- (1.) WE have heard Shri W.H. Khan, Senior Advocate assisted by Shri Ved Byas Mishra for U.P. Cooperative Chini MIll Sangh Limited through its Managing Director -the Respondent -Appellant. No one appears for Respondents in the revised call.
(2.) THE Chini Mill Majdoor Sangh Aurai, District Sant Ravi Das Nagar through its Secretary (Writ Petition No. 52040 of 2005) had prayed for directions to the Respondents to pay the retaining allowances/wages for the period of 2001 -2002 and 2004 -2005, bonus since 1999 to 2005; gratuity and other allowances, which are due for payment to its members. Learned Single Judge hearing the writ petition found that the dues are admitted. The only reason for not paying the amount was that the Kashi Sahkari Chini Mill Ltd., Aurai, was running into losses. It had requested the UP Cooperative Chini Mill Sangh Ltd. for making the payment. Learned Single Judge held that it was for the Federation or the Sugar Mill to take adequate steps to ensure payment of the due wages to its employees and denial of legitimate dues, including the wages and allowances to its workers, cannot be justified in law. A writ of mandamus was thus issued to Respondents 2, 3 and 4 including Sugar Mill and the Sangh to pay the amount within three months. The affidavits have been exchanged. Shri W.H. Khan would submit that the entire amount of about Rs. 13 crores was paid on the request of the Petitioner, by the State Government and that there are no dues payable to the members of Respondent No. 1, upto August, 2010. He, however, submits that the Special Appeal should be decided on its merit as the judgment may be interpreted to fasten the liability in future on the Sangh, which is apex body of the cooperative society with an advisory role. It is submitted that though the question was not raised and decided, the direction issued by learned Single Judge may be treated as precedent in future. He has relied upon paragraph -8 of the judgment in General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. v. Satrughan Nishad and Ors. : (2003) 8 SCC 639 in which the Supreme Court held as follows: 8. From the decisions referred to above, it would be clear that the form in which the body is constituted, namely, whether it is a society or co -operative society or a company, is not decisive. The real status of the body with respect to the control of Government would have to be looked into. The various tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts/situations, different factors may be found to be overwhelming and indicating that the body is an authority under Article of the Constitution. In this context, Bye -Laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter -affidavit filed on behalf of the State and it was averred that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting Respondents in the counter -affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non -traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting Respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has nowhere been stated that the State used to meet any expenditure of the Mill much -less almost the entire one, but, as a matter of fact, it operates on the basis of self -generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye -Laws of the Mill would show that its membership is open to cane growers, other Societies, Gram Sabha, State Government, etc. and under Bye -Law 52, a Committee of Management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co -operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrator. Thus, the ratio of the nominees of State Government in the Committee is only 1/3rd and the management of the Committee is dominated by 2/3rd non -Government members. Under the Bye -Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much -less deep and pervasive one. The role of the Federation, which is the apex body and whose ex -officio Chairman -cum -Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mill, as such the same being neither instrumentality nor agency of Government cannot be said to be an authority and, therefore, it is not State within the meaning of Article of the Constitution.
(3.) SHRI W.H. Khan has also relied upon the judgment of this Court in Kisan Sahkari Chini Mills Ltd. and Anr. v. Rakesh Chandra Ganwar and Ors. : (2004) 3 UPLBEC 2447 in which this Court held that a Cooperative Society manufacturing sugar is not amenable to writ petition. It does not come within the ambit of Article .;