{"id":127065,"date":"2011-11-14T00:00:00","date_gmt":"2011-11-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayeshkumar-vs-krishak-on-14-november-2011"},"modified":"2016-08-31T20:31:52","modified_gmt":"2016-08-31T15:01:52","slug":"jayeshkumar-vs-krishak-on-14-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayeshkumar-vs-krishak-on-14-november-2011","title":{"rendered":"Jayeshkumar vs Krishak on 14 November, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jayeshkumar vs Krishak on 14 November, 2011<\/div>\n
Author: Ks Jhaveri,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/1222920\/2008\t 19\/ 19\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 12229 of 2008\n \n\n \n \n=========================================================\n\n \n\nJAYESHKUMAR\nS PATEL - Petitioner(s)\n \n\nVersus\n \n\nKRISHAK\nBHARATI COOPERATIVE LTD & 3 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nYATIN OZA WITH MS SONAL R SHAH for\nPetitioner(s) : 1, \nMR MANISH R BHATT WITH MS MAUNA M BHATT WITH MS\nHIRAL PANCHAL for Respondent(s) :\n1-4, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 29\/12\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned counsel for the respective parties.\n<\/p>\n
2.\tBy
\nway of this petition, the petitioner has prayed to quash and set
\naside the order dated 08.09.2008 passed by the respondent no.1 and
\nfurther to direct the respondents to reinstate the petitioner in
\nservice on his original post with all backwages and other incidental
\nand consequential benefits arising therefrom.\n<\/p>\n
3.\tThe
\nfacts in brief leading to the filing of the present petition could be
\nset out as under:\n<\/p>\n
3.1\tThe
\npetitioner joined the services of the respondent as Assistant
\nOperator(Production)-Urea on 01.04.1985 on probation period of six
\nmonths and was required to enter a contract of three years with
\neffect from 15.03.1985.  The petitioner was also required to sign a
\nsurety bond.  At the end of probation, the petitioner was confirmed
\nin Grade-J with effect from 15.09.1985.\n<\/p>\n
3.2\tThe
\npetitioner was thereafter promoted to the post of Operator (Urea) on
\n09.08.1988 and confirmed with effect from 01.08.1988.  He was again
\npromoted to the post of Chief Operator (Production) vide order dated
\n18.09.1991.  Vide order dated 18.02.2003, he was again promoted to
\nthe post of Senior Engineer, Grade-G and confirmed on the said post
\nvide order dated 16.01.2004.\n<\/p>\n
3.3\tIt
\nis the case of the petitioner that the petitioner was issued a
\ntransfer order on 16.04.2008 to Vishakhapatnam with a view to see
\nthat the petitioner who was the General Secretary of the KRIBHCO
\nOfficers’ Association does not participate in the protest against the
\n‘control of overtime’ circular issued by the respondents.\n<\/p>\n
3.4\tThe
\npetitioner thereafter joined duty at the respondent no.4 office on
\n28.04.2008, and thereafter proceeded on leave from 03.05.2008 to
\n18.05.2008.  It is the case of the petitioner that due to his
\ndaughter’s upcoming exams he again proceeded on leave from 26.05.2008
\nto 07.06.2008 and the same was recommended by the respondent no.4 and
\nforwarded to respondent no.3.\n<\/p>\n
3.5\tIt
\nis also the case of the petitioner that while on leave during the
\nperiod 26.05.2008 to 07.06.2008, the petitioner fell ill as he was
\nsuffering from acute viral hepatitis and therefore sent a telegram to
\nthe respondent no.3 informing them of his extension of leave.\n<\/p>\n
3.6\tOn
\n12.06.2008, the petitioner received a telegram from the respondent
\nno.4 that his leave application had not been sanctioned and therefore
\nwas asked to report to work immediately.  The petitioner immediately
\non 13.06.2008 sent a telegram to the respondents no. 3 & 4
\ninforming them that he is sick and is not in a position to travel to
