D.H. Shukla, J.
1. The petitioner, V.I. Khalifa of Surendranagar, has filed the present Special Civil Application, for the issuance of a writ, order or direction under Article 226 of the Constitution of India for quashing the order of his dismissal, dated 17-5-1985, and confirmed on 10-3-1986. The copies of the two orders are at Annexures 'A' and 'C to the petition.
2. The facts shortly stated are that the petitioner joined as a Peon with the Surendranagar District Co-operative Bank Ltd., Patdi Branch, in the year 1961. Since then he was working as a Peon at Patdi Branch, till 10-6-1985, when he was posted as a Peon at the Limdi Branch of the Bank. The petitioner was a Class IV servant drawing a salary of Rs. 648/-and D.A. with House Rent Allowance etc., per month. On 17-5-1985, the petitioner was served with an order dismissing him from service on the ground that he had intentionally remained on leave without pay for more days than allowable under settlement, which leave without pay was termed as a serious misconduct by the respondent. The grievance of the petitioner is that before passing the impugned dismissal order, the petitioner was not given a show-cause notice, nor was he given an opportunity to render an explanation as to the alleged misconduct.
3. The petitioner submitted an application dated 29-5-1985 to the respondent explaining the reasons for being on leave. Taking into consideration his explanation, the order of dismissal was temporarily suspended and the petitioner was directed to report to Limdi Branch of the Bank. A copy of this order is at Annexure 'B' to the petition. It was expressly stated in the said order that in order to revise the earlier order that in order of suspension was put into abeyance temporarily and that the petitioner was to report on duty subject to a condition that the period of his leave shall be considered as leave without pay. The petitioner then served at Limdi Branch from 10-6-1985 till 10-3-1986. When he was served with a further order of dismissal. The petitioner alleges that the impugned orders of dismissal are against the principles of natural justice, inasmuch as prior to the passing of the order, the petitioner was not given show cause notice and no opportunity was given to him to explain why he went on leave without previous permission.
4. The respondent has filed an affidavit-in-reply contesting the petition. It is contended on facts that petitioner had been in the constant habit of remaining absent without obtaining leave. The impugned order was not passed in violation of the principles of natural justice, but in fact it was to do him justice that the order of dismissal was suspended. However, he did not show any improvement in his conduct, and therefore his dismissal was required to be latter on confirmed. It is contended, to which no affidavit in rejoinder is filed, that in all the petitioner remained on unauthorised leave for a total period of 114 days. Perusal of Annexure 'A' i.e. the earlier order of dismissal dated 17-5-1985 discloses that the petitioner was entitled to enjoy a leave of 365 days, inclusive of the days he was entitled to be on leave without pay, whereas he had in all enjoyed a leave of 479 days till 5-2-1982. It is, therefore, contended that since the petitioner did not improve his conduct even after he was given an opportunity to do so, the respondent was constrained to put an end to his service with it. It is denied that the finding of misconduct of the petitioner in contrary to the evidence on record. Since the petitioner was apprised of his conduct of remaining on unauthorised leave, time and again, there is no question of breach of the rule of audi alterant partem. It is also contended that being on an unauthorised leave is a disputed question of fact which could only be properly decided in the proceedings under the B.I.R. Act.
5. Two preliminary questions are raised by the respondent. The respondent is not 'State' as envisaged in Article 12 of the Constitution of India, and therefore it is not amenable to the writ jurisdiction of this Court under Article 226 of the Constitution. It is contended that the respondent is not holding any public office, nor is it a statutory authority, and therefore the respondent is not amenable to the writ jurisdiction of this Court under Article 226 of the Constitution, even while reading the article in respect to the issuance of any writ 'to any person or authority'. Secondly, it is contended that there is an alternative statutory remedy available to the petitioner under the Bombay Industrial Relations Act, and therefore also this Special Civil Application is not maintainable.
6. Miss K.M. Shah, the learned Advocate for the petitioner, endeavoured to persuade me to take the view that the petitioner was a 'State' within Article 12 of the Constitution of India. She referred me to the amendment which has been introduced by the petitioner in his petition. The following are the submissions to bring the respondent within the conception of 'State'. It is stated that the subscribed share-capital of the Bank was worth Rs. 3,50,00,000/- (rupees three crores fifty lacs) of which shares worth Rs. 98,64,000/- were subscribed by the State Government, which means almost l/3rd of the subscribed capital was held by the State Government. It is submitted that by amendment of bye-law No. 2, share capital of the Bank is increased to Rs. five crores fifty lacs of which shares worth rupees two crores are to be allotted to the State Government and/or the State Cooperative Bank. This, it is submitted that the State has effective financial control over the Bank.
