IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.129 of 2010 THE ORGANIZER DEHRI C.D. & C.M. UNION LIMITED FAZALGANJ SASARAM, DISTRICT-ROHTAS . Versus STATE OF BIHAR & ORS. . ----------- For the Petitioner:- Mr. Bindhyachal Singh, Adv. Mr. Rameshwar Singh, Adv. For the O.P.s 8 and 9:- Mr. Yogesh Chandra Verma, Sr. Adv. Mr. Rajani Kant Singh, Adv. For the State: O.P. Nos. 1 to 5:- Mr. Piyush Lal, Adv. --------------- 4. 30.03.2011 Heard learned counsel for the petitioner and for the opposite party nos. 8 and 9. The opposite parties were the petitioners in C.W.J.C. No. 12878 of 2003, aggrieved by the order dated1.10.2003 dismissing them from service. No one had appeared on behalf of the respondents 6 and 7 who are the petitioners in the present review application. However, there was a counter affidavit on record on their behalf. Unfortunately, the counter affidavit could not be adequately brought to the attention of the Court in absence of any representation on their behalf leading to an order dated 4.2.2010 allowing the writ petition without considering the same. In L.P.A. No. 746 of 2010 preferred by the present petitioner, liberty was granted to apply for review. With consent of the counsel for the parties, the Review application and the writ petition were taken 2 up together for consideration. The writ petitioners had made a primary grievance that a show cause notice was issued to them as to why departmental proceedings be not initiated, duly replied to. Thereafter no charges were framed, no evidence was supplied and without holding a departmental proceeding, they were dismissed from service. The order of termination was accordingly set aside. Observations were made of the manner in which any claim of back wages were to be considered. Learned counsel for the original respondent/petitioner contended that the Society was a private Co-operative Society registered under the Bihar Co-operative Societies Act. The writ petition was therefore not maintainable. The remedy for the aggrieved lay before the Registrar of Co-operative Societies alone. The Co-operative Society did not come within the definition of “State” under Article 12 of the Constitution of India to justify the maintainability of the writ petition. Whether the society falls within the definition of term “State” or not is a pure question of law which could be raised at any time without the necessity of any pleadings in the writ petition in support of the same. In any event of the matter, the trappings of a procedure were followed before the order 3 of punishment was passed. A show cause notice was given, the reply duly considered and whereafter the final punishment had been imposed. It was not a case simplicitor of an order behind the back of the petitioners and therefore the Court may not interfere with the same. Counsel for the writ petitioners has opposed the review application to submit that the impugned action had been initiated during the time that an Administrator had been appointed and the orders of punishment were passed by the Administrator. The writ petition was therefore justifiably maintainable. Reliance was placed on 1988 PLJR 1065 (Nandkishore Rai vs. State of Bihar) in absence of any proper procedure having been followed before visiting them with a serious punishment like dismissal, the impugned order was not sustainable. A question of law can be raised at any stage as has rightly been contended on behalf of the Society. But the question of law shall arise on foundational facts. If there are no foundational facts laid by the Society, a question or proposition of law cannot be tested in the void. No stand has been taken in the counter affidavit on behalf of the Society that the writ petition was not maintainable as it did not fall within 4 the definition of the term “State”. On the contrary, the respondents themselves acknowledged at Paragraph 4D of their counter affidavit that the actions were of the Administrator. The view then in the case of Nandkishore Rai (supra) has been followed by this Court in 1996 (1) PLJR 60 (Narmadeshwar Singh & Ors. Vs. State of Bihar) and 2000 (4) PLJR 273 (Anil Kumar Ojha vs. State of Bihar F.B.). What may have been the procedure followed by a private Co-operative Society for termination of its employee is not relevant for the present controversy. If the actions were of the Administrator, as presently admitted, the full rigours of a departmental proceeding had to be followed. Even otherwise, the Court has its reservation whether a private employer also could have dealt with its employees in the manner as presently done. The giving of a show cause notice and consideration of any reply may be sufficient ground for lesser punishments. But when a punishment as severe as dismissal is to be passed, surely, the delinquent concerned must be fully made aware of the charges and allegations against him, which must be proved on preponderance of probability with an opportunity to defend and then a finding arrived at. From the counter 5 affidavit of the Society including the documents annexed thereto it transpires that undoubtedly a show cause notice given to the petitioner duly replied whereafter a final order has been passed. To this Court, that shall not suffice in absence a proper memo of charges having been drawn up, served on petitioner along with evidence in support of the charges, the appointment of an enquiry officer as also the presenting officer, the charges having proved in the departmental enquiry by oral and documentary evidence, consideration of the defence of the petitioners followed by a finding based on the materials before the enquiry officer. No statement has been made by the respondents in their counter affidavit that any enquiry officer was even appointed. In the entirety of the matter, the Court finds no reason to interfere with the order dated 4.2.2010. The review application is therefore dismissed. P. Kumar ( Navin Sinha, J.)