\nVishakhapatnam and that therefore he will immediately resume duty on
\nrecovery.\n<\/p>\n
3.7\tPursuant
\nto the said telegram, the respondent no. 4 vide communication dated
\n05.07.2008 asked to produce the medical certificate for his alleged
\nillness and the same was sent by the petitioner.  It is the case of
\nthe petitioner that the petitioner was again sent a letter dated
\n14.08.2008 issued by the Disciplinary Authority stating therein that
\nsince the petitioner had not resumed duty, it would be considered as
\nunauthorized absence and a second medical opinion is required.  The
\npetitioner was therefore directed to appear before the General
\nHospital, Surat on 21.08.2008 for medical examination.\n<\/p>\n
3.8\tThe
\npetitioner vide letter dated 21.08.2008 stated that he was genuinely
\nill and there was no reason for doubting the medical certificates
\nproduced by him.  It was also stated therein that during the said
\nperiod, he was also suffering from acute back pain and was admitted
\nin the hospital from 26.07.2008 to 29.07.2008.  The petitioner also
\nstated therein that under such circumstances it would not be possible
\nfor him to travel to Surat.\n<\/p>\n
3.9\tIt
\nis the case of the petitioner that he once again sent all his medical
\npapers and other relevant records along with letter dated 10.09.2008
\nto the respondent no.1.  Thereafter, on 23.09.2008, the petitioner
\nreceived the order dated 08.09.2008 forwarded by the respondent no.4
\nvide letter dated 17.09.2008 informing the petitioner that his
\nservices have been discharged with immediate effect and one month’s
\npay has been sent in lieu of one month’s notice.  Being aggrieved by
\nthe said action, the present petition is preferred.\n<\/p>\n
4.\tMr.\n<\/p>\n
Yatin Oza, learned Senior Counsel appearing with Ms. Sonal Shah for
\nthe petitioner has submitted that the impugned order dated 08.09.2008
\nis absolutely illegal and arbitrary inasmuch as the said order no
\nwhere states the reason for terminating the services of the
\npetitioner and that too, without giving any opportunity of hearing or
\nwithout giving any substantial reason for bringing an end to 23 years
\nof unblemished and blot-less service record of the petitioner.\n<\/p>\n
4.1\tMr.\n<\/p>\n
Oza has submitted that the entire order is bad in law even on the
\nface of it as no charges have been leveled against the petitioner, no
\nshow cause notice has been issued nor any reasons have been assigned
\nfor imposing such a major penalty and therefore requires to be
\nquashed and set aside.\n<\/p>\n
4.2\tMr.\n<\/p>\n
Oza has further submitted that apart from the order being bad in law,
\nit also suffers from violation of principles of natural justice.  It
\nis submitted that the petitioner was a permanent employee of the
\nrespondent and had been working for 23 years without any adverse
\nremark against him.\n<\/p>\n
4.3\tMr.\n<\/p>\n
Oza has further submitted that the petitioner has been victimized at
\nthe hands of the respondent officers which is evident from the fact
\nthat the petitioner was transferred on 16.04.2008 from Surat to
\nVishakhapatnam without any reason whatsoever.  He has submitted that
\nthe respondent officers were looking for one or other reason so as to
\nstop the petitioner from exposing the irregularities and corrupt
\nmalpractices of the higher officers of the respondent organization.\n<\/p>\n
4.4\tMr.\n<\/p>\n
Oza, in order to support his submissions has relied upon a decision
\nof the Apex Court in the case of Pradeep Kumar Biswas vs. Indian
\nInstitute of Chemical Biology & Ors<\/a> reported in 2002 (5) SCC 111.\n<\/p>\n
5.\tMr.\n<\/p>\n
Manish Bhatt, learned Senior Counsel appearing with Ms. Mauna Bhatt
\nfor the respondents has raised a preliminary objection that a writ
\npetition in the present matter is not maintainable before this Court.
