Decided on February 28,1974

P.A. GEORGE Appellant


- (1.) Petitioner's service as Secretary of the 1st respondent cooperative society was terminated as per Ext. P-1 proceedings with effect from 1st January 1974. The decision to terminate petitioner's service was taken by the committee of the society at its meeting held on 29th November 1973. Ext. P-1 dated 1st December 1973 was issued in pursuance of the aforesaid decision. Ext. P-1 states that the termination of service is under S.80 of the Kerala Cooperative Societies Act, 1969 (for brevity the Act) and R.183(2) of the Kerala Cooperative Societies Rules, 1969 (for short, the Rules). Petitioner moves for certiorari quashing Ext. P-1. The writ petition was thereafter amended whereby the petitioner added a prayer to quash Ext. R-3 proceedings issued by the additional 2nd respondent, the Registrar of Cooperative Societies. By Ext. R-3, the 2nd respondent informed the General Manager, Trivandrum District Cooperative Bank Ltd. that 'the saving clause (rule 200) protects only emoluments and hence the age of retirement has to be fixed in accordance with clause (2) of R.183 of the Rules'. It was copied to all Deputy Registrars on general duty and to the president of the 1st respondent society. Ext. R-3 was on 10th December 1973, i. e., after Ext. P-1 was issued, and therefore the contention raised on behalf of the petitioner that Ext. P-1 was inspired by Ext. R-3 is unsustainable. In view of this I need not in this writ petition consider the competency of the 2nd respondent to issue Ext. R.-3, and its legality. I therefore confine the discussion to Ext. P-1.
(2.) The petitioner's case is that he is entitled, under the bye laws adopted by the 1st respondent society, to continue until 60 years of age, and that on that basis, his services could not be terminated before 15th June 1975. He relies on bye law V (c) for this purpose. The contention of the 1st respondent society is that this bye law does not confer any enforceable legal right on the petitioner and that the bye law itself has been superseded by R.183(2) of the Rules. It is also contended by the society that no certiorari could be issued against it.
(3.) Very elaborate and interesting arguments were raised before me on the question whether a cooperative society is amenable to the writ jurisdiction of this court. Mr. M. P. R. Nair, the learned counsel for the petitioner referred to catena of decisions starting from S, R. Tewari v. District Board, Agra AIR 1964 SC 1680 and ending with Vaish College (Society) v. Lakshmi Narain AIR 1974 Allahabad 1 (F.B.). In the former decision the Supreme Court said: "The courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do." It was argued that the first condition laid down in Tewari's case AIR 1964 SC 1680, viz., that the body shall be a 'statutory body' has been watered down as is seen from the several decisions discussed in the Vaish College (Society) Cast AIR 1974 Allahabad 1 (F.B.). Many of those decisions were also discussed at the bar. In Vaish College (Society) Case AIR 1974 Allahabad 1 (F.B.) the Allahabad High Court said: "In short it can be stated that there may be bodies which are statutory and which are non statutory. Statutory bodies may perform statutory functions and may perform non statutory functions. When statutory bodies perform statutory functions their acts will be amenable to judicial review by the Court. When statutory bodies perform non statutory functions their acts may not be amenable to judicial review by the Court. When non statutory bodies perform non statutory functions, their acts will not be subject to judicial review by the Court but when they perform statutory functions there is no valid reason why it not be held that their actions will be amenable to judicial review by the Court in as much as non statutory bodies when performing statutory functions will be nothing else than mere instrumentalities acting under the statute which imposes duties upon it affecting the rights of third persons and parties." Mr. Balagangadhara Menon on behalf of the society brought to my notice the decision of Velu Pillai, J. in Arumugham v. Urban Bank 1960 KLT 727 wherein the learned Judge drew in respect of the writ jurisdiction, a distinction between 'a body, which is the creature of statute, such as the University under the Kerala University Act', and 'a body which is registered in pursuance of a statute or is recognised by it'. The learned counsel also referred me to Praga Tools Corporation v. C. V. Imanual AIR 1969 SC 1306 , S. L. Agarwal v. Hindustan Steel Ltd. AIR 1970 S. C. 1150, Vidya Ram v. S. J. N. College AIR 1972 SC 1450 and some other decisions. In view of the importance of the question I would have referred the case for decision by a Division Bench, but for the fact that in my view this original petition has to fail for the reason that the second condition laid down in Tewari's case AIR 1964 SC 1680 is not satisfied. I make it clear that I have not decided and am not deciding as to whether, in order to attract the writ jurisdiction of this Court the body against whom the writ goes is to be a statutory body in the sense that it is to be a creature of statute and not merely a body registered under or recognised by the statute. For the purpose of this case I am assuming (without deciding) that the first respondent is a statutory body against whom a writ may be issued.;

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