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Judgment
Aftab Alam, J.—The only relief claimed in this application is a writ in the nature of certiorari quashing the office order, dated 12.12.1991 issued by the Director (Education), National Co-operative Union of India whereby the petitioner''s services as Lady Mobiliser were terminated with immediate effect. The impugned order, a photo copy whereof is at Annexure 11 to the writ petition assigns two reasons for the termination of service; one, that the selection of the petitioner was based on an improper procedure and two, that her contract employment came to an end on 26.11.1991 on the expiry of the one year period fixed under the contract. The allegation relating to improper procedure of selection has, however, been completely given up before this Court and the termination of service is sought to be justified only on the plea of the contract having conic to an end by efflux of time. The petitioner was an employee of the National Co-operative Union of India (hereinafter referred to as ''the Co-operative Union''). I shall have occasion to examine the nature and character of the Co-operative Union in some detail later on in this judgment. At this stage, while narrating the bare facts it is suffice to note that the Co-operative Union was in need of Lady Mobilizers in several States including Bihar for one of the projects undertaken by it, namely, Co-operative Education Field Project. Having failed to get on deputation, any suitable persons to work as Lady Mobilizers, the Co-operative Union made a request (vide letters dated 23.7.1990 and 10.8.1990; Annexure 1) to the Bihar State Co-operative Federation Ltd. to take steps for selection of suitable candidates to be directly recruited to the post of Lady Mobilizer on ''purely temporary and contractual basis for the period of one year to begin with''. Following the request made by the Co-operative Union, the Bihar Federation issued an advertisement, dated 27.8.1990 inviting applications on behalf of the Co- operative Union for appointment to the post of Lady Mobilizer on contractual basis. By letter dated 18.9.1990 (copy at Annexure 3), the Bihar Federation appears to have forwarded two applications, including that of the petitioner, with the recommendations made by it and finally the appointment letter was issued to the petitioner vide memorandum dated 9.11.1990, a copy whereof has been enclosed with the writ petition as Annexure 4. The memorandum offered the post of Lady Mobilizer, NCUI Co-operative Education Field Project, Patna to the petitioner, ''on contractual basis for a period of one year to begin with''. Of the various terms and conditions of the appointment those contained at serials 2 and 4 are reproduced below :
(1) ......
(2) Her appointment is on contractual basis for a period of one year to begin with. The post is purely temporary and terminable without any notice.
(3) .....
(4) Her appointment is specially for the post being offered to her and in case of winding up of the project, her services shall stand terminated.
(5) ........
(6)........
Following the appointment, the petitioner joined her services on 27.11.1990. She was sent to Hyderabad for a ten days training course (vide Annexures 6 and 7). It is also stated in the writ petition that the petitioner was asked to give her option for the pension scheme introduced for the staff of the Co-operative Union, including the Project Personnel and she duly gave her option vide her letter dated 20.12.1990 (copy at Annexure 10).
Commencing from 27.11.1990, the period of one year came to an end on 26.11.1991. However, as noted above, the impugned order of termination of service was issued on 12.12.1991.
Dr. S.N. Jha, Learned Counsel appearing on behalf of the petitioner first sought to attack the very premise that the petitioner''s appointment was a contract appointment for one year. He pointed out that the memorandum of appointment did not say that the appointment was for a definite period of one year but said that it was on contractual basis for a period of one year to begin with. According to him, it was implicit therein that the appointment was likely to be extended indefinitely. Coupled with this, he relied upon the circumstance that the services of the petitioner were not terminated on 26.11.1991 but were allowed to extend beyond that date. In this regard he also relied upon two communications dated 25.11.1991 and 28.11.1991 addressed to the petitioner; copies of the aforesaid two communications have been brought on record as Annexures 20 and 21 along with petitioner''s reply to the counter affidavit. The communication dated 25.11.1991 contained comments on the petitioner''s activities for the month of October, 1991 and the communication dated 28.11.1991 was on the subject of the four programmes for the months of November and December 1991 and advised the petitioner to hold atleast two meetings every day in course of her tour programme. Dr. Jha contended that it was evident from these two letters that till 28.11.1991 (i.e., two days after the expiry of the one year period) the authorities did not have in mind the termination of service of the petitioner and while issuing the impugned order on 12.12.1991 the pretext of one year contract was cited only as an afterthought.