\n He has submitted that the respondent no.1 is neither a ‘State’ under
\nArticle 12 of the Constitution of India nor is an instrumentality of
\nState ‘nor other authorities’ nor is a creation of a statute nor
\ndischarges ‘public function’ and as such a writ petition under
\nArticle 226 of the Constitution of India cannot be preferred against
\nKRIBHCO.\n<\/p>\n
5.1\tHe
\nhas further submitted that the respondent no.1 is a national level
\nmulti state co-operative society, registered under the Multi-State
\nCo-operative Society  Act, 1984 repealed by Multi-State Co-operative
\nSocieties Act, 2002 (hereinafter referred to as MSCS Act). In view of
\nthe said preliminary objections, Mr. Bhatt has submitted that this
\npetition is not maintainable before this Court.\n<\/p>\n
5.2\tMr.\n<\/p>\n
Bhatt has also submitted that the respondent no.1 is not a Government
\nCompany as defined in Section 617 of the Companies Act, 1956.  He has
\ncontended that KRIBHCO is a purely commercial enterprise consisting
\nof and created by and for its members.  The respondent no.1 has been
\nconstituted primarily for the purpose of carrying on commercial
\nactivities in accordance with the Co-operative principles and to
\npromote interests of its co-operative members i.e. Co-operative
\nSocieties and other institutions.  He has therefore submitted that
\nthe respondent no.1 being a co-operative society and a
\nnon-governmental organization is governed by its own registered
\nbye-laws.\n<\/p>\n
5.3\tMr.\n<\/p>\n
Bhatt has further submitted that under Section 38(2) of the Act the
\nfinal authority of the Society vests in the General Body of the
\nSociety in which the non-government members exceeds the government
\nmembers and that even amongst the Board of Directors, there are only
\nthree government nominated directors.\n<\/p>\n
5.4\tHe
\nhas submitted that section 31(c) of the MSCS Act provides that each
\nmember is entitled to only one vote in the affairs of the respondent
\nno.1 irrespective of the extent of share holding and that this is a
\nmarked departure from the principles of Company Law.\n<\/p>\n
5.5\tThe
\nother contention raised by Mr. Bhatt for the respondents is that
\nSection 35 of the MSCS Act read with bye-law 8(a) of respondent no.1
\nauthorises the respondent no.1 to retire partially or fully the
\nequity shares held by Government of India and that pursuant to the
\ndecision of the Board of Directors of respondent no.1, the respondent
\nno.1 has already taken steps to repatriate the equity shares to the
\nGovernment of India.  It is submitted that Rs. 60.29 crores out of
\nRs. 329 crores of the equity of Government of India held in
\nrespondent no.1 already stands repatriated to the Government of India
\nas per the Books of Accounts of respondent no.1 closed for financial
\nyear ending March 2006.\n<\/p>\n
5.6\tMr.\n<\/p>\n
Bhatt has submitted that the Government only receives the dividend
\njust like other shareholders and that the shareholding is not a
\ndeterminative factor but only one of the factors which are required
\nto be considered.\n<\/p>\n
5.7\tIt
\nis submitted that the respondent meets all its expenditures from its
\nown resources and no part of the expenditure is borne or provided for
\nby the government or audited by the government.  The surplus reserve
\nfund of respondent no.1 as on 31.03.2008 is Rs. 1982.43 crores which
\nspeaks in itself that the respondent no.1 is self sustainable and is
\nnot dependent on any finance from outside including Government of
\nIndia.\n<\/p>\n
5.8\tThe
\nother contention raised by Mr. Bhatt for the respondents is that
\nemployees are governed by own service rules framed by Board of
\nDirectors of KRIBHCO  under section 49(a) of MSCS Act read with bye
\nlaw 47.  It is submitted that the respondent no.1 is in the business
\nof manufacture and sale of fertilizer and that it is not a monopoly
\nore a statutory function.\n<\/p>\n
6.\tMr.\n<\/p>\n
Bhatt in support of his submissions has relied upon various decisions
\nof the this Court and other high courts wherein it is held that
