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TMI Blog1990 (3) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... us (Kuppuswami, J.) following the decision of a Division Bench of this (Madras?) Court in Lakshmaiah v. Sri Perumbadur T.C.M. Society, ; 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 of opinion between the various High Courts 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 interference with his conditions of service by the stoppage of three increments. As the Supreme Court pointed out in Kulchindar Singh v. Hardayal Singh Brar, , where a petitioner is seeking to enforce a contract, he cannot invoke the jurisdiction under Article 226 by-passing the normal channels of civil litigation. Even in W.P. No. 3788 of 1970 dated 7-6-1971 : (reported in (1971) 2 APLJ (SN) 16), another ground for dismissing the writ petition was that in terminating the services of its own employees, the Cooperative Society cannot be said to be acting in the discharge of a public duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not 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 expression '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'. There ought to be several authorities failing outside 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, , and other decisions, if it can be held that a particular Society can be characterised as 'State', a writ would lie against it. It was observed: "So far as the authorities which fall within the definition of 'State' in Art. 12 are concerned, it is admitted on all hands that they are amenable to writ jurisdiction of this Court.....". And again, "if a co-operative society in a given case can be held to be a 'State', a writ would lie against it". On an examination of the relevant material, however, it held that the Society concerned therein cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropositions". After an elaborate examination of the case law, the learned Judge enunciated three propositions in the following words: "(i) a statutory duty enjoined on a cooperative society can be enforced by a writ of mandamus even if the society is not an authority under Art. 12; (ii) if a co-operative society is funded by the State in full or substantial measure and the governmental control is deep and pervasive, it falls within the ambit of Art. 12 of the Constitution and, therefore, its actions can be questioned by a writ of ceniorari; (iii) since every bye-law of a co-operative society falling under Article 12 is comprehended by the inclusive definition of 'law' under Art. 13(3)(a), it being void to the extent of its inconsistency with the provisions of Part III of the Constitution, this Court cannot decline to grant judicial review by a writ of certiorari against such a society on the sole ground that the relief claimed by the petitioner is founded on breach of bye-laws." the learned Judge held further that the decision of the Supreme Court in Co-operative Central Bank, and its subsequent decision in B.K. Garad v. Nasik Merchant's Co-operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fairness. It cannot be left to the sweet will and pleasure of such Society to follow, or not to follow the bye-laws in a given case. If it is so left to its will and pleasure, it may choose to follow the bye-laws in one case and to ignore them altogether in another case; yet in another case it may choose to follow the bye-laws partly. This would undoubtedly lead to arbitrary and discriminatory results, violative of Art. 14 of the Constitution. Once a Society is characterised as 'State' within the meaning of Art. 12, it has to act in conformity with Art. 14, and the other Articles in Part III of the Constitution. This principle has been recognised in several decisions of this Court. In W.P. Nos. 106 and 107 of 1983 dated 8-11-1983, (1983) 2 Andh LT (SN) 98 (2) : (1984 Lab IC NOC 49), one of us (Jeevan Reddy, J.), dealing with the enforceability of non-statutory conditions of service obtaining under a Company, which was held to be a 'State' within the meaning of Art. 12, stated the rule thus: "Where a Corporation, Company, or Society is held to be a 'State' within the meaning of Art. 12, it is governed by Parts III and IV of the Constitution. Such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of respondent No. 1 to follow the bye-laws, if the bye-laws have been framed for the conduct of its affairs, to avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by bye-law 2. Compliance with this bye-law also seems to be necessary in the name of fair-play." (ii) Even if a particular Society cannot be characterised as a 'State' within the meaning of Art. 12 of the Constitution, even so a writ would lie against it to enforce a statutory public duty which a person is entitled to enforce. In such a situation, it is unnecessary to go into the question whether the Society is a 'person' or an 'authority', within the meaning of Art. 226. What is material is the nature of the statutory duty placed upon it. This is the principle affirmed in Gattaiah, (1981) 1 APLJ (HC) 280: (1981 Lab 1C 942), affirmed by the Bench in Writ Appeal No. 16/1981. 