I am unable to attach much significance to the circumstances relied upon by Dr. Jha. Of the two letters, the one dated 25.11.1991 contains comment on the petitioner''s activities for the month, of October, 1991 when she was admittedly in employment. The other letter dated 28.11.1991 is in the nature of a general circular which would have been sent to all Mobilizers. It was simply an oversight that it was also addressed to the petitioner as such circulars and general instructions were being addressed to her during past months. At best it was a very minor lapse in the functioning of the office and on the basis of the two letters, I am unable to hold that her appointment vide memorandum dated 9.11.1990 was not in the nature of contract appointment for one year. Also revealing in this regard is the statement made in the rejoinder affidavit on behalf of the respondents that the petitioner illegally and without any authority continued to work for a few days beyond the period specified in the terms of contract with the connivance of the than Project Officer, Shri N. P. Sinha, who is her husband.
Dr. Jha then submitted that even assuming that the petitioner''s appointment was under a contract for one year, the termination of her service without notice or an opportunity of being heard did not merely infringe the principles of natural justice but also offended the judicial notion of fair play. Dr. Jha sought to develop his submissions based on the denial of notice/an opportunity to be heard in several ways. He argued that the principles of natural justice and the idea of fair play were distinctly separate and independent judicial concepts (reliance placed upon 1990 B.R.L.J. 176 S.C.) and even in cases where the principles of natural justice may not have any application, a proper hearing was still the requirement of ''fair play''. He also cited a very brief para (no. 112) from Charan Lal Sahu Vs. Union of India, :
All civilized countries accepts the right to be heard as part of the due process of law where questions, affecting their rights, privileges or claims are considered or adjudicated.
Dr. Jha next contended that even assuming that the petitioner had no enforcible right after the expiry of her contract of service for one year, still a prior hearing was required by the principles of natural justice inasmuch as the impugned termination order would deprive her of the advantages and benefits of employment. Reliance was placed on the case of H.L. Trehan and Others Vs. Union of India (UOI) and Others, .
I am unimpressed by any of these submissions. The rights and obligations of the parties had crystalised in the memorandum of appointment which stipulated that the appointment was for a period of one year. Hence, it was well known to the petitioner what was offered to her and that her appointment, without anything else, would automatically come to an end after one year from the date of her joining. I do not see any application of the principles of natural justice and I am also of the view that the respondent Co-operative Union has not acted either in an unfair or an unreasonable manner.
Dr. Jha then submitted that the impugned termination of service was in violation of the provisions contained in section 25Fof the Industrial Disputes Act, 1947 as the petitioner''s services were terminated without fulfilling the mandatory pre-conditions as envisaged in that section. When it was brought to his notice that termination of service on the expiry of contract has been specifically excluded from the definition of retrenchment as contained in section 2 (oo) of the Industrial Disputes Act. Dr. Jha fairly stated that he would not press this point.
