V.N. Sinha, J.
1. Heard learned Counsel for the petitioners, the State and the Bihar State Co-operative Marketing Union Limited (hereinafter referred to as 'BISCOMAUN').
2. The aforesaid two contempt applications have been filed asserting that BISCOMAUN has failed to comply the general directions of this Court to pay the admitted retiral dues of the petitioners as directed under order dated 16.8.2004 passed in C.W.J.C.Nos. 9323 of 2004 and 9237 of 2004. Annexure-1 in M.J.C.No. 3055 of 2005. The aforesaid writ petitions have been filed for a direction to the authorities of the BISCOMAUN to pay the retiral dues of the petitioners who served the BISCOMAUN to the best of their ability and superannuated from the service of the BISCOMAUN on different dates indicated in the writ petitions.
3. The authorities of the BISCOMAUN have not disputed the claim of the petitioners about their entitlement for payment of the retiral dues. They, however, contend that presently BISCOMAUN is facing acute financial crisis and even salaries to its regular employees is not being paid on regular basis for the last nine years. From the meagre income available with BISCOMAUN retiral dues are paid in chronological order of seniority as per availability of funds and petitioners should wait for their tern for payment of their retiral dues as petitioner Braj Kishore Prasad superannuated on 31.1.2004 whereas more than hundred employees superannuated earlier to him and unless they are paid, it would not be advisable to release payment in favour of the petitioners. It is further stated that no sooner the dues of Rs. 40 crore with the Agriculture Department of the State Government is cleared by the State Government there shall be no difficulty in releasing the retiral dues of the petitioners and others.
4. It is further pointed out that BISCOMAUN is persuading the State Government for revival of BISCOMAUN and has submitted revival package for obtaining loan so that the activities of the BISCOMAUN may be widened and further income generated so as to enable the BISCOMAUN to clear all its liabilities including the retiral dues of the petitioners.
5. Appreciating the aforesaid submissions of BISCOMAUN, this Court under orders dated 5.4.2007 requested the learned Advocate General to seek the response of the State Government which has been communicated to this Court by filing counter affidavit duly affirmed by Secretary, Department of Co-operatives of the State Government which is dated 16.5.2007 and therefrom it appears that the claim of BISCOMAUN was examined by a Committee of the Department of Agriculture headed by its Additional Secretary and the Committee was not satisfied about the claim as BISCOMAUN was not able to produce documents in support of the claim.
6. As regards submission of the revival package by the BISCOMAUN it was stated in the affidavit that the package was examined on 22.12.2006 by the Committee of Senior Officers of the State Government headed by the Finance Commissioner and the Committee was of the view that the package submitted by the BISCOMAUN was not viable.
7. Learned Counsel for the petitioners together with the counsel for the BISCOMAUN refuted the contents of the affidavit dated 16.5.2007 filed by the present Secretary, Co-operatives with reference to the report submitted by the then Secretary, Co-operativers Sri Amitabh Verma, who under orders dated 6.5.2002 passed in L.P.A.No. 412 of 2002 was appointed Administrator of BISCOMAUN and under orders dated 11.7.2002 was directed to furnish a report before Division Bench of this Court in the said appeal and the report supported by an affidavit is dated 29.8.2002 perusal whereof indicates that receivables of BISCOMAUN from the State Government on account of different schemes implemented as per State Government instructions is Rs. 425,248,314.00 and with reference to the said report it was submitted that with the change of Secretary in the Department of Co-operatives the receivables of BISCOMAUN should not be allowed to disappear.
8. Counsel for the petitioner further pointed out with reference to amended bye-laws of the BISCOMAUN that BISCOMAUN is discharging public functions/ duties as its prime object is promotion of the common interest of its members in conformity with the Co-operative principles for fulfilment of the directives contained in Part-4 of the Constitution of India. In this connection, it was further pointed out that the BISCOMAUN having amended the bye-laws and thereby undertaking upon its shoulders the responsibility to fulfil the directives contained in Part-4 of the Constitution of India its duties are akin to public body. Reference in this connection was made to the case of Greater Bombay Co-operative Bank Ltd. v. United Yarn Tex. Pvt. Ltd. and Ors. reported in 2007 AIR SCW 2325 page-58. It was further pointed out that the authorized share capital of the BISCOMAUN is Rs. Five hundred crores, 99.5 per cent thereof is held by the State Government itself and for better management of the affairs of the BISCOMAUN State Government is always appointing Managing Director in terms of the provisions contained in Sub-section (3) of Section 14 of the Bihar Co-operative Societies Act, 1935. In the circumstances, there should be no difficulty in concluding that the State Government has deep and pervasive control over the affairs of BISCOMAUN which is State within the meaning of Article 12 of the Constitution of India as State Government is not only holding 99.5 per cent share capital but is also controlling its affairs by appointing its Managing Director. Reference in this connection was made to a decision of Hon'ble Supreme Court in the case of Ajay Hasia and Ors. v. Khalid Mujib Sehravardi, reported in : (1981)ILLJ103SC , the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. reported in : [2002]3SCR100 and in the case of Zee Telefilms Ltd. and Anr. v. Union of India and Ors. reported in : AIR2005SC2677 paragraphs 32 and 33.