8. We shall now proceed to deal with the questions upon which there has been a difference of opinion. The first such question is: Whether the bye-laws framed by a Cooperative Society have the force of law? 9. The power to make law belongs to the Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, before registering a Society, the Registrar should be satisfied that "the proposed bye-laws are not contrary to the provisions of the Act and the Rules"; (vide S.7(1)(d)). Section 16 provides for the manner in which the bye-laws of a Society can be amended. It says that an amendment to the bye-laws of a Society shall not be valid unless it is approved by the Registrar. Power is also conferred upon the Registrar to direct the amendment of a bye-law, and in case of default or refusal of the society, he can himself amend such bye-laws in the manner indicated by him. These bye-laws can by no stretch of imagination be characterised as delegated legislation. 10. Apart from the above theoretical discussion, the Supreme Court has specifically rules, in the case of A. P. Co-operative Societies Act itself, that the bye-laws made by a Society do not have the force of law. In Co-operative Central Bank Ltd. v. Industrial Tribunal, Hyderabad, , the supreme Court had this to say (at p. 252 of AIR): "We are unable to accept the submission that the bye-laws of a co-operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are rendered by Division Benches comprising three Judges each. 12. Now, let us examine whether these decisions can be said to be not binding, on the ground that while laying down the aforesaid principle, the two Division Benches have failed to note the earlier decisions of larger Benches, as pointed out by the learned single Judge in A.P.D.D.C. Federation (1989) 2 APLJ (HC) 455. The earlier decisions which, according to the learned single Judge, laid down a contrary proposition, are Rashid Ahmed v. Municipal Board, Kairana and Mohd. Yasin v. Town Area Committee . We have carefully gone through the decision in Rashid Ahmed v. Municipal Board. There is no discussion in this decision with respect to the nature of the bye-laws made by the Municipal Board. Nor is there any discussion, whether they have the force of law. (The bye-laws considered therein were made under Section 298 of the U.P. Municipalities Act, 1916 and as we shall presently demonstrate, constituted delegated legislation. Neither party contended that they do not have force of law. Indeed, such a contention could not have been raised, since, being delegated legislation, they did have force of law. So far as the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of our Constitution". With great respect to the learned single Judge, we are unable to read the above observations as laying down the proposition that bye-laws do have the force of law, irrespective of the manner in which, and the authority under which they are made. The Supreme Court said in the first instance that the impugned bye-laws were ultra vires the rule-making power of the Town Area Committee and, accordingly, observed that the bye-laws cannot, therefore, be said to constitute valid law, within the meaning of Article 19(6) of the Constitution. From this it does not follow that the Supreme Court laid down that bye-laws, by whomsoever made and under whatsoever enactment, have the force of law. In this decision too, the question whether the bye-laws have the force of law was neither raised, nor considered. 14. In this connection, it is important to remember that the Bye-laws considered in these two cases were not the bye-laws made by a Co-operative Society much less under a Cooperative Societies Act. Though called "Bye-Laws", they constituted delegated legislation, having been made in exercise of the power conferred by Section 298 of the U.P. Municipalities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that they did not take note of the earlier decisions in Rashid Ahmed and Mohd. Yasin . Co-operative Central Bank was decided under the A.P. Co-operative Societies Act. It expressly lays down, after a good amount of discussion, that bye-laws framed by a cooperative society as contemplated by the Act do not have the force of law. This decision was specifically referred to, and followed in the later decision in B.K. Garad v. Nasik Merchants' Co-operative Bank Ltd. . The earlier cases neither arose under the Co-operative Societies Act, nor did they deal with the said question. The bye-laws considered in those cases are qualitatively different as explained hereinbefore, and bear no similarity to the bye-laws of a Co-operative Society under the A.P. Act, It would, therefore, not be right to infer a contradiction between the said earlier decisions and the two later decisions, or to hold that the subsequent decisions do not represent good law and need not be followed by this Court. 