TMI Blog1998 (12) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bank to an unauthorized person; that he did not manage properly to keep with him the cash and draft receipt books failure of which facilitated Shri Birendra Kumar Sharma, Assistant Accountant of the Bank (since suspended) to commit embezzlement and in that he conspired with Sharma; and that he derelicted in the discharge of his duties. Dubey was apprised of the evidence proposed to be used in the disciplinary proceedings. In the cases of Kanta Prasad Sharma (CA No. 515/855) and Bhaskara Chandra Uppadhyaya (CA No. 516/85), Driver and Branch Accountant of the Bank respectively charges were that they being the full time employees of the bank participated in the strike which was banned in the Bank by the State Government and thus declared illegal which disrupted the normal working of the Bank; that both of them created an atmosphere of terror along with others and also obstructed other employees if the Bank from working; and thus they instigated them to strike; and that they created indiscipline in the Bank by participating and organising a meeting illegally in the premises of the Bank during office hours without prior permission of the competent authority in which meeting slogan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed. Thereafter he sent further reply and stated that he had nothing to say more in his defence. The Inquiry Officer sent his report holding charges 2 to 5 proved against him. A show cause notice was issued to Dubey as to why he be not dismissed from the service of the Bank. He gave reply to the show cause notice. After receipt of his answer to the show cause notice the disciplinary authority held the charges established against Dubey and by order dated July 22, 1983 dismissed him from Bank's service. Respondent - Sharma replied to the show cause notice. He did not ask for any personal hearing. The Inquiry Officer submitted his report holding the charges proved against Sharma. He was served with a show cause notice as to why he be not dismissed from the service of the Bank. He gave no reply. The disciplinary authority held the charges proved and ordered dismissal of Sharma by order dated July 20/22, 1983. Respondent Uppadhyaya submitted his reply to the charge-sheet served upon him. He did not desire any personal hearing and only wanted that his explanation as given in his reply be considered sympathetically. The Inquiry Officer found the charges proved against Uppadhyaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ival contentions it may be appropriate at this stage to set out the relevant provisions of law as applicable in these appeals. The appellant though a co-operative society registered under the U.P. Co-operative Societies Act, 1965 (for short, Societies Act') is constituted under the Utter Pradesh Co-operative Land Development Bank Act, 1964 (for short, the 'Bank Act'). It is, therefore, governed by the provisions of both these Acts and the Rules framed thereunder. Section 122 of the Societies Act prescribes constitution of an authority to control employees of co-operative societies. This Section we may reproduce as under : 122. Authority to control employees of co-operative societies:- (1) The State Government may constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of co-operative societies, or a class of co-operative societies, and may require such authority or authorities to frame Regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employees and, subject to the provisions contained in Section 70, settlem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety only in respect of their emoluments and benefits or to opt the new service rules on these matters. Explanations :- (1) Provisions relating to pay, increments and allowances (other than travelling allowance), provident fund and gratuity shall be deemed as included in the term emoluments and benefits . (2) In case of any doubt or dispute in interpretation in respect of the matter mentioned in (1) above, reference shall be made to the Board whose decision shall be final. (3) Existing service rules means authentic service rules framed by and with the approval of the competent authority. 103. The provisions of these regulations to the extent of their inconsistency, with any of the provisions of the Industrial Disputes Act, 1947. U.P. Dookan Aur Vanijya Adhisthan Adhiniyam, 1962, Workmen's Compensation Act, 1923 and any other labour laws for the time being in force, if applicable to any co-operative society or class of co-operative societies, shall be deemed to be inoperative. Chapter VII of the Regulations contains provisions for penalties, disciplinary proceedings and appeals. Under Regulation 84, an employee can be removed from service and he is to be provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the employee shall be served with a charge sheer containing specific charges, the evidence in support of each charge and the employee shall be required to submit explanation in respect of the charge within a reasonable time which shall be not less than 15 days. The employee shall also be given an opportunity to cross examine or to produce witnesses in his defence at his own cost and shall also be given an opportunity of being heard in person, if he so desires. If no explanation in respect of charge sheet is received or the explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory the competent authority may award him punishment considered necessary. Order imposing penalty or dismissal from service shall not be passed against the employee except with the