9. It was further submitted that though right to employment cannot be claimed as a matter of right but after the employment to a post or office is made, be it under the State, its agency, instrumentality, juristic person or private entrepreneur, it is required to be dealt as a public element and workmens' right to be paid his salary/pension cannot be denied on the ground of paucity of fund as salary/pension is the source of livelihood and dignity of person and failure to pay salary/pension to an employee tantamount to violating his right to life enshrined under Article 21 of the Constitution of India. In this connection, reference was made to the judgment of the Hon'ble Supreme Court in the case of Air India Statutory Corporation etc. v. United Labour Union and Ors. reported in : (1997)ILLJ1113SC , paragraph-50 as also to the judgment in the case of Devendra Kumar Singh v. Administrator, Bihar Coop. Mkt. UN. Ltd. and Anr. reported in 2006 (3) PLJR 70 (SC).
10. Having heard counsel for the parties and having perused the pleadings filed by them, I am of the view that the petitioners are the retired employees and their right to receive retiral dues have not been disputed but they have not been paid the retiral dues for the last so many years on account of financial crunch being faced by BISCOMAUN. In the circumstances, there is no difficulty in concluding that they are entitled for payment of retiral dues which is not being paid on account of paucity of fund. In the circumstances, this Court has no option but to direct the BISCOMAUN to pay the pensionary dues of the petitioners at an early date, in any case within three months from the date of receipt/production of a copy of this order as in the evening of their life, petitioners cannot be asked to wait indefinitely for receipt of their retiral dues.
11. The State of Bihar is directed to consider the report of Sri Amitabh Verma, earlier Secretary of the Cooperative dated 29.8.2002 filed before this Court in L.P.A No. 412 of 2002 as according to this Court findings of the Committee headed by the Additional Secretary of the Agriculture Department is a finding recorded by an interested party to the dispute and claim of BISCOMAUN against Agriculture Department of the State be examined by the learned Chief Secretary of the State as BISCOMAUN is an apex Cooperative Institution in which State Government has very high stakes as it has 99.5 per cent share out of the total share capital of BISCOMAUN amounting to Rs. 500 crores. It is in the interest of BISCOMAUN, its retired employees and the Agriculture Department of the State that the dispute between the BISCOMAUN and the Agriculture Department is resolved at the earliest so that the retired employees are paid their retiral benefits at the earliest and BISCOMAUN begins functioning as an agency of the State for securing agricultural development so as to achieve the proposed national target of 4% annual growth in the farm sector and in consideration of such interest, this Court has directed the Chief Secretary to examine and resolve the dispute between the BISCOMAUN and the Agriculture Department within one month from the date of receipt/production of a copy of this order and if any amount is found due to the BISCOMAUN, the same be paid within the same time. This order has been passed taking into account similar directions of the Hon'ble Supreme Court given in the case of Central/State Agencies. Reference in this connection may be made to the orders of the Hon'ble Supreme Court dated 18.2.2003, passed in Civil Appeal No. 8580 of 1994 (Chief Conservator of Forest, Govt. of A.P. v. The Collector and Ors.) and two other reported cases, namely, the case of Oil and Natural Gas Commission and Anr. v. Collector of Central Excise, reported in 1995 Supp (4) Supreme Court Cases 541 and the case of Oil and Natural Gas Commission and Anr. v. Collector of Central Excise, reported in 1992 Supp (2) Supreme Court Cases 432 referred to in the order dated 18.2.2003. The Chief Secretary must conclude the examination within a period of one month from the date of receipt/production of a copy of this order. In the event, petitioners are not paid their retiral dues within the aforesaid period of three months, the Registrar, Co-operative Societies, Bihar is directed to initiate the process to wind up the affairs of the BISCOMAUN, which must be concluded within another three months and report be submitted to this Court.
12. The two contempt applications and all the writ applications are, accordingly, disposed of.