17. The learned single Judge further relied upon the definition of 'law' in sub-clause (a) of Clause (3) of Article 13 in support of his proposition that the bye-laws made by a co-operative societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aik v. State of A.P., , the Court held (at p. 2097 of AIR): "The installation of the high-voltage wires lacks a statutory basis and seems to have been devised on the strength of departmental instructions. Such instructions are neither 'law' within the meaning of Art. 13(3)(a) nor are they "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore, if the petitioners are right in their contention that the mechanism constitutes an infringement of any of the fundamental rights available to them, they would be entitled to the relief sought by them that the mechanism be dismantled. The State has not justified the installation of the mechanism on the basis of a 'law' or a 'procedure established by law". 18. In Dwarka Nath v. Bihar State AIR 1959 SC 249, the Court was considering whether Art. 182 of the Bihar Education Code is 'law' within the meaning of Art. 31(1) of the Constitution. If it were law, then the deprivation of property provided thereby, could not have been complained of as being violative of Art. 31(1), since the deprivation in such a case would be by authority of law, within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle relied upon by the respondents as having the force of law, has no such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid" 19. Under clauses (2) to (6) of Art. 19, it has been repeatedly held that the 'law' contemplated therein is statutory law or an instrument/order/notification having the force of law, but not those not having the force of law. We do not think it necessary to cite decisions in support of this proposition. 20. Seervai in his treatise "Constitutional Law of India", elaborates the said definition in the following words: - "Article 13(3)(a) defines 'law' very widely by inclusive definition. It does not expressly include a law enacted by the Legislature, for such an enactment is obviously law. The definition of law includes : (i) an Ordinance, because it is made in the exercise of the legislative powers of the Executive; (ii) an order, bye-law, rule, regulation, and notification having the force of law, because ordinarily they form the category of sub-ordinate delegated legislation and are not enacted by the Legislature; (iii) custom or usage having the force of law, bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 332 and 333, of course, provide for the manner of making bye-laws and their approval by the Government, when alone they become effective. Sections 585 and 586 of the Hyderabad Municipal Corporation Act, 1955, correspond to Sections 330 and 331 of A.P. Municipalities Act. (In this connection, it may be noted that Regulations which the statutory Corporations are empowered to make under various enactments, like Road Transport Corporations Act and Air Corporations Act also require that the Regulations should not be inconsistent with the Rules made under the Act, and further that they must be made with the previous approval of the Central Government. That does not affect their nature or legal effect. For example, see Section 45(3) of Air Corporations Act, Section 49(1) of L.I.C. Act, Section 42(1) of Warehousing Corporations Act, and soon. 23. The learned single Judge in A.P.-D.D.C. Federation (1989-2 APLJ (HC) 455) also relied upon two other later decisions of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath (wherein the Central Inland Water Transport Corporation Ltd. a Government of India Undertaking, was held to be 'State' within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it can be characterized as an 'authority' within the meaning of Art. 12, have been enunciated in Ramana Dayaram Shetty and affirmed in Ajay Hasia v. Khalid Mujib . They are the following (at p. 496 of AIR) : "(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instru- mentality or agency of Government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (3) It may also be a relevant factor whether the corporation enjoys monopoly status which is the State conferred or State protected. (4) Existence of "deep and pervasive State control" may afford an indication that the Corporation is a State agency or instrumentality. (5) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) "Specifically, if a department of Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the information furnished by Sri K. Srinivasa Murthy, learned counsel for the appellant-Bank, the Government's shareholding in the Kakinada District Co-operative Central Bank is in the following proportion: Total paid-up share capital as on 30-6-1987: ₹ 693.33 Lakhs -- out of which the State Government held shares worth 79.10 Lakhs. Total paid-up share capital as on 30-6-1988: ₹ 689.35 Lakhs -- out of which the Government's share-holding was 78.40 Lakhs. (The position in December 1988 is practically the same). It is thus clear that the Government's shareholding is in the region of 10%, which can be said to be negligible. There is another aspect to this test which is emphasised by a Division Bench of the Patna