In P.S.Naidu v. Chittoor District Co-operative Central Bank [1977] 2 APLJ 282, a Division Bench of this court held that an order of punishment made by a society against its employees cannot be questioned by the latter by way of a writ petition. The Bench pointed out "as far as this court is concerned, it has uniformly taken the view that a writ petition does not led against a co-operative society especially when it relates to matters concerning the society and its employees. In C.V.Narasimha Naidu v. Chittoor District Co-operative Bank Ltd. [1971] 2 APLJ (SN) 16, "W.P. No. 3788 of 1970 dated 7/06/1971)" one of us (Kuppuswami J.) (sic) following the decision of a Division Bench of this (Madras) court in C. Lakshmiah v. Sri Perumbadur Taluk Co-operative Marketing Society Ltd., AIR 1962 Mad 169, held that an order under article 226 of the Constitution cannot be issued to quash the proceedings of a co-operative society....." The Bench noted that there appears to be a difference f opinion between the various High Court in the country on that question, and observed" we would, however, prefer to rest our decision on the ground that what the petitioner is seeking to ensure is a purely contractual right, and in substance his case is that there has been a wrongful interence with the conditions of his service by the stoppage of three increments. As the Supreme Court pointed out in Kulchhinder Singh Brar, AIR 1976 SC 2216, where a petitioner is seeking to enforce a contract, he cannot invoke the jurisdiction under article 226 bypassing the normal channels of civil litigation. Even in W.P. No. 3711 of 1970 dated 7/06/1971, another ground for dismissing the writ petition was that in terminating the services of its own employees, the co-operative society cannot be said to be acting in the discharge of a public duty. in considering whether a particular body is an institution amenable to jurisdiction under article 226, it was observed that it is to be ascertained whether the particular act complained of is one which was done in discharge of a public duty. A statutory body entrusted generally with the performance of a public duty may still performed several acts which cannot be considered to be public functions like entering into a contract for the purchase of goods to other property. While doing so, it is not discharging a public function. Similarly, is was held that termination of services is one connected only with the contract of employment. A fortiori in this case, the stoppage of increments cannot be regarded as a public function, but is only one connected with the contract...." A similar view was taken by a learned single judge in Ranga Reddy v. Co-operative Electricity Supply Society Lt. [1977] ALT 172.

(3.) In V. Narasinga Rao v. Prudential Co-operative Urban Bank Ltd. [1989] 1 ALT 300; [1990] 77 FJR 361, a Division Bench comprising two of us (Jeevan Reddy and Syed Shah Mohammed Quardi JJ.) examined this question. That was a case where an employee of the Prudential Co-operative Urban Bank was dismissed by the bank in pursuance of a disciplinary enquiry, which order was challenged by way of a writ petition. The writ petition was referred to a Division Bench by a learned single judge in view of the Bench decision in P. S. Naidu v. Chittor District Co-operative Central bank [1977] 2 APLJ 282, and the decision in Ranga Reddy v. Co- operative Electricity Supply Society Ltd. [19977] ALT 172. It would be appropriate to notice the propositions flowing from the decision in Narasinga Rao [1989] 1 ALT 300; [1990] 77 FJR 361. They are : (i) The question whether a writ petition lies against a co- operative society or not, has to be examined in the light of the language employed in article 226, which empowers this court "to issue to any person or authority including in appropriate cases any Government...directions, orders 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". The expressions 'person" or "authority" have been defined in the Constitution. The definition of "person" in the General Clauses Act is of little help in determining its meaning and scope. The expressions "authorities" occurs in the definition of "State" contained in article 12 of the Constitution but even that does not throw any light on the meaning of the expression "authority". These ought to be several authorities falling outsides the definition of "State" but amenable to writ jurisdiction under article 226. (ii) Applying the tests evolved by the Supreme Court in Ramana Dayaram Shetty, AIR 1979 SC 1628, and other decisions, if it can be held that a particular society can be characterized as "State", a writ would lie against it. It was observed (at page 363 of 77 FJR): "So far as the authorities which fall within the definition of 'state' in article 12 are concerned, it is admitted on all hands that they are amenable to the writ jurisdiction of this court...". And again (at page 363 of 77 FJR): "if a co- operative society in a given case can be held to be 'State', a writ would lie against it". On an examination of the relevant material, however, it held that the society concerned therein cannot be characterizes as "State". (ii) The society concerned therein cannot also be characterized as an "authority" within the meaning of article 226, applying the definition of the expression "authority" approved by the Supreme Court in Rajasthan State Electricity Board v,. Mohan Lal, AIR 1967 SC 1857. (iv) A writ can undoubtedly issue against a co-operative society on the basis that it is a "person" within the meaning of article 226, as held by P.A.Choudary, J., in T.Gattaiah's case [1981] 1 APLJ 280, whose decision was affirmed by a Division Bench in Writ Appeal No. 16 of 1981, dated 4/12/1981. But this can be done only where the petitioner is seeking enforcement of a statutory public duty. No such duty was sought to be enforced in the case before it. (v) Though the technical rules evolved in the U.K.in the matter of these high prerogative writs do not shackle the High Courts in India while acting under article 226, the broad principles governing the same in English law must yet be kept in mind, as observed by the Supreme Court. Writ is a public law remedy. (vi) The Supreme Court has held in Co-operative Central Bank Ltd. v. Addl. Industrial Tribunal, Hyderabad [1970] 37 FJR 118; [1970] 40 Comp Cas 206, that the bye-laws of a society do not have the force of law. (vii) The principle of the decision of the Court of Appeal in Regina v. Criminal Injuries compensation Board: Ex parte Lain [1967] 2 QB 864 too cannot help the petitioner in maintaining the said writ petition. Since the society was not performing a public function akin to Governmental function.