Decided on September 21,1972



- (1.) This petition is by an employee of the Visakhapatnam District Co-operative Milk Supply Union (Society), the respondent herein, calling in question a notice issued by the president of the respondent Society, terminating the petitioner's services with one month's notice. The petitioner was initially appointed as an Analyst in the respondent Co-operative Society and assigned the duty of promoting the sale of milk and also, of testing the milk sent to the institutions and sold to the vendors.
(2.) The reason given for termination of his services is that the society was running at a loss, and that there was no warrant to continue the entire existing staff A preliminary objection to the maintainability of this writ petition is raised by Mr. Kondapi, the learned counsel for the Society on the ground that the relationship between the petitioner and the Co-operative Society is that of master and servant and the Co-operative Society is not a public body entrusted with any public duties and that a contract of employment cannot be enforced against such a Co-operative Society by way, of a petition under Article 226 of the Constitution of India. Mr. P.M. Gopala Rao, the learned counsel for the petitioner, however, contends that the respondent Co-operative Society is carrying on an industry in as much as it is collecting, bottling, distributing and selling milk and its relations with its employees are governed by the Industrial Law and is enjoined to observe the provisions of the Industrial Disputes Act He urges that under the impugned order the respondent Co-operative Society has contravened the express provisions of section 25-F (b) of the Industrial Disputes Act in as much as it failed to pay compensation as provided thereunder and also failed to serve a notice in the prescribed manner on the appropriate authority as laid down in Section 25-F (c) of the Industrial Disputes Act. According to him, in such cases the right which a workman possesses under the Industrial Law is a statutory right which could be enforced against the employer even if such employer is not tne State or a Public bodyin other words, even if he is a private individual or a voluntary society registered under the Co-operative Societies Act. In K. Venkatachalapathi v. The Anantapur District Co-operative Central Bank , my learned brother Chinnappa Reddy, J. by his judgment dated 6-8-1969 held that the Co-operative Central Bank, 'was not a person dr authority to whom a writ could be issued under Art. 226 of the Constitution"........The circumstance that the Bank,(Co-operative Bank) was constituted in accordance with the provisions of the Co-operative Societies Act cr that its affairs are regulated in accordance with the Act and rules and the bye-laws made under the Act, does not make the Bank a statutory body because it is not the creation of the statute. A society constituted under the Co-operative Societies Act is but a voluntary association of individuals who have come together and who are enabled to function together by reason of the Act. The statute while it regulates many of its affairs does not regulate the relations between the society and its employees
(3.) The status of the Society in so far as it concerns its relations with its employees is the same as any private individual. It is not the function of this Court under Art. 226 of the constitution to concern itself with the relations between individuals and their employers'. In coming to that conclusion, my learned brother referred to a decision of the Supreme Court in Praga Tools Corporation v. C.A. Imanuai & Others A Division Bench of this Court (to which, I was a party) in W.P. No. 1395 of 1967 by its judgment dated 1-4-1970 approved this view and dismissed the writ petition upholding a similar preliminary objection therein. It is, however, argued by Mr. P.M. Gopala Rao, the learned counsel for the petitioner that in view of the subsequent decision of the Supreme Court in : U.P.S.W. Corporation, Lucknow v. K. Tyagi the case of workmen governed by the Industrial Law stands on a different footing and in their case the contract of employment would be enforced in case of contravention of the provisions of Industrial Law. In the aforesaid case which arose out of a suit filed by the dismissed workmen of the U.P. State Warehousing Corporation, thier Lordships observed that, 'no declaration to enforce a contract of personal service will be normally granted. But there are certain well recognised exemptions to this rule and they are : To grant such a declaration in appropriate cases regarding (1) a public servant who has been dismissed from service in contravention of Art. 311. (2) Re-instatetement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute'. The petitioner in the instant case, does not come under the 1st or the third exception; the learned counsel for the petitioner too dees not claim that the petitioner comes under those two exceptions. His claim is that be comes under the 2nd exception pointed out by the Supreme Court. But in so contending it is ignored that what the Supreme Court laid down was that the reinstatement of a dismissed workman could be only under the Industrial Law by Labour or Industrial Tribunal and not in a a proceeding under Art. 226 of the Constitution In that decision their Lordships were not concerned with the question whether & dismissal of a worker in contravention of the Industrial Law could be questioned in proceedings under Art. 226 of the Constitution. Their Lordships were only dealing with the question whether a declaration that the dismissal was wrongful could be granted in a suit where a worker was dismissed and whether he could be re-instated under the provisions of Industrial Law by Labour or Industrial Tribunals. That was a case of a workman working under the statutory Corporation and he had complained of a breach of a mandatory obligation. Their Lordshipsa considering the facts of that case came to the conclusion that there was a violation of Regulation 16 (3) alleged by the worker, but still their Lordships held that such violation 'can only result in the order of dismissal being held to be wrongful, and, in consequence, making the appellant liable for damages. But the said order cannot be held to be one which has not terminated the service albelt wrongfully or which entitles the respondent to ignore it and ask for being treated as still in service'. That decision, is, therefore not an authority for the proposition that in proceedings under Article 226 of the Constitution of India, a writ, direction or declaration could be issued declaring the termination of services as wrongful or directing the re-instatement of a worker.;

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