J. R. CHOPRA, J. - (1.) BY this writ petition filed under Article 226 of the Constitution, the petitioner Bhagwan Dass has sought the quashing of the Order Annexure- 7 dated 25. 8. 1989, whereby the petitioner was asked to pay back the consequential benefits which had been paid to him on 13. 10. 1987 and it has been held that he is not entitled to any retrospective arrears benefits of his promotion.
(2.) THE case of the petitioner is that initially, he was appointed as Daftery in the respondent Bank (Railway Shramik Sahakari Bank Ltd. , Bikaner) and was promoted on the post of Lower Division Clerk in the year 1982. Later, certain departmental enquiries were initiated against him and certain punishments were imposed on him. It is alleged that a post of Upper Division Clerk fell vacant on 12. 12. 1983 and so, the petitioner, being senior most L. D. C. entitled for promotion made a representation on 20. 12. 1983 for his promotion on the post of U. D. C. As no action was taken on his representation for a sufficient time, the petitioner approached the Deputy Labour Commissioner, Bikaner but he too did not give any fruitful result to the petitioner. He than approached the joint Registrar, Co-operative Societies under Sec. 75 of the Rajasthan Co-operative Societies Act. During the pendency of those proceedings, the respondent Bank impressed upon the petitioner that if he withdraws his petition pending before the joint Registrar, Co-operative Societies, than he will be given all benefits. However. the petitioner withdrew the proceedings pending before the joint Registrar, Co-operative Societies and the respondent Bank granted promotion to the petitioner with effect from 12. 12. 1983 vide its Order dated 28. 9. 1987 on the basis of the enquiry report of the Sub-Committee. THE penalty imposed against the petitioner was set aside and he was paid all consequential benefits vide order Annexure-6. However, on 25. 8. 1989, an order came to be passed by the respondent Bank whereby the petitioner was asked to pay back the consequential benefits which had been paid to him on 13. 10. 1987 and it has been held that the petitioner is only entitled to benefits of his promotion with effect from 28. 9. 1987. It is alleged that the order Annexure 7 dated 25. 8. 1989 was passed in pursuance of an audit objection raised by the Audit Party. The petitioner sought copy of the Audit report vide Annexures 8 and 9. However, it is alleged that the respondent Bank has taken the stand that if the amount so paid to the petitioner is not deposited by the petitioner, then it will be deducted from his salary or it be recovered by coercive process. It is father alleged that in the past, the respondent Bank had granted promotion with retrospective effect to Shri Girdharilal, Padma Ram, Pramod Kumar and Kaushal Kumar Gupta etc. It was submitted that the work of Senior Supervisor was taken from the petitioner by the respondent Bank with effect from 12. 12. 1983 and the pay scale of Senior Supervisor was much higher than the pay scale of Upper Division Clerk and, therefore, no recovery can be ordered against the petitioner. The petitioner has, therefore, submitted that the order Annexure-7 is without jurisdiction as it has been passed without affording him an opportunity of hearing and without giving him any notice and so, it is liable to be quashed. The petitioner has submitted that he has been granted promotional benefits with retrospective effect, on the assurance of the respondent Bank on withdrawal of his proceedings pending before the Joint Registrar. Thus these retrospective promotional benefits were granted to him on the assurance given by the respondent Bank and therefore, the respondent Bank now cannot turn round and withdraw those benefits. It was submitted that earlier, the respondent Bank was registered with the Registrar under the Rajasthan Cooperative Societies Act, 1965 but now, the Parliament has enacted the Multi-State Co-operative Societies Act, 1984 and this new Act has come into force with effect from 16. 9. 1985. In pursuance of this New act of 1984, the respondent Bank has been registered. The petitioner has, therefore, prayed for quashing the Order Annexure-7 and for restraining the respondent Benefits from his salary and has claimed damages worth Rs. 10,000/ -. A reply to the writ petition has been filed on behalf of the respondent Bank. It was contended that it is a Railway Shramik Sahakari Bank, a co-operative society of the Railway employees, who are its subscribers. This co-operative society does not fulfil the requirement of the State and is not covered even by the expression 'other authorities' within the meaning of Art. 12 of the Constitution. In a similar writ petition, Division Bench of this Court has held that the respondent Bank is not a 'state' or ' Other authority' under Art. 12 of the Constitution and, therefore, the writ petition against the respondent -bank is not maintainable. A detailed reply has been given to all the allegations made by the petitioner and has been claimed that on the basis of the principle 'no work No Pay', the petitioner is not entitled to any back wages. A rejoinder was also filed on behalf of the petitioner. A comparative table of the relevant provisions of the Rajasthan Cooperative Societies Act and the Multi State Co-operative Societies Act, 1984 has been filed on behalf of the respondents.
(3.) I have heard Mr. S. L. Jain, the learned counsel appearing for the petitioner and Mr. D. S. Shishodia, the learned counsel for the respondent Bank. Mr. D. S. Shishodia, the learned counsel appearing for the respondent Bank has raised a preliminary objection that the respondent Bank being a cooperative society registered under the Rajasthan Cooperative Societies Act is not a 'state' or 'other authority' under Art. 12 of the Constitution and. therefore, it is not amenable to the writ jurisdiction. In support of his submissions, he has placed reliance on a decision of this Court in Heeralal vs. Railway Shramik Sahakari Bank (1 ). wherein a Division Bench of this Court has held: Having considered the provisions of the Rajasthan Cooperative Societies Act, 1965-SS. 8, 14,17,32,36,36, (1) (c), 44,45,63,65,68,70,118, 128, 131, 141, and 148 and the Rajasthan Cooperatives Societies Rules-Rule 41 and the Bye Laws 11,24,28, (4) and the tests laid down by the High Courts and the Supreme Court in various cases, it is held that the Bank is neither an instrumentality nor agency of the State nor it can be said to be an authority under the control of the Government as envisaged by Art. 12 of the Constitution of India. It was further held: "that even if the Society is a person or non-statutory body, but if it discharges statutory functions or performs statutory obligations or statutory powers conferred on them, then the writ petition is maintainable, otherwise not. It was also held that no statutory provisions, by law or regulation has been made by which power of superannuation was given. The age of superannuation has been fixed by the Board by its resolution, which cannot be said to be in the nature of bye-laws, rules and regulations. In this view of the matter, the writ was not maintainable against the Bank. Mr. D. S. Shishodia, the learned counsel appearing for the respondent Bank has submitted that the aforesaid Division Bench decision in Heeralal's case (supra) is binding on this court and therefore, this question cannot be re-agitated as it is barred by the principle of constructive res judicata. In this respect, he has placed reliance on a decision of their lordships of the Supreme Court in Keshoram and Co. V. Union of India (2), wherein their lordships of the Supreme Court have held that once a point is finally decided by the Court, it becomes binding and cannot be re-opened on the ground that some arguments had not been raised or considered by the Court. It was further held that once the validity of provision or notification is upheld by the Court, all grounds must be presumed to have been considered by the Court and fresh litigation challenging validity of the same provision on some additional grounds would be barred by the principle of res judicata. ;