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2007 DIGILAW 458 (ALL)

MADAN LAL GUPTA v. STATE OF U. P.

2007-02-28

SUDHIR AGARWAL

body2007
SUDHIR AGARWAL, J. ( 1 ) HEARD Sri Sudhir Dixit, learned counsel for the petitioner, learned Standing counsel for respondents No. 1 and 2 and Sri G. D. Misra appearing for respondents No. 3 and 4. ( 2 ) THE petitioner was working as a kshetriya Paryavekshak at Dugdh Sangh Parag dairy, Sasni, Aligarh and attained his superannuation on June 30, 2003. He contends that he has not received post retiral benefits till date. No relief has been sought by the petitioner from respondents No. 1 and 2 since it has no connection with this matter. The petitioner has no relationship of employer and employee with respondents No. 1 and 2. ( 3 ) A preliminary objection has been raised on behalf of the respondents No. 3 and 4 that dugdh Sang Parag Dairy being a co-operative society is not a state or state Instrumentality within the meaning of Article 12 of the constitution of India and, therefore, the writ petition is not maintainable. Reliance is placed on the Apex Court judgment in General manager, Kisan Sahkari Chini Mills Ltd. Sultanpur, U. P. v. Shatrugltan Nishad and others, 2003-III-LLJ-1108 and a Division bench judgment dated May 14, 2004 passed in special Appeal No. 654 of 2002 Samanya prabandhak/niyukti Adhikari, Bareilly Dugdh utpadak Sahkari Sangh, Ltd. Barillly v. Desh raj Singh and Others wherein it has been held that the writ petition against a co-operative society is not maintainable since it is not state within the meaning of Article 12 of the constitution. ( 4 ) LEARNED counsel for the petitioner in order to wriggle out of the preliminary objection contended that the pensionary benefit is a fundamental right of an employee and non-payment thereof violates the provisions of articles 16 and 21 of the Constitution. For that purpose, he relied on a judgment of this Court in samal Chand Tiwari v. State of U. P. and others, 2006 (2) ALJ 45 where in paragraph 10 this Court has held that the petitioner has a fundamental right to earn livelihood under article 21 of the Constitution of India which includes that after the retirement he is also entitled to receive his deferred wages in accordance with rules. Non-payment of retiral benefits, therefore, of the petitioner is violation of the petitioners fundamental under 21 of the constitution of India. Non-payment of retiral benefits, therefore, of the petitioner is violation of the petitioners fundamental under 21 of the constitution of India. He contented that whenever there is violation of fundamental right of the petitioner, the petition under Article 226 of the Constitution would be maintainable. He also placed reliance on a single Judge judgment of Madhya Pradesh High Court in vijay Krishna Neema v. Central Bank of India 2005 (105) FLR 856. ( 5 ) I have given my serious thoughts to the matter and am inclined to uphold the preliminary objection. In my view, the writ petition is not maintainable. The petitioner has not given any material either in the writ petition or in the rejoinder affidavit showing as to how the respondents No. 3 and 4 where he was working, namely, Dugdh Sangh Parag Dairy is an instrumentality of the state or otherwise a state in order to attract Article 12 of the constitution. In absence thereof and in view of the factual averments made by respondents No. 3 and 4 in the counter affidavit that the said co-operative Society is a private body and is not a state or "states instrumentality" within the meaning of Article 12 of the Constitution, I have no reason to disbelieve the same and it has to be held that the said Co-operative Society is a private body and is not State or State instrumentality within the meaning of Article 12 of the Constitution. The Apex Court in general Manager Kisan Sahkari Mills (supra)while considering a similar question as to whether the said Co-operative Society is a State under Article 12 of the Constitution in para 8 held as under 2003-III-LLJ-1108 at p. 1112: ". . . . . . . . . Thus, we find none of the indicia exists in the case of mill, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and therefore, it is not State within the meaning of Article 12 of the constitution. . . . . . . . . Thus, we find none of the indicia exists in the case of mill, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and therefore, it is not State within the meaning of Article 12 of the constitution. " ( 6 ) A plea was taken