7. The respondent has contended in regard to this plea that even according to the averment of the petitioner, the holding of l/3rd share capital would not prove that the State has effective financial control over the Bank, inasmuch as under the provisions of the Gujarat Cooperative Societies Act, each share-holder has one vote.
8. The petitioner has stated that Board of Directors consists of 15 Members, of which Vice President is representative of the State Government. Moreover, there is one more Director as representative of the State Government in addition to one appointed by Apex Bank, and one as a representative of the Registrar. In regard to this plea, it is contended in the affidavit-in-reply that the right to nominate a Director under a bye-law is contractual in nature and statutory. However, the Government has no overriding control over the Bank. It is emphatically denied that the State has any effective administrative control over the working of the Bank.
9. There is a further plea that the respondent is a 'State' inasmuch as it carries on an activity which is in consonance with the directive principles of the Constitution of India. Miss Shah invited my attention to a balance sheet (29th) at pages 7 and 8. It refers to a scheme for advancing loans to the weaker section of the agricultural population for the purpose of residential quarters (the balance-sheet is produced by Miss Shah during the course of her arguments and the same is directed to be kept on record). In view such activities of the respondent. Miss Shah contended that the respondent is covered within the concept of 'State'. In his affidavit-in-reply, the respondent has contended that under the 'Punarvasan Scheme', i.e. to say the Rehabilitation Scheme of the State Government, the Bank is required to give Rs. 250/- to small and marginal farmers to meet their social expenses. It is denied that the respondent is directed to implement directive principles of the State policy.
10. Based on the above circumstances. Miss Shah contended that the respondents must be held to be 'State'. She relied upon the following observations in the case of Rohtas Industries Ltd. and Anr. v. Rohtas Industries Staff Union and Ors. : (1976)ILLJ274SC :
The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so affect any person even a private individual and be available for any (other) purpose even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'. The Supreme Court has spent out wise and clear restraints on the use of this extraordinary remedy and High Court will not go beyond those whole some inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be Judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights.
She also referred me to the judgment of Ahmadi, J. in Special Civil Application No. 197 of 1979, decided on 5th July, 1985, reported in 22 GLT 149 (Sardarsingh Devisingh v. District Superintendent of Police S.K. 1985 (2) GLR 1368 : 1985 GLH 940). With respect, the citation of this judgment is besides the point. Ahmadi, J. has considered the question of punishment of dismissal for remaining on leave without sanction. He has observed that ends of justice would be met if instead of terminating the services of the petitioner by an order of dismissal the petitioner is visited with the penalty of withholding of two increments with future affect. However, this judgment does not throw any light on the question of the respondent herein being a 'State', which is under discussion.
11. As against this, Mr. P.M. Raval, the learned Advocate for the respondent, submitted that the question whether the respondent is 'State' or not will have to be considered in the light of the criteria laid down by the Supreme Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi and Ors. : (1981)ILLJ103SC . There is no question of considering the respondent as 'State' as meaning a Government. However Article 12 defines 'State' to include '.... and all local or other authorities within the territory of India or under the control of the Governments of India'. Can the respondent herein be deemed to be a 'State' as being a local or other authority under the control of the Government of India. In Ajay Hasia's case (supra), the Supreme Court observed : 'Whatever be its genetical origin, it would be an 'authority' within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in that light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a Company or Society and in a given case it would have to be decided on a consideration of the relevant factors, whether the Company or Society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article 12.' In the light of the facts before it, the Supreme Court observed that:.Having regard to the Memorandum of Association and the Rule of the Society it was held that the Society is an instrumentality of the agency of the State and Central Governments and it is an 'authority' within the meaning of Article 12. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu and Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the College are provided entirely by the Central Government and the Government of Jammu and Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society, have also to be submitted to both the Governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State of the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general Superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. Thus the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society.
The aforesaid Supreme Court judgment was considered.