High Court in H. N. Banker v. State of Bihar (1986) 2 Serv LR256 ; (1985 Lab IC 1807). It is pointed out in the said decision that even though the Government owns a substantial number of shares of a co-operative society, still it would be having only one vote, just like an individual share holder, holding one share. Accordingly, it is pointed out, the importance given to shareholding in the first test enunciated by the Supreme Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and pervasive State control mean? Does every legislative regulation constitute State control, or does State control mean only the control vesting in the executive, either under a statute or under the constitution (including Memorandum) and bye-laws (including Articles) of the body. This question becomes relevant whenever the Court proceeds to examine whether a company (incorporated under the Companies Act) or a Society (whether registered under the Societies Registration Act or Co-operative Societies Act) can be characterized as a 'State' within the meaning of Art. 12? (In case of statutory Corporations, created by legislative Acts, normally to perform statutory public functions, such a question may not arise, since by their very nature and constitution, they are liable to be characterized as 'State' see test No. 3 at page 136 of B. Satyanarayana v. State (FB). Our considered view is that in case of non-statutory Corporations/ Companies and Societies, etc. State control means the control vesting in the Government or its officers either by the statute or by the constitution/Memorandum of Association/ bye-laws/Articles of Association of the Society or Company concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of such society, or of the cooperative movement. (v) Under Section 31 read with Rule 22, the election to the committee of a co-operative society (except in the case of certain categories of small societies) is conducted by a government official. In many cases, elections have been postponed by the Government and Special Officers appointed under Section 32(7) to manage the affairs of the society though such a course has been frowned upon by this Court. (vi) Section 34 empowers the Registrar to supersede the committee of a society if, in his opinion, "the committee is not functioning properly, or wilfully disobeys or fails to comply wilfully with any lawful order or direction issued by the Registrar under this Act or the Rules". (vii) Section 45 prescribes the mode in which the net profits of a society are to be distributed. It is not open to the society to distribute the entire net profit by way of dividends. Section 46 controls and prescribes the manner of investment of funds also. Section 47(2) prohibits a society from granting a loan to any person other than a member. (viii) Section 59 empowers the Registrar to direct the committee of a society to suspend, pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cterized as deep and pervasive control, within the meaning of the fourth test aforesaid. It must be noted that in this particular Writ Appeal, the society concerned is a Co-operative Central Bank, which is included within the categories of Societies, included in Section 116-A. (5) Whether the functions of the Society are of public importance and closely related to governmental functions? 30. This test, it is generally recognized, is too general to be precise. As has been pointed out by the Supreme Court in Ramana Dayaram Shetty , today the expression "governmental function" is a vague and indefinite description. In a welfare society like ours, it is difficult to draw the demarcating line between governmental and non-govern mental functions. Similarly, it is equally difficult to say with precision, which is a function of public importance, and which is not. If imparting education is a function of public importance, growing foodgrains, distribution of foodgrains, production and distribution of goods essential to society (industrial activity and commerce), providing housing, consumer goods and services essential to life and well being of society are all equally public func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate and private activities which are governmental. (Mathew, J. in Sukhdev v. Bhagatram at p. 1355 of ). But the public nature of the function, if impregnated with governmental character or 'tied or entwined with Government' or fortified by some other additional factors, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference" 32. In the circumstances, it is not possible to say that the appellant-Bank/Society satisfies the fifth test enunciated by the Supreme Court. 33. For the above reasons, the appellant-Society cannot be characterized as a 'State' within the meaning of Article 12. 