Sunil Kumar Banerjee vs South Eastern Railway Co-Operative Credit Society and Others

Amiya Kumar Mookerji, J.—This Rule is directed against an order dated 16th September, 1978 passed by the Secretary, South Eastern Railway Employees'' Co-operative Credit Society Limited (A society registered under the Co-operative Societies Act). The petitioner is one of the senior clerks employed in the said Society at its Calcutta Office all Circular Garden Reach Road, Calcutta. By an order 28.10.74 the petitioner was promoted to officiate as sub-head. In the said order, it is stated, that the said promotion was on stop-gap measure and the incumbent would have no claim for continuing on or for further promotion. Two years before, in the year 1972, the Society decided to decentralise and to shift a portion of its work of keeping accounts to its branch office at Kharagpur in respect of its members at Kharagpur. As a result of such decision, it became necessary to transfer some of its employees to the said branch office at Kharagpur. By a notice dated November 26, 1975 issued by the Respondent No. 12 it was stated that only seniormost clerks of the Society would be promoted on transfer to Kharagpur Office as a regular promotion. It was further stated that those who did not volunteer to accept the said promotion on transfer, they would not get the seniority of sub-heads. The petitioner, however, did not exercise his option in favour of such promotion on transfer. As a result, the clerical staff who exercised their option for transfer to Kharagpur office on promotion as sub-heads, automatically became senior to the petitioner. Subsequently, a promotional post of sub-head became available. The petitioner, being eligible for promotion to the post of sub-head, the impugned order of transfer on promotion was passed by the Secretary to the Society. The petitioner being aggrieved, moved his court under Art. 226 of the Constitution and obtained the present Rule.

A preliminary objection was raised on behalf of the respondent that no writ lies against a co-operative society or its officers. Mr. Ghose, appearing for the petitioner contended that in view of incorporation of new S. 8 in West Bengal Co-operative Societies Act. 1973 the Secretary to the Co-operative Society and other office bearers are "public servants" within the meaning of S. 21 of the Indian Penal Coda and as such the officers of the Co-operative Societies are required to perform statutory duties. The secretary is an "officer" of the Society in terms of sub-s(1) of S. 2 of the Act. According to Mr. Ghose, a writ of Mandamus is available to the petitioner against an order passed by an officer of the Co-operative Society.

In support of his contention Mr. Ghose relied upon a decision of the Supreme Court in the The Nayagarh Co-operative Central Bank Ltd. and Another Vs. Narayan Rath and Another, .

In that case the Supreme Court quashed the impugned order passed by the Registrar of the Co-operative Societies who was acting as a statutory authority in the purported exercise of powers conferred on him by the Co-operative Societies Act. In view of above, the Supreme Court held that writ petition was maintainable. In that decision the Supreme Court observed that the judgment of the High Court of Orissa should not be treated as an authority for the proposition that a writ petition is maintainable against a co-operative society. So in my view, that decision of the Supreme Count is of no assistance to the petitioner.

Section 8 of the 1973 Act provides that the officers of the Co-operative Societies shall be deemed to be public servants within the meaning of S. 21 of the Indian Penal Code.

In The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, , the Supreme Court observed that when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the Statutory fiction and it should be carried to its logical conclusion. In The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, , the Supreme Court observed that no doubt Art. 226 provides that every High Court shall have the power to issue to any person or authority orders and writs in the nature of Habeas Corpus Mandamus etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purposes. But it is well-understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for its has a sufficient legal interest. It is always required that the applicant for a mandamus should have a legal and specific rights to enforce the performance of these duties. Therefore, the condition precedent for the issue of a mandamus is that, there is in one claiming a legal right to the performance of a legal duty by one against whom it is sought. It is however, not necessary that the person of the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted, or governed and also the companies or corporation to carry out duties placed on them by the statutes authorising the undertakings. A mandamus could also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities.

In Kulchhinder Singh and Others Vs. Hardayal Singh Brar and Others, , the Supreme Court observed that the distinction between a body with a personality created by and owing its existence solely to a statute and an entity in which is recognised by and is registered under a statute is real, dramatic and makes for a world of difference in jural impact. What is immediately relevant is not whether the respondent is state or public authority but whether what is enforced is a statutory duty or sovereign obligation or public function of a public authority. Private law, may involve a statutory body or a public body, or a public body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction.

The purpose and intention of incorporating S. 8 in the Act of 1973 is that, the officers of the Co-operative Societies shall be deemed to be public servants under S. 21 of the Indian Penal Code so that heavy punishment could be inflicted upon them and they could be prosecuted with regard to such offences which could only be committed by public servants. A Society registered under the Co-operative Societies Act is not a statutory body. It is not also created by a statute. There are certain bye-laws by which a Society functions. But these bye-laws are in the nature of a contractual agreement between the Society and its members or its employees. The officers of A Co-operative Society have got no statutory duty to perform under the Act and in view of the decision of the Supreme Court in The Nayagarh Co-operative Central Bank Ltd. and Another Vs. Narayan Rath and Another, that no writ lies against a co-operative society, the officers of the Society do not stand in a better position. Accordingly, I hold that no writ lies against a Society registered under the Co-operative Societies Act, or its officers. As regards the merits of the case. Mr. Ghose contended that great injustice has been done to the petitioner. The notice dated 26th November, 1975 was contrary to the agreement which is annexure B to the petition. Annexure B is an agreement dated 13. 2 75 between South Eastern Railways Employees Co-operative Credit Society Ltd and its Union at Garden Reach, Calcutta. In clause (3) it is stated that in connection with the transfer of accounts, the op-tees and the new recruits only will be transferred. It is argued that in contrary to the said agreement the impugned order of transfer of the petitioner was passed by the Secretary of the Society. Mr. Ghose was unable to produce any relevant Rules or Regulation by which the seniority and the promotions of the employees are governed. Annexure A to which my attention is drawn, is also an agreement dated 3rd August, 1971. If there has been any violation of the agreement, in that case, the petitioner has got his remedy for breach of the said agreement in a Civil Suit. Contract could not be enforced in a Writ Court.

In the result, this Rule is discharged.

There will be no order as to costs.