He next contended that the respondents had acted arbitrarily and discriminately in singling out the petitioner for termination of service on the plea that the contract of her appointment was over. He submitted that on reading together the terms at serial nos. 2 and 4 of the memorandum of appointment, it was apparent that the post of Mobilizer was available as long as the project was in operation. He also stated that the project in question, namely, Co-operative Education Field Project had been undertaken by the Co-operative Union in several states including Bihar and a number of Mobilizer/Lady Mobilizers were appointed on exactly the same terms and conditions as the petitioner. In the State of Bihar itself another Lady Mobilizer was appointed for Ranchi on the same terms and conditions as the petitioner. It was also asserted that among several Mobilizers/Field Mobilizers appointed for the same project in similar manner and exactly on the same terms and conditions it was the petitioner alone whose services were terminated. It was also stated in the writ petition that the project in question was still under way and a Lady Mobilizer was still required for Patna and steps had already been taken to make a fresh appointment to the post. Dr. Jha also referred to some allegations of malafide made in the writ petition to the effect that the petitioner had been removed to make room for one Smt. Kanti Tapya in whose appointment respondent no. 2 was interested. Dr. Jha also pointed out that the respondents in their affidavit had persistently refused to disclose the reason even to the Court for singling out the petitioner for terminating her services. Relying upon the case of the The Manager, Government Branch Press and Another Vs. D.B. Belliappa, , Dr. Jha argued that the respondents were bound to disclose the reason to the Court for terminating the services of the petitioner alone amongst several similarly situated persons and in view of their refusal to do so, their action in terminating the services of the petitioner must be characterised as arbitrary and discriminatory.
I am prima facie attracted by this submission and should have felf pursuaded to examine it in more detail but for the fact that the main hurdle before the petitioner relates to the maintainability of this application. I may at this stage record that I have merely enumerated the submissions advanced by Dr. Jha on the merits of the case and have not examined those submissions in greater detail on purpose as I am of the view that this application has to fail on the question of maintainability.
As regards the maintainability of this application, it is to be noted that the two respondents are the National Co-operative Union of India and one of its officials. One of the preliminary objections raised on behalf of the respondents is that the Co-operative Union is not a State or an instrumentality thereof and is, thus, not subject to the writ jurisdiction of this Court.
The pleadings on this point have come in stages. The writ petition was initially filed taking it for granted that the respondents were covered by the definition of State within the meaning of Article 12 of the Constitution. It was stated in para 4 of the writ petition that the Co-operative Union was a Society registered with the Central Registrar Cooperative Societies under the Multi-State Co-operative Societies Act, 1984 and Rules, 1985 and ''as such was a State within the definition of the Article of the Constitution''. This statement was simply begging the question. In paras 24 and 2 (vii) while making statements in a different context, it was also stated that the project in question undertaken by the Cooperative Union was 100% financed by the Ministry of Agriculture and Co-operation, Government of India. It is to be noted here that the statement was not that the entire finance of the Co-operative Union came from the Government of India but only that the finance relating to the project in question were furnished by the Government of India. Nothing more than this was stated in the writ petition on this aspect of the matter. The denial in the counter affidavit was as bald as the assertions made in the writ petition. In para 3 (a) of the counter affidavit, it was stated that the Co-operative Union was neither a State nor authority nor instrumentality or agency within the meaning of Article 12 of the Constitution. It was further stated that the functions of the Society were independent and were in no way connected with the Government functions or with the business of the Government. It was further stated in para 7 of the counter affidavit that it was correct to say that the Co-operative Union was registered with the Central Registrar under the Multi-State Co-operative Society Act but it was neither a State nor authority or instrumentality within the meaning of Article 12 of the Constitution. In para 27, it was stated that though the project in question was financed by the Central Government, its management and administration was in the hands of the Co-operative Union which was obliged to act in accordance with its own rules and regulations. It was also said that on matters of appointment and termination the Cooperative Union was the sole authority to take a decision and the Government had no role to play in these matters.