34. There is yet another aspect which is academic in nature but must be mentioned in the interest of clarity. It is this : Even if for some reason it can be held that the appellant-Society is an 'authority' within the meaning of Art. 12, it does not follow therefrom that every activity of it's is amenable to writ jurisdiction. Even in the case of a Government, a writ petition does not lie to enforce a non-statutory contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment between the Society and the writ petitioner, even so a writ petition lies to enforce the terms of such contract. It is argued that the appellant-Society is a public body and, therefore, it is amenable to a writ of mandamus, as well as a writ of certiorari. It is not possible to agree with the contention. 37. The basic feature of mandamus and certiorari is that they are public law remedies and are not available to enforce private law rights. Though the strict technical rules governing these writs in English law are not applicable in India, yet the broad principles underlying the said writs have to be kept in mind by this Court while exercising the power under Art. 226. Not keeping the said distinction in mind would obliterate the distinction between a writ petition and a suit; there will be chaos. As pointed out by a Constitution Bench of the Supreme Court in T. C. Basappa v. T. Nagappa though the power of the High Court under Art. 226 need not be constricted by the technical rules applicable to these prerogative writs in English law, it is yet necessary to "keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law, are not subject to judicial review. Dealing with the said contentions, the Court observed "While we do find considerable force in the contention of the learned Attorney-General it may not be necessary for us to enter into any lengthy discussion of the topic, as we shall presently see. We also desire to warn ourselves against readily referring to English cases on questions of Constitutional law Administrative Law and Public Law as the law in India in these branches has forced ahead of the law in England, guided as we are by our Constitution and uninhibited as we are by the technical rules which have hampered the development of the English law. While we do not for a moment doubt that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases actions uninformed by reason may be questioned as arbitrary in proceedings under Art. 226 or Art. 32 of the Constitution, we do not construe Art. 14 as a charter for judicial review of State actions and to call upon the State to account for its actions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals. That is the formula stated by Lord Justice Atkin in R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co., (1920) Ltd, (1924) 1 KB 171/205 as broadened by Lord Diplock in O'Reitly v. Mackman (1982)3, WLR 1096/1104). Second, the persons or bodies who are entrusted by Parliament with functions, powers and duties which involve the making of decisions of a public nature...... To which I would add the words of Lord Goddard, C.J. in R. v. National Joint Council for Dental Technicians, ex parte Neate (1953) 1 QB 704/707): "The bodies to which in modern times the remedies of these prerogative writs have been applied have all been statutory bodies on whom Parliament has conferred statutory powers and duties which, when exercised, may lead to the detriment of subjects who may have to submit to their jurisdiction". But those categories are not exhaustive. The courts can extend them to any other person or body of a public nature exercising public duties which it is desirable to control by the remedy of judicial revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same law is applicable, whether or not a public duty is involved. Prima facie, the same is true in relation to employment. The servant employed by a public body ordinarily has the same private rights as any other servant". The position may, however, be different pointed out the learned Law Lord if such relationship is circumscribed by a statutory provision. 39. In this context, it would be appropriate to refer to two important English decisions, where a public duty was implied even in the absence of a statutory provisions. They are R. v. Criminal Injuries Compensation Board, ex parte Lain (1967) 2 All ER 770, and R. v. Panel on take-overs (1987) 1 AH ER 564. In Criminal Injuries Compensation Board, the relevant facts are the following: In the year 1964 the Government of Great Britian announced a Scheme in both Houses of Parliament providing for compensation to victims of violence and persons injured while assisting the police. It was a non-statutory scheme under which compensation was to be paid ex gratia. The scheme was to be administered by a Board, who were to be provided with money through a grant-in-aid, out of which payment would be made when the Board was satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly, therefore, performing public duties. Moreover, the Board are quite clearly under a duty to act judicially" The same idea was put forward by Diplock, L.J., in his separate opinion, where he said : "If new tribunals are established by acts of Government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics on which the subjection of inferior tribunals to the supervisory control of the High Court is based.....". Ashworth, J., justified the