- (1.) The applicant-petitioner seeks review of the order dated 2.3.2006 passed by this Court. It is submitted that the writ petition filed by the petitioner- Union has been dismissed on the grounds that : (i) the writ petition had earlier also been dismissed in the absence of the counsel for the petitioner and (ii) no writ petition is maintainable against respondent No. 4 which is a primary cooperative society.
(2.) Learned counsel for the petitioner contends that absence of the counsel for the petitioner at the time when the case was taken up for hearing on 2.3.2006 is regretted and that in any case the petitioner-Union should not suffer for the absence of the counsel. With regard to the maintainability of the writ petition it is submitted that the Jind Central Cooperative Bank Limited (respondent No. 3) ('Bank' - for short) was not impleaded as a party by the petitioner as no action of the Bank was under challenge. The Bank in fact sought its impleadment by moving a civil miscellaneous application which was allowed on the day the writ petition was dismissed. It is submitted that the petitioner-Union in fact had assailed the action of the Deputy Registrar, Cooperative Societies, Rohtak (respondent No. 3). He had passed the impugned order dated 13.10.1993 (Annexure P-14) which affected the pay scale of the members of the petitioner-Union. The judgment of the Supreme Court in the case of General Manager, Kisan Sahkari Chini Mills Limited, Sultanpur, U.P. v. Satrughan Nishad and others, 2003 8 JT 235 relied upon by this Court while dismissing the writ petition, it is submitted, would not apply as in that case the writ petitioners therein had challenged their termination from service by the Sugar Mill. The Supreme Court in the circumstances held the writ petition in the said case to be not maintainable against the Sugar Mill because the State had no control in the functioning of the Mill much less deep and pervasive control. In the present case, it is the order of the Deputy Registrar, Cooperative Societies, Rohtak (respondent No. 3) which is subject matter of challenge and not that of the Bank which is a primary cooperative society. It is also submitted that in terms of Rule 13 of the Primary Cooperative Credit and Service Societies Staff Service Rules, 1992 ('Rules' - for short), it is inter alia provided that in the event of some of the employees already drawing more than the prescribed fixed emoluments, they would continue to draw their existing emoluments till their individual cases were reviewed by a committee as mentioned in Rule 13. Therefore, in terms of resolution dated 7.12.1991 and other similar resolutions of different primary cooperative societies, District Jind, employees of the petitioner-Union who were already drawing higher scales than the consolidated salary drawn by them were to be allowed to continue to draw the same till their individual cases were examined by a committee. It is also submitted that after the dismissal of writ petition by this Court, the petitioner filed Special Leave to Appeal (Civil) Petition No. 11898 of 2006 in the Supreme Court of India which was dismissed as withdrawn on 18.9.2006. In short, in is primarily contended that the writ petition against the order dated 13.10.1993 (Annexure P-14) impugned in the writ petition, is maintainable. Besides, the members of the petitioner-Union are entitled for protection of their existing emoluments which they were already drawing on the date of promulgation of the Rules on 16.11.1992.
(3.) We have given our thoughtful consideration to the contentions of the learned counsel appearing for the applicant-petitioner. The writ petition filed by the petitioner-Union was by order dated 2.3.2006 passed by this Court held to be not maintainable and was accordingly dismissed. The learned counsel for the petitioner has, however, submitted that the said order is liable to be reviewed as the writ petition was in fact maintainable. It was the order dated 13.10.1993 (Annexure P-14) of the Deputy Registrar, Cooperative Societies, Rohtak (respondent No. 3) which was under challenge and not that of the respondent No. 4-Bank, which is a primary cooperative society. In the order passed by this Court on 2.3.2006, the review of which is sought, reliance was placed on the judgment of the Supreme Court in General Manager, Kisan Sahkari Chini Mills Limited Sultanpur U.P. v. Satrughan Nishad and others . It was held therein that the Sugar Mill in the said case was not an agency or instrumentality of the State and was not engaged in any activity involving any public function. The service of surplus workmen of the Sugar Mill in the said case were terminated which was assailed by way of writ petition. The State Government had 50% share in the co-operative society of the said case. Two- third strength of the Managing Committee of the Society comprised of non- Government members and one-third comprised of Government nominees. Due to deteriorating financial conditions of the Sugar Mill in the said case, the services of some surplus workmen were terminated without paying any compensation and without any notice. The writ petition by the affected persons seeking various reliefs was allowed by the High Court and a direction was issued to regularize the services of the petitioners therein in a phased manner. The Hon'ble Supreme Court allowing the appeals against the order of the High Court held that the Sugar Mills was not an agency or instrumentality of the State and was not engaged in any activity involving any public function. The writ jurisdiction of the High Court could, therefore, not have been exercised. It was observed by the Supreme Court that the Mill therein was engaged in the manufacture and sale of sugar which would not involve any public function and there was no difficulty in holding that the jurisdiction of the High Court under Article 226 of the Constitution could not have been invoked. In the present case too the Bank (respondent No. 4) is a primary co- operative society and is not a 'State' within the meaning of and for the purpose of Article 12 of the Constitution of India. It is neither an agency nor instrumentality of the State and is not engaged in any activity involving any public function. As regards the contention that the order of the Deputy Registrar has been assailed, the case of S.S. Rana v. Registrar, Cooperative Societies and another, 2006 5 JT 186 may be noticed. The petitioner therein was working as a Branch Manager in the Kangra Central Cooperative Bank Limited. A departmental proceeding was initiated under the statutory rules applicable to the employees of the said Bank. On being found guilty of the charges levelled against him, his services were terminated. The delinquent employee therein preferred an appeal against the order terminating his services before an Administrator who had been appointed to manage the affairs of the Cooperative Bank therein. The appeal was dismissed by the Board of Directors who had by then replaced the Administrator. The delinquent employee thereafter filed a writ petition before the High Court of Himachal Pradesh praying for quashing the order of termination as also the appellate order. It was held by the Supreme Court that the functions of the cooperative society in the said case are regulated by the provisions of the Himachal Pradesh Co-operative Societies Act except as provided in the bye-laws. The State has no say in the functioning of the society. Besides, the terms and conditions of an officer of a Cooperative Society several other factors are required to be considered, namely (1) how the society was created; (2) whether it enjoys any monopoly character; (3) do the functions of the society partake to statutory functions or public functions and (4) can it be characterized as a public authority. It was held that the Cooperative Society in the said case did not answer to any of the above mentioned four tests. Moreover, in the case of a non-statutory society the control would mean that the same satisfies the test laid down in Ajay Hasia v. Khalid Mujib Sehravardi, 1981 AIR(SC) 487. It was held that it is well settled that general regulations under an Act like Companies Act or the Cooperative Societies Act would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the Society. The State or statutory authorities would have nothing to do with its day-to- day functions. In fact, the decision of the Supreme Court in Gayatri De v. Mousumi Cooperative Housing Society Limited and others, 2004 3 RCR(Civ) 204 wherein the writ petition was held to be maintainable against an order passed by a Special Officer in the discharge of his statutory functions was also noticed. It was, however, observed that the Cooperative Bank in the said case would not be a State within the meaning of Article 12 of the Constitution. In the present case also, the Bank, which is a primary cooperative society, has not been created under any statute. The rules and bye-laws enacted under the Punjab Cooperative Societies Act would not render the affairs of the primary cooperative society subject to control of the State. These are for the purpose of ensuring proper functioning of the Cooperative Society. The State or the statutory authority do not having anything to do with its day-to-day functioning. Therefore, the writ petition would not be maintainable.;