12. The aforesaid Supreme Court judgment was considered by Talati, J. in the case of Bipinchandra Jugaldas Soni v. Gujarat State Co-operative Cotton Federation and Ors. 26(2) GLR 698. The status of the respondent-Society was considered in the light of the propositions laid down by the Supreme Court in Ajay Hasia's case (supra). It was observed that 'no grant from the State Government or any State Agency was required by the federation. It was also not the monopoly created by the State for its purpose. Respondent was only a Society registered under the Co-operative Societies Act. There are eight cooperative societies who are members of the respondent No. 1, which is an Apex Society. It is managed by the Elected Directors as provided by the Bye-laws and because there is contribution of the share capital which is redeemable and of preference type there are three nominated Directors and they cannot dominate the proceedings of respondent No. 1. Full management vested in respondent No. 1. There is no control by the State Government on respondent No. 1. The whole management and full control lay with respondent No. 1 and the whole Society is run by the Board of Directors who are chosen as per by-law No. 17 of the Bye-laws. It is observed, 'Now merely respondent No. 1 is asked to purchase cotton as many other agencies could be asked in the State or merely because respondent No. 1 is asked to help the farmers in growing cotton without any assistance or grant from the Government, merely because the State Government has contributed some share capital or given loan, the Society cannot by any stretch of imagination become an instrumentality or agency of the State'. I have quoted from this judgment at length, as it holds facts quite parallel to the facts of the present case.
13. Mr. Raval also invited my attention to a Division Bench judgment of this Court, a portion of which is reported in Ramnaran Rai v. Managing Director, Kaira Dist. Co-op. Producer's Union 1984 GLH (UJ 71) page 50 N.H. Bhatt, J, speaking for the Bench observed:
In a welfare state, there is bound to be over-lapping in the activities of the State in the sphere of welfare and the activities of certain Co-operative Societies and other Companies and Corporations and Philanthropists, who might be wedded to the advancement of the interests of their members along with propagating the welfare of the Society. So mere noble and social objectives by the side of personal objectives of the members of the Society which in their turn are the members of the Federation, again a Co-operative Society will not afford a necessary guideline for the purpose of deciding whether the respondent is a 'State' or not. We accept the proposition of law that even a Co-operative Society or even a Company established under the provisions of the Companies Act can be an instrumentality or agency of the State, and therefore, the nature of its birth by itself is hardly a faction to be taken serious note of while deciding the question. We find that this is a Co-operative Society manned and managed by citizens privately without any effective or substantial control over its management and conduct of affairs by the State or its agency.
It is further observed:
The society in essence has been created by the milk producers for their own benefit and if any social and welfare activities are conducted by it incidentally for the benefit of the general population in the District or in the State, it cannot be said that it is instrumentality of the State.
14. Similarly, in Special Civil Application No. 4255 of 1982, decided on 4-4-1984, (Ramsinh Samatbhai Mori v. Kodinar Rural Electricity Society 1984 GLT 173). Brother, Ravani, J. dealing with the same question in regard to the Kodinar Rural Electricity Co-operative Society Limited Kodinar, held that it was not a 'State' as envisaged in Article 12 of the Constitution of India. N.H. Bhatt, J. in Special Civil Application No. 2885 of 1984 (Gujarat Worker Association v. Amreli Jilla Panchayat) passed an order dismissing the petition summarily on 14-8-1984, observing that the Amreli Jilla Madhyasthan Sahakari Bank Ltd., Amreli, was not a 'State' since it was not shown an instrumentality or hand or the State in discharging State functions.
15. In the light of the legal position settled in Ajay Hasia's case (supra) and in other cases which followed it, I am not persuaded to take the view that the respondent is a 'State' within the definition of 'State' in Article 12 of the Constitution of India. The share capital held by the State is about l/3rd of the total share capital and that by itself would not be a sufficient ground to hold the respondent to be a 'State'. The Board of Directors consists of 15 members and the Directors appointed by the 'State are only 3 and there is nothing in the bye-laws to suggest that they have any overriding control over the respondent in its management.
16. Miss Shah referred me to Bye-law No. 30, wherein it is provided: 'In addition to the Directors mentioned in this bye-law, the State Government shall have a right to nominate not more than three nominees on the Board of Directors of this Bank. Each such nominee shall have one vote. The nominees of Government shall have power to appeal i.e., if the nominee is of the view that any resolution adopted by the Board inspite of his advice is injurious to the interest of Government, he shall have right to appeal to Government of Gujarat, through the Registrar of Co-operative Society and the decision given by Government in the matter shall be final and binding on the Board of the Bank'. This provision does not imply that the State has a general control over the working of the Bank or that the respondent becomes 'an instrumentality of the State'. So far as its activities are concerned, as pointed out by N.H. Bhatt, J. in the above referred ruling: 'In a welfare State, there is bound to be overlapping in the activities of the State in the sphere of welfare and the activities of certain Co-operative Societies and other Companies and Corporations and Philanthrophists, who might be wedded to the advancement of the interests of their members along with propagating the welfare of the Society'.
