Mohendra Nath Bora vs Chief Executive Officer, Assam Cadre Managment of Co-Op. Society and Others

J.N. Sarma, J.—This writ application has been filed against an order dated 12.8.87 passed by the Chief Executive Ofificer, removing the Petitioner from service. That order is annexed as Annexure-D to the vwit application. That is quoted below:

ORDER

Sri Mohendra Nath Bora, Cadre Secretary "U/S" Lateripar S.S. Ltd., removed from -service with immediate effect.

The Petitioner herein was the employee of the Assam Cadre Management of Co-Op. Society Ltd. The Petitioner submitted his show cause vide Annexure-B to the writ application wherein he denied that any such money is due to the Co-Operative Society. Thereafter without any enquiry, the Petitioner was removed from service by the order at Annexure-D quoted above. The Petitioner was put under suspension on 24.8.86, after the removal from service on 3.2.88. Vide Annexure-A to the writ application a notice was issued to him stating that the arriount of Rs. 59,055.73 paise only is due to the society from the Petitioner. A reply was filed by the Petitioner. We are not concerned with this as that is not the question before this Court. Be that as it may, against the order of dismissal quoted above, an appeal/application for review was filed through the Sub-Registrar, Co-Operative Societies, Nagaon. That is Aniiexure-E to the writ application. In the body of this appeal, the petition which was forwarded by the Sub-Registrar, Co-Operative Societies on 2.5.88 it was categorically stated by the Sub-Registrar that the order of removal from service is absolutely Without authority of law. There was no enquiry and the authority adopted discriminatory attitude. He himself made an enquiry and on enquiry it was found that this removal of the Petitioner was made without going to bottom of the alleged affair with the sinister motive to avail the wrongful gain with vested interest of group and also to cloud the wrongful loss of the society. Inspite of that, nothing has been done. Hence, this writ application.

I have heard Mr. D. Baruah, learned Advocate for the Petitioner and none appears for the Respondent No. 1 inspite of service of notice. Mr. Chutia, Learned Govt. Advocate appears for the Respondents No. 2, 3 and 4. Mr. Baruah. fairly brings to my notice a decision of this Court reported in 1993 (2) GUT 51 (Sahabuddin Choudhury v. State of Assam and Ors.) wherein the Full Bench of this Court held that this particular Co-Operative Society, Assam Cadre Management is not the authority or State or instrumentality under Article 12. He submits that the view of the Full Bench, it cannot be deemed to be good law as on today in view of the subsequent decisions of the Apex Court and further he submits that if it. is not taken as instrumentality under Article 12 of the Constitution, this Court in appropriate case can issue a Mandamus to wipe out injustice whenever and wherever it is found. In this connection Sri Baruah draws my attention to the following decisions:

i) Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], etc. wherein in paragraph 59 the Supreme Court pointed out as follows:

The right of judicial review is now a basic structure of the Constitution by catena of decisions of this Court starting from Indira Gandhi v. Raj Narayan AIR 1975 SC 2299 and Bommai''s case (AIR 1994 SCW 2946).

ii) AIR 1998 SC 295 (K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr.) wherein the Supreme Court in paragraph 4 pointed out that when the element of public interest is obtained and the institution is catering to that element, the employees of that institutions are also entitled to avail the remedy provided under Article 226, jurisdiction proper of the writ Court under Article 226 is very wide.

iii) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, wherein the Supreme Court in paragraph 21 has pointed out as follows:

Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute, Commending on the development of this law, professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by Charter, common law, custom or even contract." (Judicial Review of Administrative Act, 4th Ed. P. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is fouiid. Technicalities should not come in the way of granting that relief under Article 226.

The Supreme Court pointed out that mandamus is a very wide remedy which must be easily available to reach injustice whenever it is found.

iv) Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, wherein the Supreme Court pointed out that even if a society registered under the Societies Registration Act or in any other similar situation may come withintiie sweep of Article 226 of the Constitution of India.

That being the position, I hold that this Society i.e., Assam Cadre Management Co-operative Society and others is amendable to writ jurisdiction and once that is found that there is no scope from the conclusion that this order of removal from the service of the Petitioner is absolutely without authority of law. In the case before the Full Bench the enquiry was held and the learned Single Judge found that there was ho illegality in the enquiry and/or the dismissal order and the only question which was decided by the Full Bench was that whether the Co-operative society is an instnunentality of the State within the meaning of Article 12 of the Constitution of India, sufficient niaterials also were not placed in that case before the Court to show that the society is dependant wiiolly or partially on the financial assistance of the Govt. That being the position, this particular case stands on different footing and as I find that there is injustice in the order of removal of the Petitioner and I quash that order and direct the authority to take back the Petitioner in service. As the Petitioner is not working for this long period of 12 years justice does not demand that he should be given the back wages. He shall be taken back in service but he shall not be entitled to back wages. The Petitioner shall be taken back in service within one month from the date of receiprt of this order.