Civil Writ Petition No. 10444 of 1994 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 10444 of 1994 Date o f Decision: 16.7.2010 Nirmal Singh …Petitioner Versus The Patiala Co-operative Sugar Mills Limited and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Amit Jain, Advocate for the petitioner. Mr. Rahul Sharma, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) On 6.7.2010, this Court had passed the following order:- “In the present writ petition, a writ of certiorari has been sought with a prayer that impugned order, Annexure P10, whereby the petitioner was dismissed from service, be set aside and a writ of mandamus be issued directing the respondents to take him in service and grant all consequential reliefs. Counsel for the petitioner has urged that principle of natural justice was not followed and in an ex parte enquiry the petitioner was indicted and hurriedly dismissed from service. Civil Writ Petition No. 10444 of 1994 2 Brief facts of the case are that petitioner retired as a Subedar Major from the Army after rendering 25 years of service and thereafter he was appointed by respondent No.1-the Patiala Co- operative Sugar Mills Ltd. (hereinafter to be referred as, `the Sugar Mills') as a Store Keeper and thereafter he was re-designated as Purchase Incharge. It is pleaded in the petition that petitioner had earned dis-pleasure of respondent No.3 K.A.Gaur, Chief Cane Development Officer who was officiating as the Managing Director of the Sugar Mills. A charge-sheet dated 6.4.1994 (Annexure P3) was served upon the petitioner in which three charges were disclosed. One of the charge was that petitioner had purchased Urea from the private dealers without inviting the quotations from the Co- operative Societies, on higher rate of Rs.138/- per bag instead of Rs.126.80 per bag and, thus, he had caused loss of Rs.4704/- to the Sugar Mills. Secondly, he remained willfully absent from duty from 7.3.1994 to 6.6.1994 without getting the leave sanctioned from the competent authority. Lastly, the petitioner had not rendered the account of advance of Rs.57,454.72 received from the Sugar Mills. Petitioner filed reply to the charge-sheet. In the reply, it was stated that since necessary Civil Writ Petition No. 10444 of 1994 3 documents were not supplied, the reply is filed on the basis of the memory. It was further stated that there was acute scarcity of urea and on the specific instructions issued by respondent No.3, Lakhbir Singh, Purchase Clerk purchased 100 bags of the urea. It was further stated that only Lakhbir Singh was competent to purchase the urea and it was purchased by him. It was further stated that he sent an application for leave and subsequently, he was informed by way of telegram that his leave had been cancelled. Petitioner had also submitted the accounts to justify that the advance given to him was spent for the Sugar Mill. Mr.Amit Jain, learned counsel appearing for the petitioner has stated that he is in possession of documents to justify that the accounts stood adjusted with the Sugar Mills. It is stated that since no opportunity was afforded to the petitioner, he could not show the documents to the Enquiry Officer. It is not disputed that petitioner was indicted in an ex parte enquiry. Further more, it is stated that the termination order relied upon the enquiry report, Annexure R3, conducted by Shri Balbir Singh Billing, Enquiry Officer. This enquiry report was subsequently withdrawn. However, the Civil Writ Petition No. 10444 of 1994 4 charges were reiterated. Thereafter, another enquiry was held. Counsel for the petitioner urged that the termination order relied upon the enquiry report, which was lateron withdrawn. Mr.Rahul Sharma, learned counsel appearing for the respondents has relied upon General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. v. Satrughan Nishad and others, 2003(8) SCC 639 and `Prem Singh and others v. State of Punjab and others', Civil Writ Petition No.10806 of 2006, decided on 20.7.2006 to contend that writ petition is not maintainable against the Co- operative Society registered under the Punjab Co- operative Societies Act, 1961. Further reliance has been placed on S.S.Rana v. Registrar, Co-operative Societies and another, JT 2006(5) SC 186 to contend that the Co-operative Society is not a State within the meaning of Article 12 of the Constitution of India. At this stage, counsel for the parties seek an adjournment to assist this Court on the following question:- “Whether this Court can exercise jurisdiction under Article 226 of the Constitution for breach of principles of Civil Writ Petition No. 10444 of 1994 5 natural justice against any authority which is not a State within the meaning of Article 12 of the Constitution?” List on 13.7.2010. With the able assistance, rendered by learned counsel for the parties, I proceed to answer the question as formulated in the present writ petition. In General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. v. Satrughan Nishad and Others (2003)8 Supreme Court Cases 639, the Hon'ble Apex Court, considering the test laid in Ajay Hasia and Others v. Khalid Mujib Sehravardi and Others (1981)1 Supreme Court Cases 722 and Ramana Dayaram Shetty v. International Airport Authority of India and Others (1979)3 Supreme Court Cases 489, came to a conclusion that even though the Government of Utter Pradesh held 50% share in the Mill, the Board of Directors, consisted of majority of persons who are cane growers, the control of the State, in the functioning of the Mill, was much less deep and pervasive one. Though the Court recognized that even the Mill may not be the authority