In her reply to the counter affidavit, the petitioner contended that the entire activities of the Co-operative Union were guided and controlled by different directions, orders and policy decisions of the Government of Bihar (sic) and that the Co-operative Union was a corporate body founded by the Central Government. In support of this contention four documents have been brought on record marked as Annexures 16 to 19. Annexure 16 is an office order dated 15.3.88 issued for general information by the Joint Director, Personnel that following the directions of the Agriculture Ministry of the Central Government it was being made known that the employees of the Co-operative Union also came within the ambit of the Central Vigilance Commission. Annexure 17 is a communication dated 6.11.87 issued by the Deputy Director (Finance) to all the Project Officers. This makes a reference to a letter from the Finance Advisor, Department of Agriculture & Co-operative, Ministry of Agriculture, Government of India (copy of which is annexure 18) and states that the Government had decided to minimise expenditure on account of drought and necessary instruction had been issued to all departments. The letter accordingly advised the Project Officers to comply with the above decision of the Government. Annexure 19 is another communication dated 29.10.1982 from the Ministry of Agriculture giving sanction for creation of 15 part time posts of Typist-cum-Clerk and 15 part time posts of Peons on consolidated wages for the Central Sector Scheme for Co-operative Education and Training & Special Scheme for Intensification of Cooperative Education. The Co-operative Union in its turn communicated the sanction for the posts to all Project Officers.
I am of the opinion that these documents do not cut much ice in support of the plea that the Co-operative Union functioned under the administrative control of the Central Government. This will become more apparent in view of the assertions made in the rejoinder affidavit filed on behalf of the respondents. It is stated in the rejoinder that the Co-operative Union is not 100% funded by the Government and the fact is that the fund of the Co-operative Union is very largely self generated. It is further pointed out that Annexure 19 related only to posts in some projects undertaken by the Co-operative Union with the aid of the Government, otherwise the posts of the Cooperative Union were created by its own governing council. It is further denied that the Co-operative Union was guided and controlled by the policy and decision of the Government. It was stated that the Co-operative Union functioned under its own bye-laws through the Governing Council and Executive Committee constituted under the bye-laws. The functions of the Co-operative Union were independent and were in no way connected with the Governmental function or with the business of the Government.
What is of ulmost importance in this regard are the bye-laws of the Co- operative Union, a copy whereof has been marked as Annexure ''A'' to the rejoinder affidavit. Clause 3 of the bye-laws incorporates the objects of the Co-operative Union which are as follows :
Objects
The objects of the Union shall be to promote and to develop the co-operative movement in India, to educate, guide and assist the people in their efforts to build up and expand the co-operative sector and to serve as an exponent of co-operative opinion in accordance with co-operative principles as enunciated in the first schedule to the Act.
In furtherance of these objects, the Union may either by itself or in collaboration with other co-operative institutions :
(i) organise co-operative education and training programmes and popularise the principles and practices of co-operation;
(ii) develop inter-co-operative relations and help the co-ordinated functioning of the co-operative movement in various sectors;
(iii) organise, conduct, collaborate and assist in carrying out research; investigation of co-operative problems and formulation of projects for co-operative development;
(iv) arrange for the production and publication of literature and audio- visual and other aids including films, filmstrips on cooperation and allied subjects;
(v) give publicity to the achievements of co-operative through periodicals, journals, newspapers, pamphlets, brochures, books, films, broadcasts, T.V. and the like for creating favourable atmosphere for the development of the co-operative movement;
(vi) maintain an information bureau and a library;
(vii) express opinion on matters of cooperative policy and act as the accredited representative of the Indian Co-operative Movement in the national and international spheres;
(viii) convene and hold the National cooperative Congress and co-operative seminars, meetings, conference, exhibitions etc;
(ix) select delegates, representatives and observers on behalf of the Union for participation in the international, national and State conference;
(x) facilitate the promotion of cooperative institutions and assist the member societies in resolving their problems and difficulties and formulation of programmes and their implementation and preserve and safeguard the democratic character of the co-operative movement in the country;
(xi) to confer honour on the eminent co-operators;
(xii) acquire, hire, purchase, own or dispose of immovable property by way of sale, lease or otherwise for the furtherance of the objects of the Union;
(xiii) promote international cooperative relations through active collaboration with ICA, UNO, FAO, IIO, UNDP, UNIR and other international agencies involved in cooperative developments;
(xiv) establish effective liason and relations with ICA member-organisations and national cooperative organisations of other countries;
(xv) help, promote international marketing on cooperative to cooperative basis by documenting necessary information and to act as nodal agency for the benefit of Indian Cooperative Movement;
(xvi) to provide consultancy services to cooperative
(xvii) to maintain the following funds :
(a) Cooperative Education Fund,
(b) National Cooperative Training Fund,
(e) any other fund as decided by the governing council from time to time.