17. Miss Shah then submitted that even if the respondent is not covered within Article 12 of the Constitution of India, the power of the High Court to issue writs under Article 226 is much wider and that the High Court has the power to issue to 'any person or authority' directions, orders or writs, including writs in the nature of habeas corpus and other writs for the enforcement of any of the rights conferred by Part HI of the Constitution and for any other purposes. She again invited my attention to the observations of the Supreme Court in Rohtas Industries's case : (1976)ILLJ274SC . (supra) She once more read head-note (B) thereof in support of her argument that the power of the High Court under Article 226 was an extra-ordinary power and was as wide as the amplitude of the language used indicates. It can be issued against any person, even a private individual, and be available for a purpose other than the enforcement of fundamental rights-even for one for which another remedy may exist. She, therefore, submitted that even if the respondent-Bank is not covered within Article 12, it was a public utility concern and therefore it was but appropriate that the unsound decision reached by it in dismissing the petitioner was remedied by issuance of a proper writ. Miss Shah referred me to Section 2(n)(vi) of the Industrial Disputes Act, 1947, to show that the respondent-Bank was a public utility concern. She is obviously not right in relying upon this provision of the I.D. Act, 1947, since Sub-clause (vi) of Clause (n) of Section 2 of the said Act lays down as under:
(vi) Any industry specified in the First Schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification;
Provided that the period so specified shall not, in the first instance, exceed six months but may by a like notification, he extended from time to time, by any period not exceeding six months, at any one time if in the opinion of the appropriate Government public emergency or public interest requires such extension.
Miss Shah could not point out any notification to show that the respondent-Bank was declared a public utility service.
18. Miss Shah then referred me to a Division Bench judgment of this Court in the case of A.P. Shah and Ors. v. B.M. Institute of Mental-Health, Ahmedabad through its Secretary and Ors. 27 (2) GLR 910. She relied on the observations of the Division Bench to the effect that a mandamus can issue even in a case of a Society official to compel him to carry out the terms of the statute under or by which Society is constituted or governed or in case of a private company or corporation to carry out their statutory duties laid down by the statute under which they are set up or governed or where they have to perform public duties and public responsibilities. Miss Shah submitted that in the first place the respondent is a public utility service, since it caters to the needs of agricultural labourers for the construction of their residential houses by advancing limited loans to them, and secondly the writ may appropriately be issued to the respondents, inasmuch as it has failed to carry out the statutory duty, as prescribed by the Standing Orders, that before inflicting a punishment of dismissal a certain procedure is required to be followed. Both these points lead to a conclusion that the petitioner could be given a relief under Article 226, as the respondent was a public utility service and as it has committed a breach of a statutory obligation cast on it. Even assuming for an argument's sake that the respondent is a public utility service the issuance of the writ under Article 226 would not be justified for remedying a private wrong.
19. In Praga Tools Corporation v. C.V. Imanual and Ors. : (1969)IILLJ479SC , the Supreme Court, speaking through Shelat, J., observed as under:
No doubt. Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including 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 purpose. 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 it has a sufficient legal interest. Thus, an application for mandamus will not like for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligation owned by a company towards its workmen or to resolve any private dispute. (See Sohan Lal v. Union of India 1957 SCR. 738 : : [1957]1SCR738 . In Regine v. Industrial Court 1965 (1) QB 377, mandamus we refused against the Industrial Court though set up under the Industrial Courts Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference. 'This Court has never exercised a general power' said Bruce, J, in R. v. Lawisham Union 1897 (1) QB 498. 501 'to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties'. Therefore, the condition precedent for the issue of mandamus is that there is one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, Corporation or an inferior tribunal requiring him or them to do a particular thing there in specified which appertains to his or their office and is in the nature of a public duty.
Thus, I am afraid, the issuance of a writ under Article 226 would not be justified to rectify an alleged private wrong consisting of dismissal of the petitioner from service.
20. Since I am not persuaded to take the view canvassed by Miss Shah that the respondent is 'State' it is not necessary for me to consider whether the petition is not maintainable, as there is an alternative statutory remedy under the Bombay Industrial Relations Act. It does appear that the petitioner is ill-advised in resorting to the High Court for a protection under Article 226 of the Constitution, when an alternative statutory remedy was available to him.
21. Since I accept the preliminary contention advanced by the respondent, I am of the view that the present Special Civil Application is not maintainable, and is required to be dismissed.
Consequently, this Special Civil Application is dismissed with no order for costs. Ruts discharged.