within the meaning of Article 12 of the Constitution of India, yet it is also not amenable to the jurisdiction under Article 226 of the Constitution of India. Relying upon a judgment rendered in VST Industries Limited v. VST Industries Workers' Union 2001(1) Supreme Court Cases 298, the Hon'ble Apex Court held that the mill which is engaged in the manufacture and sale of sugar, on the analogy of the above said case, cannot be termed as an Authority , which will fall under the jurisdiction of the High Court under Article 226 of the Civil Writ Petition No. 10444 of 1994 6 Constitution of India. Therefore, the primary test that a public function is discharged by an Authority, even though same is State, can be subjected to writ petition, if applied, in view of the observations made by the Hon'ble Apex Court in Kisan Sahkari Chini Mills's case (supra), will lead to an inescapable conclusion that the writ jurisdiction cannot be exercised by this Court against a Sugar Mill. At this stage, learned counsel for the petitioner has relied upon a judgment rendered in Prem Singh and Others v. State of Punjab and Others (Civil Writ petition No. 10806 of 2006, decided on 2.7.2006) to contend that where the Mill is under the winding up process, under the provisions of Section 59(2)(c), (d), (i) and (j) of the Punjab Co-operative Societies Act, 1961 there is an alternative remedy available to approach the Liquidator. A Division Bench in the said case observed as under:- “...After giving our thoughtful consideration to the contentions as raised we find no merit in the same. The petitioners are claiming the payment of due salary. The Mill where the petitioners are working is admittedly under the winding up process which is to be carried out in accordance with provisions as contained under Chapter-IX of the Act and Chapter- VIII of the Punjab Co-operative Societies Rules, 1963. Section 58 of the Act provides that where the Registrar has made an order for winding up of a Cooperative Society, he may appoint a Liquidator for the purpose. The Liquidator on his appointment is to Civil Writ Petition No. 10444 of 1994 7 take in his custody or under his control the property, effects and actionable claims to which the society is or appears to be entitled. Section 59 provides for powers of the Liquidator. The whole of the assets of a cooperative society in respect of which an order for winding up has been made are to vest in the Liquidator. The provisions of Section 59(2)(c), (d), (i) and (j) of the Act which are relevant for consideration of the matter read as under:- “59. Powers of Liquidator.- (1) xx xx (2) Such liquidator shall also have power, subject to the control of the Registrar - (a) to (b) xx xx xx xx xx (c) to investigate all claims against the co-operative society and subject to the provisions of this Act, to decide questions of priority arising between claimants; (d) to pay claims against the co- operative society, including interest up to the date of winding up according to their respective priorities, if any, in full or rateably, as the assets of the Civil Writ Petition No. 10444 of 1994 8 society may permit; the surplus, if any, remaining after payment of the claims being applied in payment of interest from the date of such order of winding up at a rate fixed by him but not exceeding the contract rate in any case; (e) to (h) xx xx xx xx (i) to make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging to have any claim, present or future, whereby the society may be rendered liable; (j) to make any compromise or arrangement with any person between who and the society there exists any dispute and to refer any such dispute to arbitration;” In terms of Section 59(3) of the Act when the affairs of the Cooperative Society have been wound up, the Liquidator is to make a report to the Registrar and deposit the records of the society in Civil Writ Petition No. 10444 of 1994 9 such place as the Registrar may direct. Therefore, the petitioners have a remedy before the Liquidator of the Mill when admittedly an order of winding up of the Mill has been passed and the Joint Registrar, Cooperative Societies, Jalandhar Division, Jalandhar has been appointed as Liquidator of the Mill vide order dated 7.3.2006 (Annexure-P.2)”. It will be pertinent to mention here that in Prem Singh's case (supra), the State Government held 88.56% of shareholding in the Mill. Learned counsel for the respondents has not disputed that the petitioner has got an alternative remedy, for redressal of his grievance. In view of the settled legal position, the Mill of the petitioner cannot be termed as a State within the meaning of Article 12 of the Constitution of India and the same is also not amenable to the writ jurisdiction under Article 226 thereof, as no public function is discharged by the Sugar Mill. Relying upon a judgment rendered in Goverdhan Lal v. The Registrar Coop. Societies, Punjab and Others (Civil Writ Petition No. 16459 of 1999, decided on 19.9.2007), it has been urged by learned counsel for the petitioner that for availing the alternative remedy, limitation should not stand in the way of the petitioner because he invoked the jurisdiction of the Court, which was not a proper forum. Hence, the present writ petition is disposed of with a liberty to the petitioner to avail an alternative remedy, available to him, in accordance with law, and in case, petitioner does so, within three months from the date of receipt of a certified copy of this order, in terms Civil Writ Petition No. 10444 of 1994 10 of Goverdhan Lal's case (supra) delay shall stand condoned. (Kanwaljit Singh Ahluwalia) Judge July 16, 2010 “DK”