\nKRIBHCO is not a State.\n<\/p>\n
R.K.\n<\/p>\n
\tMishra & Others vs. Krishak Bharati Cooperative Limited &
\n\tOthers reported in 2002(3) AD (Delhi) 663.\n<\/p>\n
<\/p>\n
M\/s.\n<\/p>\n
\tL.K.L Construction Company vs. The General Manager (Prodn.) &
\n\tOthers<\/p>\n
<\/a> delivered by this Court in SCA 259 of 1994. <\/p>\n
S.\n<\/p>\n
\tVijayan vs. Krishak Bharati Co-operative Ltd. delivered by this
\n\tCourt in SCA 1830 of 1986.\n<\/p>\n
Ashok
\n\tkumar and Others vs. Union of India and Others with Sunil Shastry
\n\tand Others vs. Union of India and Others<\/a> delivered by Allahabad High
\n\tCourt in CMWP No. 21772 of 2006.\n<\/p>\n
6.1\tMr.\n<\/p>\n
Bhatt has also relied on some other decisions of other high courts
\nwherein it has been held that IFFCO is not a state.  The same are as
\nunder:\n<\/p>\n
Bihar
\n\tState Co-operative Marketing Union Ltd and Another vs. Indian
\n\tFarmers Fertilizer Co-operative Ltd. And others<\/a> delivered by Patna
\n\tHigh Court in Civil Writ Jurisdiction Case No. 7303 of 1993.\n<\/p>\n
Chhitar
\n\tSingh vs.  The Indian Farmers Fertilizer Co-operative Ltd. And
\n\tothers delivered by the Jaipur Bench of Rajasthan High Court in
\n\tCivil Writ Petition No. 139 of 1986.\n<\/p>\n
Shyam
\n\tLal vs. IFFCO and others delivered by the Allahabad High Court in
\n\tCivil Misc. Writ Petition No. 6143 of 1984.\n<\/p>\n
Laxman
\n\tSingh vs.  Indian Farmers Fertilizer Co-operative Ltd. and others
\n\tdelivered by Delhi High Court in Civil Writ Petition No. 2024 of
\n\t1990.\n<\/p>\n
7.\tMr.\n<\/p>\n
Bhatt has submitted that as far as the decision in the case of
\nPradeepkumar (supra) is concerned, the Government of India has no
\ndeep and pervasive control which has been supported by  the affidavit
\nin reply dated 25.07.2005 filed by the Government of India in
\nproceedings before the Delhi High Court.\n<\/p>\n
7.1\tMr.\n<\/p>\n
Bhatt has also drawn the attention of this Court to the letter dated
\n07.06.1993, Annexure 5 to the petition, wherein the stand taken by
\nthe Union of India is that since IFFCO and KRIBHCO are Cooperative
\nsocieties and not PSUs, the dispute within is required to be settled
\nas per the existing guidelines followed in the respective
\norganization.  He has submitted that therefore it can be understood
\nthat the contention of the petitioner is misconceived and the
\npetition is not required to be entertained.\n<\/p>\n
8.\tMr.\n<\/p>\n
Yatin Oza, though contested the matter on merits, he has subsequently
\nrequested this Court to decide the matter only on the preliminary
\nissue of maintainability of this writ petition.  He has controverted
\nthe preliminary objections raised by the respondent and submitted
\nthat the respondent discharges the functions of the ‘State’ or its
\ninstrumentality and that the Government has a hold over the
\nrespondent organization and has control on the working of the
\nrespondent and the respondent is nearly a projection of the
\nGovernment.\n<\/p>\n
8.1\tIn
\norder to substantiate the said submission, Mr. Oza has submitted that
\nperusal of the agreement between two sovereigns i.e. the Union of
\nIndia through the respondent society itself establishes the said
\nfact.\n<\/p>\n
8.2\tMr.\n<\/p>\n
Oza has also submitted that since 1979 onwards the definition of
\n‘State’ as envisaged under Article 12 of the Constitution has been
\nexpanded to also cover various limbs like the respondent which
\ncarries out public function delegated by the Government, wherein the
\nGovernment is behind the veil.\n<\/p>\n
8.3\tHe
\nhas further submitted that if the bye-laws of the respondent
\norganization are perused, Clause 7 clearly states  that the major
\nshare capital i.e. Around Rs. 445 crores out of the total share
\ncapital of Rs. 500 crores is held by the Government of India and the
\nGovernment undertaking corporations.\n<\/p>\n
8.4\tHe
\nhas submitted that even if the contention in para 7 of the reply is
\nconsidered, it is clear that the Government of India, Department of