(xviii) generally undertake such activities or functions as are considered incidental or conducive to the attainment of the objects of the Union.
Clause 4 provides that the membership of Union shall be open to the following :
Membership
The membership of the Union shall be pen to :
(i) State Cooperative Unions or by whatever names they are called;
(ii) National Cooperative Societies/ Federations;
(iii) Cooperative unions of union territories;
(iv) Cooperative business and non-business federation/apex societies of State and Union territories;
(v) State Tribal Development Co-operative Corporation registered under the cooperative law;
(vi) Multi-State Cooperative Societies not included in (ii) above;
(vii) Ex-Presidents of the Union who have served their full term of office and other individuals not exceeding 15 in number with the knowledge and experience in the field of cooperation and their term of membership will be coterminus with the term of the governing council.
(viii) National Cooperative Development Corporation, National Bank of Agriculture and Rural Development, National Dairy Development Board, and Rural Electrification Corporation.
Clause 8 deals with the funds of the cooperative union and the sources of the fund are the following
Funds
The funds of the Union may be raised from the following :
(i) Annual membership subscription;
(ii) contribution or donations;
(iii) Grants from government;
(iv) Moneys/income from the cooperative education fund created as per Act and rules and maintained by the Union.
(v) Sale proceeds of publications, journals, text books, films etc.
(vi) Loans and advances; and
(vii) Income from exhibitions, projects, consultancy services or any other activities undertaken by the Union as per its bye-laws.
From clause 9 it appears that the Cooperative Union would be raising considerable funds from the annual subscription from members. Clauses 10 to 13 relates to the general body or the Co-operative Union and clause 13 provides that the authorities of the Union shall vest in the general body which shall perform the functions enumerated in that clause. Clauses 14 and 15 relate to governing council. Clause 16 provides for formation of committees and clause 17 deals with the powers and functions of the Executive Committee. Powers of the President, Vice President and the Chief Executive are dealt with in clauses 18, 19 and 20 respectively. Clause 22 provides that the Cooperative Union shall have service rules for regulating the service conditions of its employees as formulated and amended by the competent authority from time to time. Clause 26 stipulates that all questions at the meetings shall be decided by a majority of votes. The only clause in the bye-laws where there is a reference to the Government of India is clause 16 A which states that National Council for Cooperative Training shall be constituted by the Co-operative Union in consultation with the Government of India.
In view of what has been found above it is plain that the Cooperative Union does not satisfy any of the six tests as spell out in the case of Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, and cannot be held to be an instrumentality or an agency of the State or an authority within the meaning of Article 12 of the Constitution.
Faced with this position, Dr. Jha fell back upon the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, . Dr. Jha particularly relied upon paras 15, 16, 18 and 21 of this decision and submitted that the powers of this Court to issue writs under Article 226 of the Constitution went beyond the confines of Article 12. I am of the opinion that the decision relied upon by Dr. Jha is not applicable in the facts and circumstances of this case. The point of distinction, to my mind, is to be found in para 13 of that decision wherein Their Lordships while explaining and distinguishing two earlier decisions of the Supreme Court ( Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, ) observed as follows :
but here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus.
