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2009 DIGILAW 232 (CAL)

Ram Hari Sen v. STATE OF WEST BENGAL

2009-03-17

S.P.TALUKDAR

body2009
Judgment :- S.P. TALUKDAR, J. (1) The instant application under Article 226 of the Constitution is directed against issuance of an order of transfer by the respondent authority being the order dated 14th February, 2008. Grievance of the petitioner, as ventilated in the instant application, may briefly be stated as follows:- By an appointment letter dated 21st October, 1982 the petitioner, who was working as a Casual Attendant, was appointed in the post of Attendant w.e.f. 1st of October, 1982. He was transferred in 1988 to Kolaghat Milk Chilling Plant. On 15th April, 1988, he faced an accident due to chemical verge. After a few days, he had to be admitted to S.S.K.M. (2) Hospital where he had to undergo plastic surgery. The petitioner was once again transferred to its Head Office. In 1998, he was transferred to Chandrakana Milk Chilling Plant and from there, to Sabang Milk Chilling Plant vide order of transfer dated 14th February, 2008. The petitioner submitted a representation before respondent No. 6 stating therein that his place of transfer is about 110 k.m. away from his residence and in view of the major operation the petitioner had to undergo, he sought for withdrawal of the said order of transfer. (3) The respondent authority, however, failed to consider the grievance of the petitioner in its proper perspective. By filing a Supplementary Affidavit, the petitioner claimed that the grievance of the petitioner can very well be entertained by this writ Court since the functions and duties of the respondent No. 2 and respondent No. 6 come within the meaning of Article 12 of the Constitution of India. Under the usual norms and guidelines, the respondent No. 6 is appointed by the Chairman of the Midnapore Co-operative Milk Producers Union Limited i.e., the District Magistrate of Paschim Midnapore. Besides, the Co-operative Milk Producers Union Limited is partly run by the financial aid of West Bengal Milk Federation, which is a Government Undertaking Body/Organization under the State of West Bengal. After hearing learned Counsel for both parties and having regard to the materials available on record, it appears that the crux of the controversy is whether the present application is maintainable or not. (4) Mr. After hearing learned Counsel for both parties and having regard to the materials available on record, it appears that the crux of the controversy is whether the present application is maintainable or not. (4) Mr. Milon Bhattacharjee, appearing as learned Counsel for the respondent authority, submitted that the case is not maintainable since the action under challenge had not been taken by an authority, which could be brought within the scope and ambit of Article 12 of the Constitution. (5) Inviting attention of the Court to Rule 48 of the West Bengal Co-operative Societies Rules, 1987, it was submitted that it is within the powers of the board of a co-operative society to have full control over the administration and the business of the society. Rule 108 of the said Rules, 1987 relates to conditions of service of the employees of cooperative societies. It lays down as follows:-"The conditions of service of the employees of co-operative societies shall, subject to the terms of specific contract enforceable by law and the provisions of any land for the time being in force, be as enunciated in the Appendix to this Chapter." Rule 11 of the Conditions of service (App. to Ch. VI) may be reproduced as follows:-"11. Transfer and training. (1) Every employee shall be liable to be transferred from one post to another and/or from one station to another in the interest of the business of a co-operative society. Every employee shall also be liable to join any training course as may be decided by the board and will be entitled to full pay and allowances during the training period including period of journey to and from the training centre. A society shall be under obligation to send an employee for training when that benefits the employee. (2) On transfer from one station to another or for joining a training centre or return therefrom, every employee shall be entitled to six days joining time, in addition to the time required for the journey, provided that when there is no change of residence, joining time shall not be more than twenty-four hours." (6) West Bengal Co-operative Societies Rules, 1987 came into force on 1st of August, 1987 as notified by the State Government. The relevant Act is the West Bengal Cooperative Societies Act, 1983 (West Bengal Act XLV of 1983). The relevant Act is the West Bengal Cooperative Societies Act, 1983 (West Bengal Act XLV of 1983). Question that arises is whether such Rules being in relation to the West Bengal Co-operative Societies Act, would attract Article 12 of the Constitution. (7) The Apex Court in the case of U.P. State Coop. Land Development Bank Ltd. Vs. Chandra Bhan Dubey, as reported in AIR 1999 SC 753 , held that "in relation to the question whether a writ petition would lie against a co-operative society the question to be considered is what is the nature of the statutory duty placed on it and the Court is to enforce such statutory public duty." (8) In the case of Bholanath Roy and Ors. Vs. State of West Bengal and Ors., as reported in 1996 (1) CLJ 502 , it was held that "it is no longer in doubt or in dispute that a writ of mandamus can be issued by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India only against a State, the exception inter alia being a public body exercising public function or enjoying a monopoly status.". It was observed that Article 12 cannot be stretched too far so as to bring within its purview all autonomous bodies which have some nexus or dealing with the Government and/or other public bodies. (9) Mr. Milon Bhattacharjee, as learned Counsel for the respondent authorities, categorically submitted that the respondent authority being a simple co-operative society, it is not amenable to the writ jurisdiction of this