\nFertilizers holds the maximum share capital of the total paid up
\nshare capital of the respondent no.1 to the extent of 67.59% and that
\ntherefore in view of the bye-laws and the financial holding of the
\nCentral Government in the respondent no.1 organization, it clearly
\ndisplays that the respondent no.1 is a projection of the Government.\n<\/p>\n
8.5\tMr.\n<\/p>\n
Oza has also submitted that the Board of Directors of the respondent
\nno.1 mainly consists of government officials\/officers who are given
\nappointment in the respondent no.1 by the Government and with the
\napproval of the Government of India.  He has emphasized on the fact
\nthat the Managing Director of the respondent no.1, in whom the
\nexecutive and administrative powers vests and who is the executive
\nhead of the organization is appointed by the Government of India.\n<\/p>\n
8.6\tMr.\n<\/p>\n
Oza has further submitted that the Central Vigilance Commission which
\nnormally monitors and vigils the day-to-day functioning of the
\ngovernment organizations also monitors the functioning of the
\nrespondent no.1 organization and that the same is evident from the
\nfact that the complaint sent by the petitioner against some higher
\nofficers of the respondent no.1 department has been entertained by
\nthe Central Vigilance Commission for which a communication dated
\n13.10.2008 has  been sent to the petitioner.\n<\/p>\n
8.7\tHe
\nhas submitted that all this shows that the Government is also
\nsupervising, monitoring and investigating into the irregularities
\ncommitted by any officers of the respondent no.1 and if this be so,
\nthe service conditions of the employees of KRIBHCO are completely
\nunder the control of the Government of India, for which if a
\nchallenge is made in a writ petition, the said writ petition deserves
\nto be entertained.\n<\/p>\n
9.\tThis
\nCourt has gone through the materials placed on record by each side.
\nWith the consent of the parties, this Court is taking up this matter
\nonly qua consideration of the preliminary issues in the petition.
\nThis Court has also perused the various decisions relied upon by both
\nthe sides in support of their cases.  At this point it would be
\nrelevant to go through the decision of this Court in the case of
\nM\/s. L.K.L Construction Company vs. The General Manager (Prodn.) &
\nOthers<\/a> in SCA 259 of 1994 more
\nparticularly paras 14 and 15 which read as under:\n<\/p>\n
 14.
\nHaving given thoughtful and anxious consideration to various
\ndecisions cited by the learned counsel for the parties and
\nparticularly binding decisions of this Court as well as of the
\nHon’ble Supreme Court, I find considerable force in the preliminary
\nobjection raised by the learned counsel for the respondents that
\nKRIBHCO cannot be said to be  State  within the meaning of
\nArticle 12 of the Constitution of India.  Almost in similar
\ncircumstances, GSFC and IFFCO were not held to be  State .  So
\nfar as IFFCO is ocncerned, the point is concluded by a decision of
\nthis Court in Special Civil Application No. 2025 of 1993.  As a
\nsingle Judge, I am bound by the said decision.  No doubt, the learned
\ncounsel for the petitioners strongly contended that the approach
\nadopted by the learned single Judge was not in consonance with law
\ninasmuch as according to them, the learned single Judge has at more
\nthan on e place observed in the judgemnet that the test of control by
\nthe Government is a  crucial  and  decisive factor   and a
\n clinching circumstance  in deciding whether the respondent can
\nbe said to be  State  under Article 12 of the Constitution.  It
\nwas also submitted that as held by the Hon’ble Supreme Court in the
\ncase of R.D. Shetty vs. International Airport Authority, Ajay Hasiya<\/a>
\nvs. Khalid Mujib, Som Prakash Rekhi vs. Union of India,  Central
\nInland Water Transport Corporation<\/a> vs. Brojo Nath Ganguly and M.C.
\nMehta vs. Union of India,<\/a> referred to above, no circumstance can be
\nsaid to be a clinching one and no factor can be described as crucial.