in General Manager kisan Sahkari Mills (supra) that writ petition under Article 226 of the Constitution cart be entertained against any person which would include any private person or body and mandamus can be issued but this was rejected by the Apex Court and in para 9 the Court held as under 2003-III-LLJ-1108 at p. 1112: "learned counsel appearing on behalf of the contesting respondents submitted that even if the mill is not an Authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include any private person or body. Learned counsel appearing on behalf of the appellant, on the other hand, submitted that mandamus can be issued against private person or body only if infraction alleged is in performance of public duty. Reference in this connection may be made to the decisions of this Court in andi Mukta Sadguru Shree Muktajee vandas Swami Swarna Jayanti Mahostav smarak Trust and Others v. V. R. Rudani and others, AIR 1989 SC 1607 : (1989) 2 SCC 691 : 1989-II-LLJ-324 in which the Court examined the various aspects and distinctions between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances, when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked. In the cases of K. Krishnamacharyulu and Others v. Sri venkateswara Hindu-College of engineering and Another AIR 1988 SC 295 : (1997) 3 SCC 571 : 2001-III-LLJ (Suppl)1454 and VST Industries Ltd. v. VST industries Workers Union and Another, 2001-I-LLJ-470 (SC) the same principle has been reiterated. Further, in the case of VST industries Ltd. (supra), it was observed that manufacture and sale of cigarettes by a private person will not involve any public function. Further, in the case of VST industries Ltd. (supra), it was observed that manufacture and sale of cigarettes by a private person will not involve any public function. This being the position in that case, this Court held that the High Court had no jurisdiction to entertain an application under article 226 of the Constitution. In the present case, the mill is engaged in the manufacture and sale of sugar which on the same analogy, would not involve any public function. Thus, we have no difficulty in holding that jurisdiction of the High Court under Article 226 of the Constitution could not have been invoked. " ( 7 ) SIMILAR issue came up for consideration before the Division Bench in Samanya prabandhak/niyukti Adhikari, Bareilly Dugdh utpadak Sahkari Sangh (supra) and following the Apex Court judgment in General Manager, kisan Sahkari Chini Mills Ltd. (supra), this court held that the writ petition is maintainable against such a co-operative society. The Court also observed that in the writ petition the petitioner has not even laid any foundation for establishing, the factors relevant to determine as to whether the employer against whom he has approached the Court satisfy various factors which are relevant for determining as to whether the said body is a State under Article 12 of the Constitution. In the absence of any pleading in the writ petition, this Court held that it cannot be said that such a body is a state under Article 12 of the Constitution and hence the writ petition is not maintainable. ( 8 ) IN this case also in the writ petition there is no foundation laid by the petitioner at all to show that the Co-operative Society, employer of the petitioner, fulfils various factors relevant to determine that it is a state under Article 12 of the Constitution and when objection was taken in para 4 of the counter affidavit, in the rejoinder affidavit the petitioner has merely denied the averments but no foundation or factual material has been placed on record to show that the respondent Aligarh Dugdh utpadak Sahkari Sangh Ltd. Parag Dairy is a state. In this view of the matter, I have no hesitation to hold that the said dairy is not a state. Under Article 12 of the Constitution and, therefore, the writ petition under Article 226 of the Constitution is not maintainable. In this view of the matter, I have no hesitation to hold that the said dairy is not a state. Under Article 12 of the Constitution and, therefore, the writ petition under Article 226 of the Constitution is not maintainable. Moreover, the dispute pertaining to service matters between an employee and a private employer does not involve public function or discharge of public duty in respect whereto writ petition under Article 226 of the Constitution can be entertained. Accordingly, this writ petition is dismissed as not maintainable. There shall be no order as to costs. .