HARENDER NARAIN BANKER Vs. STATE OF BIHAR

JUDGEMENT

(1.) Whether the Bihar State Co -operative Marketing Union Ltd., a society registered under the Bihar and Orissa Co -operative Societies Act, 1935 is in essence, an instrumentality or agency of the State and, consequently, amenable to the writ jurisdictions, is the meaningful threshold question in this writ petition. The facts deserve notice only in so far as they are relevant to the pristine issue aforesaid. The Bihar State Co -operative Marketing Union, Ltd., Patna (hereinafter to be referred to as the 'Biscomaun') is an apex society Which, on the petitioner's own showing is duly registered under the Bihar and Orissa Co -operative Societies Act (hereinafter to be referred to as the 'Act'). Harendra Narain Banker, petitioner, entered the service of Biscomaun in the year 1965 and was promoted to the post of the Accountant in the year 1970. A first information report pertaining to defalcation to the tune of Rs. 3.(sic) lacs or more was lodged on the 30th of March, 1977 in which the petitioner was implicated and arrested and admittedly the criminal case is proceeding in the court of a Judicial Magistrate, Patna. Departmental proceedings were initiated against the petitioner in which the Deputy Managing Director was appointed as the Inquiry officer who rendered a report holding the petitioner guilty of various charges on the basis of which he was dismissed. Aggrieved thereby, the petitioner preferred an appeal to the Registrar of Co -operative Societies, Bihar, which, according to him is being inordinately delayed. Herein the petitioner primarily seeks a writ in the nature of certiorari for quashing letter No. C 1546 dated the 20th of October, 1979 dismissing him from the post of Accountant, and it is common ground that the primary relief sought was against Biscomaun. Threshold question that consequently arises is whether the present writ petition is maintainable at all against the co -operative. society known as Biscomaun.

(2.) It would appear that originally the writ petitioner was perhaps not alive to this aspect of the case and no relevant averments with regard thereto were made. However, the issue having been pointedly raised during the motion hearing, two supplementary affidavits have been filed on behalf of the petitioner to sustain his claim that the respondent Biscomaun is an instrumentality and agency of the State and, therefore, amenable to the writ jurisdiction under Article 226. It is averred on behalf of the petitioner that all the employees of Biscomaun are governed by the provisions contained in the Bihar Service Code and their pay scale and emoluments are at par with those of Government servants. Further the replacement scale of salary as contained in Government Resolution No. 3/P.R.C. -3/81/F -I0770 dated 30th of December, 1982, which was issued on the recommendation of the 4th Pay Revision Committee has also been made applicable to the employees of Biscomaun. It is averred that the share of the State Government in Biscomaun is 99 per cent and barring the shares held by co -operative societies and others to the tune of Rs. 2,87,502.00, the remaining share capital is held by the State. A vague averment has been made that" the Biscomaun is run and managed by 35 Government servants and amongst these one is an LAS. officer and 4 persons are in the rank of Additional District Magistrates.

(3.) In the counter affidavit filed by the Law Officer of the respondent Biscomaun, the stand of the writ petitioner in this context is stoutly controverted. It is pointed out that the respondent is a society registered under the Act and consequently conducts its business in accordance with the provisions of the said Act and the Bihar Co -operative Societies Rules, 1959 (hereinafter called the 'Rules') framed thereunder along with its registered Bye -laws. It is denied that the said society is in any way an instrumentality or agency of the State and in terms it is averred that the entire share capital of the respondent is not held by the State Government but also by other member co -operative societies; though it is admitted that the major portion of the share -holding is with the State. It is pointed out that the Biscomaun does not receive any financial assistance from the State which may meet almost its entire expenditure nor does it enjoy any monopoly status which is State conferred or State protected. There is no deep and pervasive State Control over the answering respondent nor are its functions akin to, or identical with, matters of public importance closely related to governmental functions nor was it a department of Government later transferred to constitute Biscomaun. Reliance is primarily placed on the bye -laws of Biscomaun which have been placed on the record as annexure A. From bye -law 6 it is pointed out that the State Government is one of the four classes of shareholders and, therefore, it is only one class of members which contribute to the funds of Biscomaun. It is highlighted that it is not even the case of the petitioner that there is any -massive financial assistance by the State to. Biscomaun (apart from its share -holding) and, indeed, the latter is by itself a profitable and financially viable body. It is then pointed out that the supreme authority of Biscomaun is vested in the general body of the share -holders and apart, from the State there are 524 co -operative societies and individual share -holders and each of them including the State has got only one vote in the -general body meeting. Equally it is then pointed out that in sharp contradistinction with the companies registered under the Indian Companies Act every member of a co -operative society has only one vote irrespective of the number of shares held by him and consequently despite the major share -holding of the State, it has got only one vote in the general body meeting.