issue of certiorari in that case on the following basis: "They (Board) were set up by the executive after the proposal to set them up had been debated in both Houses of Parliament, and the money needed to satisfy their awards is drawn from sums provided by Parliament. It can therefore be said that their existence and their functions have at least been recognized by Parliament, which to my mind has a twofold consequence : in the first place it negatives any notion that the Board are a private tribunal, and secondly it confers on the Board what I may call a public or official character. The number of applications for compensation and the amounts awarded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mat which this court had in mind in R. v. Criminal Injuries Compensation Board (1967-2 QB 867). It is without doubt performing a public duty and an important one. This is clear from the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the field of take-overs and mergers and to use the panel as the centrepiece of his regulation of that market. The rights of citizens are indirectly affected by its decisions, some, but by no means all of whom, may in a technical sense be said to have assented to this situation, e.g., the members of the Stock Exchange. At least in its determination of whether there has been a breach of the Code, it has a duty to act judicially and it asserts that its raison d'etre is to do equity between one shareholder and another. Its source of power is only partly based on moral persuarion and the assent of institutions and their members, the bottom line being the statutory powers exercised by the Department of Trade and Industries and the Bank of England. In this context I should be very disappointed if the courts could not recognize the realities of executive power and allowed their vision to be clouded by the subt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns lays down any such proposition. We shall first take up Rudani. 43. In Rudani , the claim of the teachers against the educational institution was for terminal benefits and arrears of salary payable. They were not seeking reinstatement in service. The Division Bench distinguished the earlier decisions in Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888, and Deepak Kumar Biswas v. Director of Public Instruction, , as cases where the relief of reinstatement was sought. Having pointed out the said distinction, Jagannatha Shetty, J. speaking for the Bench, observed (at p. 1611 of AIR): "If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied" The learned Judge then referred to the fact that the appellant-educational institution was in receipt of Government aid. Such aid, it was pointed out, plays a major role in the control, maintenance and working of educational institutions; the function performed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of the writ petition" In particular, reliance is upon the extract from De Smith, where it is stated that a duty enforceable by mandamus can arise even from a contract. We find that the two sentences from De Smith extracted in the above paragraph, are drawn from an old English decision, viz., Ex parte Napier, (1852) 18 QB 692 (re-printed in English Reports 118, at p. 261). Sir Charles James Napier was an Officer commanding certain land forces of Her Majesty and of the East India Company, then serving in Scinde (India). Certain booty was seized in the course of their operations and Sir Napier claimed a share therein. The Company paid him a particular amount, but subsequently sought to deduct a part of it from his salary on.the ground that there was excess payment. Thereupon, Sir Napier took out a motion for a rule against East India Company to show cause why a mandamus should not issue to pay to him the amount deducted from his salary. The question was, whether a mandamus can issue? The question was posed in the following words "The, first question to be considered is, whether, if his pay had been withheld from him without any reason being assigned, there is any jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex parte Napier (1852-18 QB 692), but even so it was held that a mandamus does not lie in that case. 45. We are, therefore, of the opinion that paragraph 21 in Rudani cannot be understood as laying down a general proposition that a mandamus lies to enforce a non-statutory contract. Indeed, in paragraph 14 it was affirmed that, if the rights sought to be enforced are purely of private character, no mandamus can issue. It was also observed that where there is no public duty imposed upon a body, a mandamus would not lie. The statement in paragraph 21 must, therefore, be read consistent with what is stated in paragraph 14, and if the judgment is read as a whole and consistent with the decisions specifically referred to, and affirmed therein, it only means that for a mandamus to issue, there must be a public duty. All that was stated was that such public duty need not necessarily be imposed by a statute; it can be imposed by common law, custom, or even a statutory contract. This aspect has already been dealt with by us in para ( ) supra. 