\n It is cumulative effect of all the circumstances that makes an
\nauthority  State  under Article 12 of the Constitution.  In my
\nopinion, however, the learned single Judge considered all the factors
\nand circumstances and came to the conclusion that IFFCO  cannot be
\nsaid to be  State  within the meaning of Article 12.  The learned
\ncounsel for the respondent has prepared a comparative table of
\nKRIBHCO & IFFCO showing the Constitution of the Board of
\nDirectors, functions, powers and the duties of the Managing Director
\nas well as the Board of Directors, control by the Government,
\nfunctions to the performed by them, financial assistance to those
\ninstitutions and other relevant factors.  Looking to the constitution
\nof the authorities, functions to be performed by them, powers to be
\nexercised, duties to be discharged, as well as the control of the
\nGovernment, it is clear that KRIBHCO is established almost on the
\nsame line on which IFFCO is established.  The principle laid down in
\nIFFCO by this Court, therefore, applies with equal force to KRIBHCO
\nalso.\n<\/p>\n
15.\tAgain,
\nthe point is finally concluded by a decision of the Division Bench of
\nthis Court in Letters Patent Appeal No. 375 of 1985.  The ratio laid
\ndown by the Division Bench applies with full force to the present
\ncase.  In that case, the Division Bench of this Court held that
\nGujarat State Fertilizers Co. (GSFC) is not  State  within the
\nmeaning of Article 12 of the Constitution.  The Division Bench
\nconsidered various tests laid down by the Hon,ble Supreme Court, and
\nheld that no petition would lie against FSFC.  I am in respectful
\nagreement with the view taken by the Division Bench of this Court and
\nhold that KRIBHCO cannot be said to be  State  under Article 12
\nof the Constitution.\n<\/p>\n
9.1\tMr.\n<\/p>\n
Oza has contended that Clause 7 clearly states  that the major share
\ncapital of respondent no.1 corporation i.e. Around Rs. 445 crores out
\nof the total share capital of Rs. 500 crores is held by the
\nGovernment of India and the Government undertaking corporations.
\nHowever, as a result of perusal of records, this Court is not keen to
\naccept the said contention intoto inasmuch as  section 31(c) of the
\nMSCS Act provides that each member is entitled to only one vote in
\nthe affairs of the respondent no.1 irrespective of the extent of
\nshare holding.  Further it is required to be noted that Rs. 60.29
\ncrores out of Rs. 329 crores of the equity of Government of India
\nheld in respondent no.1 already stands repatriated to the Government
\nof India as per the Books of Accounts of respondent no.1 closed for
\nfinancial year ending March 2006.\n<\/p>\n
9.2\tFurther,
\nit appears that the membership of KRIBHCO is open to persons who are
\ncovered under section 25 of MSCS Act, 2002 read with bye-laws No. 6
\nof KRIBHCO.  In that view of the matter, it cannot be said that the
\nmembers of KRIBHCO are mainly Government undertaking.  The petitioner
\nhas submitted that the final decision with regard to the employees is
\ntaken by the Government.  However, from the records it appears that
\nany voluntary adoption of instructions of CVC meant for Government
\nUndertakings\/PSUs does not bring the respondent no.1 within the
\nmeaning and scope of Article 12 of the Constitution of India.\n<\/p>\n
9.3\tThe
\npower of appointment and removal of the Directors including Chief
\nExecutive Officer of KRIBHCO is vested in the Board of Directors of
\nKRIBHCO by virtue of Section 49 in MSCS Act and not in the Government
\nof India as claimed by the petitioner.  The respondent no.1 has
\nvoluntarily accepted officers of Government of India on deputation as
\nCVO of KRIBHCO.  It is borne out that the power of appointment of CVO
\nof KRIBHCO is vested in the Board of Directors of KRIBHCO and not
\nwith the Government of India.  The said fact is also borne out from
\nthe letter No. 11015\/8\/75L&M Vol. IV dated 21.05.2003.\n<\/p>\n
10.\tIt
\nis also required to be noted that the service conditions of the
\nemployees of KRIBHCO is regulated by its own service rules framed by
\nKRIBHCO and power to frame service conditions including appointments
\nand removal of employee of KRIBHCO is vested in the Board of
\nDirectors of KRIBHCO bu virtue of Section 49 of MSCS Act read with
\nbye-law no. 47 of KRIBHCO and therefore the Government of India or
\nthe Office of CVC has no authority to supervise, monitor or
\ninvestigate into an alleged irregularity of an employee of Respondent
\nno.1.\n<\/p>\n
11.\tAs
\na result of hearing and perusal of records, this court is of the
\nopinion that the most important of all the decisive factors shall be
\nthe questions of society being instrumentality of State and deep and
\npervasive control of STATE.  Here it has to be kept in mind that the
\nmere fact that a company or a co-operative society has to respect
\ncertain laws, is to be guided by public officers, would not mean that
\nthey have become instrumentality of the State.  The impression of a
\nwelfare state is also in the idea that people are not easily cheated
\nin the name of investment in a company and when their money is
\ninvested, there is certain amount of trust as well.  It is with this
\nmind possibly that Company law and the Co-operative Societies Act
\nhave been framed.  Protection of such interest would not make the
\nCo-operative Society or Company an instrumentality of the State.  The
\nsaid issue is also decided by various benches of this Court more
\nparticularly, in the case of M\/s. L.K.L Construction Company Ltd.