Court. In the unreported decision of the learned Single Bench of this Court, being W.P. No. 1046 (W) of 2007, the learned Single Bench held that the affairs of the society are in no way controlled by the State Government. Referring to the decision of the Apex Court in the case of Shivaji Vs. Shetkari Sahakari S.K. Ltd. and Ors., as reported in (2005) 13 SCC 414 , Mr. Bhattacharjee submitted that in order to establish that a co-operative society is State within the meaning of Article 12 of the Constitution, the factual background has to be highlighted and the different criteria fixed in various cases have to be established. (10) The Apex Court in the case between S.S. Rana Vs. Registrar, Coop. Bhattacharjee submitted that in order to establish that a co-operative society is State within the meaning of Article 12 of the Constitution, the factual background has to be highlighted and the different criteria fixed in various cases have to be established. (10) The Apex Court in the case between S.S. Rana Vs. Registrar, Coop. Societies and Anr., as reported in (2006) 11 SCC 634 , held : "It has not been shown that the State exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. The State furthermore is not the majority shareholder. The State has the power only to nominate one Director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority Directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the society, several other relevant questions are required to be considered, namely : (1) How was the society created? (2) Whether it enjoys any monopoly character? (3) Do the functions of the Society partake statutory functions or public functions? And (4) Can it be characterized as public authority?". (11) Referring to the decision in the case of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology, as reported in (2002) 5 SCC 111 , it was submitted that the question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then such body is a State within Article 12. But when the control is merely regulatory, whether under statute or otherwise, it would not serve to make the body a State. An identical stand was taken by the Apex Court in the case of Bhadra Shahakari S.K. Niyamita Vs. Chitradurga Mazdoor Sangh and Ors., as reported in (2006) 8 SCC 552. (12) The Full Bench of the Bomaby High Court in the case between the The Shamrao Vithal Co-operative Bank Limited and Anr. Vs. Padubidri Pattabhiram Bhat and Anr., as reported in AIR 1993 Bombay 91, held that the manner in which an organization is created is not of any direct relevance. (12) The Full Bench of the Bomaby High Court in the case between the The Shamrao Vithal Co-operative Bank Limited and Anr. Vs. Padubidri Pattabhiram Bhat and Anr., as reported in AIR 1993 Bombay 91, held that the manner in which an organization is created is not of any direct relevance. What is required to be seen is whether there is pervasive State control over its management and functioning. (13) What seems to be the settled position of law is that in a welfare State, many activities which are often carried on by private organizations are undertaken by the State. In such cases the Supreme Court has said that we must look at the overall position of the organization in the light of the other tests also, especially when the function of the organization is not such as can be carried on only by the State or is not connected with governmental functions. Learned Division Bench of this Court in the case of Arjed Ali Gazi Vs. State of West Bengal, as reported in CAL. LT. 1991(1) HC 211, held that ordinarily a writ does not lie against a private body but the position is entirely different if such private body is vested with statutory duties and functions. For inaction relating to such statutory duties or improper action contrary to the statutory provisions such private body becomes amenable to writ jurisdiction. (14) It was further submitted on behalf of the respondent authority that orders of transfer are not ordinarily to be interfered with unless such order manifestly reflects mala fide or it is in violation of statutory rules/regulations. (15) Inviting attention of the Court to the decision in the case of Gujarat Electricity Board and Anr. Vs. Atmaram Sungomal Poshani, as reported in (1989) 2 SCC 602 , it was submitted by Mr. Bhattacharjee that the order of transfer which is under challenge in the present writ application deserves no interference. (16) It was contended that expediency of a transfer cannot be subjected to judicial review merely on the ground that the transferee had already worked in the past at the place where he was again being transferred to. (Ref: State of M.P. and Anr. Vs. S.S. Kourav and Ors., (1995) 3 SCC 270 ). (16) It was contended that expediency of a transfer cannot be subjected to judicial review merely on the ground that the transferee had already worked in the past at the place where he was again being transferred to. (Ref: State of M.P. and Anr. Vs. S.S. Kourav and Ors., (1995) 3 SCC 270 ). So far the present case is concerned, no such material could be placed before the Court so as to even remotely suggest that such order of transfer was issued in a mala fide manner or it was in violation of any statutory rule/regulation. Transfer is an incident of service and it is generally the prerogative of the authority to decide as to what would be in the best interest of the organization. An employee cannot have unfettered right to be posted at a particular place or for a particular period. The contention made by learned Counsel for the petitioner while assailing the order of transfer fails to inspire confidence of the Court. Moreover, having regard to the decisions in a number of cases as dealt with earlier, I do not think that the action under challenge can be entertained by this Court in exercise of its writ jurisdiction. It cannot be held that the respondent authority is a State within the meaning of Article 12 of the Constitution. (17) In such view of the matter, the writ application fails and be dismissed. There is no order as to costs. (18) Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.