IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 8280 of 2010 Date of decision: 13.7. 2011 Rajinder Kumar Thakur …..Petitioner Versus The Managing Director HIIMFED and Anr. ……Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No1. For the petitioner: Mr. Prince Chauhan, Advocate. For the respondents : Mr. Vikas Rajput, Advocate. Deepak Gupta, J. (Oral) This petition has been filed by an unfortunate father, who has spent huge amount of money in the treatment of his son, but is running from pillar to post to get reimbursement of the said amount. 2. The petitioner is an employee of the H.P. State Co-operative Marketing and Consumer Federation (hereinafter referred to as HIMFED). His son was studying in MBA course at the Indian Institute of Personal Management at Pune. The petitioner had in fact raised loan 1 Whether the reporters of Local Papers may be allowed to see the judgment ? Yes. - 2 - to pay for the studies of his son from the department. Unfortunately, his son Sanjeev Thakur met with a road accident on 18.1.2007 and sustained serious injuries. His (Sanjeev Thakur’s) friends immediately rushed the injured, Sanjeev Thakur, to Krishna Hospital at Pune, which was nearest hospital from the site of accident. The son remained in a critical condition and was shifted to Pune Hospital, which again is a private hospital. On receiving intimation of the accident, the petitioner rushed to Pune. He incurred total expenditure of Rs.24,713/- at Krishna Hospital, where the first aid was provided and incurred expenditure of Rs.1,96,043/- at Pune Hospital and Research Centre, Pune and again another sum of Rs.15,863/-, when the son was readmitted there from 20.2.2007 to 24.2.2007. The petitioner submitted his total bills for reimbursement of the amount of Rs.2,62,202/-. His bills have been passed only for a sum of Rs.94,064/-on the ground that as per the rules only this amount is payable to the petitioner. 3. The petitioner claims that in view of the judgment rendered by the Hon’ble Apex Court in Sant Parkash vs. State of Haryana SLP (C) No.3896 of 2001, Suman Rakheja vs. State of - 3 - Haryana and another, 2006, SCC (L&S) 890 and Suresh Chand vs. Union of India and others (2004) 13 SCC 563, that at least 75% of his medical bills should have been reimbursed. 4. A preliminary objection has been raised by Sh. Vikas Rajput, appearing on behalf of the HIMFED that no writ petition is maintainable against the HIMFED, which is a proprietary body and in support his plea, he has relied upon a Division Bench judgment of this Court, rendered in C.K. Malhotra vs. H.P. State Co-operative Bank 1993 (2), Sim. L.C. 243, wherein the question as to whether the writ petition against the HIMFED was itself maintainable was also in consideration. The Division Bench held as follows:- “89. Similarly, the objects of the HIMFED are to arrange for the sale of Agricultural produce of the members, to advance loans to the members, to process raw material belonging to the members, to arrange for grading and packing of agricultural produce, to supply to members through local societies manure, seeds and implements etc.; to act as an agent of Cooperative Societies for recovery of production loans, to encourage thrift, self help and co-operation among its members, to act as an agent of the Government for the procurement or distribution of agricultural produce; to - 4 - arrange and supply consumer articles to its members, to purchase raw material, tools and appliances connected with the industries and for supplying it to its members etc. 90. These functions of the HIMFED leave no manner of doubt that the very purpose and directions is to facilitate the productive, marketing and other incidents of agricultural and other produce of its members, which may be the registered co- operative Societies (primary Societies) and in turn the individuals who constitute the members of the latter Societies. These functions are indeed far from being functions of public importance of being directly linked and related to sovereign Governmental functions. No doubt Article 48 of the Constitution says that the State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and shall in particular take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle, but the mere fact that an endeavour has to be made by the State Government to organize agriculture on modern and scientific lines alone will not make this to be a Governmental function when the aims and objects of the society are to be encouraged thrift, self help and co-operation amongst its members with a view to arrange for the sale of agricultural and other produce of its members; to process agricultural and other - 5 - raw material belonging to its members, to arrange for grading and packing of agricultural produce etc. 91. By having these aims and objects the HIMFED or the two Banks, who have in their aims and objects, the principle aim to promote the economic interests of their members in accordance with the cooperative principles and to help the Cooperative Societies in banking operations and also working as on banking agent of the Government cannot be termed as agencies created by the State for distributing the rural credit provided by it. For the two banks, normal banking business is to be conducted with the sole aim, as noticed above, which banking function cannot be said to be closely related to the Governmental functions. Reference at this stage may be made to the International Airport Authority’s case (supra), wherein Justice Bhagwati after pointing out that the distinction between Governmental and non-governmental function is no longer valid in the Welfare State and observed that (page 164) :- “The contract is rather between governmental activities which are private and private activities which are Governmental. (Mathew, J in Sukhdev v. Bhagatram at p. 1355 of AIR 1975 SC 1331). But the public nature of the function, if impregnated with governmental character of ‘tied or entwined with Government’ or fortified by some - 6 - 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.” 5. Shri Prince Chauhan learned counsel for the petitioner, submits that the decision of the Division Bench does not lay down as correct law as the Government has all pervasive control and majority shareholding in HIMFED. This Court is bound by the decision of the Division Bench and cannot sit over the findings of the Division Bench. Judicial discipline does not permit this Court to even comment upon the judgment of the Division Bench. Therefore, the contention of Shri Prince Chauhan is rejected and preliminary objection raised by Shri Vikas Rajput is upheld. 6. In view of the aforesaid discussion, it is held that this writ petition is not maintainable. 7. However, while holding that the writ petition is not maintainable the petitioner cannot be left remedy less. Section 72 provides that any dispute between the Society and its employer can be referred to the arbitration to the Registrar Co-operative Societies. - 7 - Therefore, this petition is disposed of with liberty reserved to the petitioner to file a claim before the Registrar Co-operative Societies in terms of Section 72 within two weeks from today. Advance copy of the claim petition can be given to respondent No.1. The Registrar shall, if necessary, record evidence on affidavit and shall decide this dispute within two months of entering into arbitration. The Registrar Co-operative Societies while deciding the dispute shall take into consideration not only the rules applicable to the HIMFED, but also the law laid down by the Hon’ble Apex Court in Suman Rakheja’s case (supra) and other judgments of this Court which may be annexed by the petitioner along with his claim. 8. I am sure that the Registrar while taking the decision will keep the human factors into mind specially the fact that the petitioner did not of his own choice/volition get his son admitted into a private hospital, but was forced to do so due to unfortunate circumstances. 9. It is made clear that if the Registrar gives any decision that can be challenged in - 8 - this Court by the aggrieved party. With these observations the writ petition is disposed of. Copy dasti. July 13, 2011 (Deepak Gupta), (rkv) Judge