\n(supra) as well as S. Vijayan (supra).  In that view of the matter,
\nthe petition under Article 226 of the Constitution of India against
\nKRIBHCO is not maintainable.\n<\/p>\n
12.\tAs
\nregards the question of deep and pervasive control of the Government
\nof India, from the materials placed on record, more particularly, the
\naffidavit of the Government of India dated 25.07.2005 filed as
\nAnnexure-4,  it is borne out that the Union of India has no control
\nin the functioning of the multi state cooperative societies. The
\nmembership and shareholding of the society shows that only one vote
\nis given to each member of the cooperative society.  Though the Union
\nof India has a financial stake but it has only one vote in the
\nGeneral Body and as such has no effective or pervasive control of the
\nsociety.  The finance given by the Government of India is also being
\nrepatriated to the Government by the society in terms of the
\namendment carried out in the Multi-state Cooperative Societies Act.
\nEarlier under the provisions of section 44(4) of the 1984 Act, it was
\nobligatory on the part of the society to seek prior approval of the
\nGovernment for appointment of its Chief Executive and Functional
\nDirectors.  However, u\/s 51 of the 2002 Act, the Chief Executive
\nOfficer of  the Society is to be appointed by the Board and no prior
\napproval of the Government is necessary.\n<\/p>\n
12.1\tA
\nperusal of the bye-laws, more particularly, bye-law no. 27 of KRIBHCO
\nprovides that the final authority of the society shall vest in the
\nGeneral Body of the society constituted in accordance with the
\nbye-laws. Even amongst the Board of Directors, there are only 3
\nGovernment nominated Directors.\n<\/p>\n
13.\tIn
\nthat view of the matter, this court is of the opinion that the
\nrespondent society cannot be said to be a  State , other
\nauthority or instrument or instrumentality of the State within the
\nmeaning of Article 12 of the Constitution of India and that there is
\nno deep or pervasive control of the Government in the respondent
\nSociety.  Since the petition is not maintainable before this Court,
\nit is required to be dismissed without expressing any opinion on
\nmerits.\n<\/p>\n
14.\tIn
\nthe result, the petition is dismissed.  It is made clear that this
\nCourt has not expressed any opinion on merits about the order dated
\n08.09.2008 qua the discharge or territorial jurisdiction.  The same
\nshall be decided by the competent authority\/court under the law.  No
\norder as to costs.\n<\/p>\n
(K.S.\n<\/p>\n
JHAVERI, J.)<\/p>\n
Divya\/\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Jayeshkumar vs Krishak on 14 November, 2011 Author: Ks Jhaveri, Gujarat High Court Case Information System Print SCA\/1222920\/2008 19\/ 19 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12229 of 2008 ========================================================= JAYESHKUMAR S PATEL – Petitioner(s) Versus KRISHAK BHARATI COOPERATIVE LTD & 3 – Respondent(s) ========================================================= […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-127065","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJayeshkumar vs Krishak on 14 November, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jayeshkumar-vs-krishak-on-14-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jayeshkumar vs Krishak on 14 November, 2011 - 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