- (1.) Petitioners, who are 18 in number, claim to be seasonal employees engaged in respondent Cane-growers' Co-operative Society. They have filed present writ petition for a direction upon the respondents to allow them to join as seasonal employees, at the start of new cane Crushing Season i.e. 1st October, 2015, and permit them to continue till the end of crushing season i.e. 15th July, 2016. By way of amendment, petitioners have also challenged order dated 10.3.2016, discontinuing their engagement during the midst of crushing season, by paying them off.
(2.) A preliminary objection with regard to maintainability of the present writ petition was raised, on behalf of the respondent cane society, relying upon a judgment delivered by this Court in Ram Karan vs. State of U.P. and others being Writ Petition No.27306 of 2014, and in Special Appeal No.779 of 2014, holding therein that a writ petition would not lie against co-operative cane society. This objection was opposed by the petitioners, relying upon Full Bench judgment of this Court in Vijay Bihari Srivastava vs. U.P. Postal Primary Co-operative Bank Ltd., 2003 1 UPLBEC 1. Finding substance in petitioners' contention, matter was referred to a Larger Bench, for answering following questions:- "1. Whether a writ petition under Article 226 of the Constitution of India would be maintainable against a Co-operative Cane Development Society, at the instance of its employee, for alleged breach of the provisions of the Uttar Pradesh Cane Co-operative Service Regulations, 1975, which governs his service conditions? 2. Whether the law laid down in Ram Karan Vs. State of U.P. and others and Srinarayan Gupta vs State of U.P lay down the correct law, in view of the law laid down by the Full Bench in Vijay Bihari Srivastava Vs. U.P. Postal Primary Co-operative Bank Ltd., 2003 1 UPLBEC 1? 3. Whether U.P. Cane Cooperative Service Regulations, 1975 is statuary in nature having been issued under Section 122 of the Act, or is merely in the nature of administrative instructions?"
(3.) A Bench of three Hon'ble Judges of this Court, presided over by Hon'ble the Chief Justice, has been pleased to answer the questions referred in following words:- "Having regard to this position, we would necessarily have to hold, as we do, that the broad principle of law which has been formulated in the judgment of the Division Bench in Shrinarayan Gupta would not be reflective of the correct position of law. Both the judgments of the Division Bench in Shrinarayan Gupta and of the learned Single Judge in Ram Karan would necessarily have to be read in a manner consistent with the view taken in the judgment of the Bench of five learned learned Judges of this Court in Vijay Bihari Srivastava's case. The Regulations which have been framed in exercise of the power conferred by Section 122 of the Act are traceable to a source of statutory power. These Regulations are framed by the Cane Commissioner as an authority to whom the functions of doing so have been delegated by the State Government under Section 122. Hence, the Regulations cannot be regarded merely as administrative instructions. The Regulations have been made in pursuance of the statutory power conferred by Section 122. We accordingly answer Questions (2) and (3) referred by the learned Single Judge in the aforesaid terms. Insofar as Question (1) is concerned, the issue would have to be resolved having due regard to the tests which have been laid down in the judgment of five Judges of this Court in Vijay Bihari Srivastava's case. Moreover, the issue of maintainability is distinct from whether the discretion should be exercised under Article 226 in a given case. Even if a petition is maintainable, the Court may, in the facts of a particular case, decline to entertain it under Article 226 as, for instance, where disputed questions of fact arise or an efficacious alternate remedy is available. Having regard to the fact that the writ petition is still pending, we leave it open to the learned Single Judge to arrive at a decision on the basis of the law as laid down in the judgment of the five Judges of this Court in Vijay Bihari Srivastava, as noted above. The reference is accordingly answered. The petition shall now be placed before the appropriate Bench according to roster for decision in light of this judgment.";