46. Now coming to Bombay Port Trust case , it stands as a category apart on its facts. Firstly, it was a case of Bombay Port Trust which is, undoubte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court as constituting motifs of a harmonious pattern. After all, judgments ought not to be read as statutes; they are authority for what they decide. A word here or a word there, should not be made a basis for infering inconsistency or conflict of opinion. Law does not develop in a casual manner. It develops by conscious, considered steps. The impact of Section 47 of A. P. Shops and Establishments Act, 1988 (Sec. 40 of A. P. Shops and Establishments Act, 1966): 48. A co-operative society may be an industry if it satisfies the requirements of the definition of 'industry' in S. 2(j) of the Industrial Disputes Act. In such a situation, the provisions of Chapters V-A and V-B will apply, and certain protection would be available to the employees in the matter of termination. Since some of the provisions' of the said Chapters are based upon public policy, they will be enforced by way of a writ of mandamus, in case they are violated. 49. Apart from the Industrial Disputes Act, the A. P. Shops and Establishments Act also applies to a co-operative society. The definition of 'commercial establishment' in Section 2(5) of the Shops and Establishments Act includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f as well. This does not mean that in every case where S. 47 is violated, this Court would automatically interfere. It must be remembered that the Act provides for remedies in case of violation of the said provisions. Ordinarily, the parties ought to pursue the remedies provided by the Act and the Rules; but, in appropriate cases this Court can also interfere, notwithstanding that the employee has not chosen to avail of the remedies provided by the statute. In which cases, and in what circumstances would this Court interfere should be left to its judgment and discretion, to be exercised having regard to the facts of a given case. 51. Summary: From the above discussion the following proposition's emerge (i) If a particular co-operative society can I be characterised as a 'State within the mean-j ing 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 Art. 226 of the Constitution. In such a situation, an order passed by a Society against its employee in violation of the bye-laws, can be corrected by way of a writ petition. This is not because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of Art. 12, does not necessarily belong to public, law field. A society, which is a 'State', may have its private law rights just like a Government. A contractual obligations, which is not statutory, cannot be enforced by way of a writ petition under Art. 226 of the Constitution. Prior to entering into contract, however, Art. 14 operates, as explained by the Supreme Court in E.E. & C. Ltd. v. State of West Bengal, , and Rarnana Dayaram Shetty, . Applying the above principles, let us now examine the facts in these cases. W.A. No. 69/1986: 52. The respondent herein (writ petitioner) was. appointed on 18-11-1983 by the President of the appellant-Bank. His services were terminated by an order dated 27-6-1984. The order of termination says that the writ petitioner (respondent) was appointed by the President "without following the procedure suggested by the Registrar of Co-operative Societies in the matter of notifying vacancies in the dailies and selection by Ad hoc Committee after examination of the academic and training qualifications and tests required, etc. ....", and recites further: "Whereas it is now decided by the Management to set right all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is complained, in the year 1988 the 4th respondent has been appointed to the said post, though the said person had never appeard in the written test held in 1984. This, it is complained, is denial of legitimate rights of the petitioner. It is not even alleged in the writ petition that the respondent-Bank is a 'State' within the meaning of Art. 12, nor is it mentioned how the present writ petition is maintanable against the respondent. In the counter-affidavit filed by the 4th respondent it is stated that he has nothing to do with the 1984 interviews, that he is a physically handicapped person, and that in pursuance of the reservation of 3% provided in favour of physically handicapped persons under G.O.Ms. No. 1034, G.A.D., dt. 1-8-1966 he was appointed to the said post. According to him, the said post is reserved for physically handicapped persons. In this state of pleadings, and in the absence of any rights in the petitioner to compel the respondent-Bank to make an appointment in pursuance of the written test held by it, the writ petition must fail. The writ petition is, accordingly, dismissed. No costs. W.P. No.1780/1989: 54. This writ petition is filed by the Secre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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