In my opinion, the facts of the case in hand are fully covered by two division Bench decisions of this Court as also a decision of the Supreme Court. I propose first to examine the two decisions of this Court. In the case of Harendra Narain Ranker vs. State of Bihar and others, 1985 P.L.J.R. 1078, the question for consideration before a division Bench of this Court was whether Bihar State Co-operative Marketing Union Limited (for short ''the Biscomaun'') a society registered under the Bihar & Orissa Cooperative Societies Act, 1935 was an instrumentality or agency of the State and consequently, amenable to the writ jurisdiction. The assertions made in support of the contention that Biscomaun was an instrumentality of the State were much more formidable than what has been pleaded in this case. In the case of Biscomaun, it was stated that all the employees of Biscomaun were governed by the provisions contained in the Bihar Service Code and their pay scales and emoluments were at par with those of the Government Servants. Further the replacement scale of salary as per the Government resolution on the recommendation of the 4th pay revision committee had also been made applicable to the employees of Biscomaun. It was also stated that the share of the State Government in Biscomaun was 99% and baring the shares held by the Cooperative Societies and others the remaining share capital was held by the State. It was also stated that the Biscomaun was run and managed by 35 Government servants and among them one was an I.A.S. officer and four persons were in the rank of Additional District Magistrate. In the face of these assertions, a Bench of this Court on a detailed consideration of a number of Supreme Court decisions came to the conclusion that Biscomaun was not an instrumentality or agency of the State Government and was accordingly outside the purview of the writ jurisdiction.
It is true that after the aforesaid decision wholesale and radical amendments were brought about in the Bihar & Orissa Cooperative Societies Act, 1935 whereby the status and character of Biscomaun was fundamentally changed and after those amendments this Court has on a number of occasions issued writs and directions to Biscomaun. But recently in the case of Bihar State Coop. Marketing Union Ltd. Vs. State of Bihar and Others , the question regarding the status and character of Biscomaun, before the amendments in Cooperative Societies Act once again cropped up and a Bench of this Court reiterating the earlier decision in the case of Harendra Narain Banker (supra) reiterated that before the amendments Biscomaun was a Cooperative Society registered under the Bihar and Orissa Cooperative Societies Act, 1935 and as such was not amenable to the writ jurisdiction under Article 226 of the Constitution.
Very similar on facts is the case of Chandra Mohan Khanna vs. National Council of Educational Research and Training and others, AIR 1990 (2) S.C. 76. In that case, an employee of the N.C.E.R.T. whose services were terminated challenged the termination in the Delhi High Court under Article 226 of the Constitution. The challenge failed on. the objection that the N.C.E.R.T. was not amenable to the writ jurisdiction of the High Court as it was not an instrumentality or ''other authority'' within the meaning of Article 12 of the Constitution. In appeal the Supreme Court upheld the High Court''s decision and found that N.C.E.R.T did not satisfy the requirements of State under Article 12 of the Constitution. Following observation was made in para 5 of the judgment :
The object of the N.C.E.R.T. as seen from the above analysis is to assist and advice the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programmes in the field of education particularly school education. The N.C.E.R.T. under takes several kinds of programmes and activities connected with the coordination of research extension services and training. dissemination of improved educational techniques, collaboration in the educational programmes. It also undertakes preparation and publication of books, materials, periodicals and other literature. These activities are not wholly related to governmental functions. The affairs of the N.C.E.R.T. are conducted by the Executive Committee comprising of Government Servants and educationists. The Executive Committee would enter into arrangements with Government, public or private organisations or individuals in furtherance of the objectives for implementation of programmes. The fund of the N.C.E.R.T. consist of ; (i) grants made by the Government, (ii) contribution from other sources, and (iii) income from its own assets. It is free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control is confined only to the proper utilisation of the grant. The N. C. E. R. T. is thus hugely an autonomous body.
The Cooperative Union in this case does not have any association with the Government even on the level of N. C. E. R. T. as observed by the Supreme Court in the aforequoted passage.
I have, therefore, not the slightest hesitation in holding that the Cooperative Union (respondent no. 1) is neither a State nor an instrumentality or agency, or authority within the meaning of Article 12 of the Constitution and is, therefore, not subject to writ jurisdiction of this Court.
This writ petition is, therefore, not maintainable. To hold this is not to say that the petitioner is without her remedy. The petitioner may seek her remedy, if available, under the Industrial Disputes Act or the Bihar Shops and Establishment Act in accordance with law. In the result, this writ application is dismissed as not maintainable but in the facts and circumstances of this case, there shall be no order as to costs.