prior concurrence of the Service Board. A copy of the order of punishment shall be given to the employee concerned. No penalty or dismissal from service shall be imposed unless a show cause notice has been given to the employee and he has either failed to reply within the specified time or his reply found to be unsatisfactory by the competent authority. It will be seen that all the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We have seen above that the appellant is functioning as a co-operative society under the Societies Act but it has been constituted under the provision of the Bank Act. In exercise of power conferred on the State Government by Section 30 of the Bank Act, Rules have been framed called the U.P. Cooperative Land Development Banks Rules, 1971 . For the service condition of the employees of the appellant, we have to refer to the Societies Act and the Regulations framed by the U.P. Cooperative Institutional Service Board constituted under Section 122 of the Societies Act as well as to the Service Rules framed by the appellant under Regulation 102 of the Service Regulations. Service Rules framed by the appellant shall be operative only after their approval by the Institutional Service Board. Any order of dismissal by the appellant can be issued only after its approval by the aforesaid Board. If we refer to the Bank Act, it will be seen that under Section 3 there shall not be more than one State Land Development Bank for the whole of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese provisions unmistakably show that the affairs of the appellant are controlled by the State Government though it functions as a cooperative society and it is certainly an extended arm of the State and thus an instrumentality of the State or authority as mentioned under Article 12 of the Constitution. We also find from the Service Rules that the Managing Director and Chief General Manager of the appellant are officials of the State sent on deputation to the appellant. These two officers are at the helm of the affairs of the appellant. It is difficult to imagine a situation where a Government sends one of its employees on deputation to head a body or institution not controlled by that Government even though the employee may be paid out of the funds of that body or institutions unless there is specific provision of law so entitling the Government. We also find that Service Rules have been framed under the statute and those Rules have the approval of a statutory body. Exercise of power of dismissal by the appellant has to be in accordance with the statutory regulations and with the approval of the statutory body. In Sukhdev Singh and others vs. Bhagatram Sardar Singh Reghuvanshi an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abha [1963 Supp.(1) SCR 625, 640] which nail the argument against the existence of jurisdiction. The learned Judge clarified at p.640 : Article 226 under which a writ of certiorari can be used in an appropriate case, is, in a sense, wider than Article 136, because the power conferred on the High Courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued courts or tribunals. Under Article 226(1), an appropriate writ can be issued to any person or authority, including in appropriate cases any Government, within the territories prescribed. Therefore, even if the arbitrator appointed under Section 10A is not a tribunal under Article 136 in a proper cases.' a writ may lie against his award' under Article 226 . In Life Insurance Corporation of India vs. Escorts Ltd., And other [(1986) 1 SCC 264] another Constitution Bench had to say as under : It was, however, urged by the learned counsel for the company that the Life Insurance Corporation was an instrumentality of the State and was, therefore, debarred by Article 14 from acting arbitrarily. It was, therefore, under an obligation to state to the court its reasons fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red two decisions of this Court : Executive Committee of Vaish Degree College Shamli Ors. v. Lakshmi Narain Ors. [(1976) 2 SCC 58] and Deepak Kumar Biswas vs. Director of Public Instruction [(1987) 2 SCC 252]. This Court, however distinguished those two decisions and said that the facts before it were different and that there was no plea for specific performance of contractual service by the respondents now in the case before it. Respondents were not seeking a declaration that they be continued in service and they were not asking for mandamus to put them back into the college. But they were claiming only the terminal benefits and arrears of salary payable to them. The question thus was whether the trust could be compelled to pay by writ of mandamus? The Court noted the observations of Subba Rao, J. in Dwarkanath, H.U.E. vs. ITO, Special Circle Kappur Anr. [(1965) 3 SCR 5536] as under : This article is couched in comprehensive phraseology and it exfacie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. And finally it said as under : Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforce is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. We share this view. 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 meet 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. We, therefore, reject the contention urged for the appellants on the maintainabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enforce against 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. What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty. In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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