Uttarakhand High Court
SPA/345/2020 on 18 June, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:5093-DB
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGE'S ORDERS
No.
and Registrar's
order with
Signatures
SPA/345/2020
Hon'ble Manoj Kumar Tiwari, J.
Hon’ble Subhash Upadhyay, J.
1. Mr. Kailash Chandra Tewari, learned
counsel for the appellant.
2. Mr. Mahavir Kohli, learned counsel
for the respondent.
3. There is delay of 1330 days in filing
the appeal. Notice was issued to the
respondents on the delay condonation
application vide order dated 13.01.2021;
however, no objection is filed by them.
4. For the reasons indicated in the
delay condonation application, delay in
filing the appeal is hereby condoned.
Accordingly, the delay condonation
application (CLMA No. 11473 of 2020) is
allowed.
5. This intra-court appeal is directed
against the final order dated 24.04.2017
passed by learned Single Judge in WPSS
No. 829 of 2013. The impugned order is
extracted below for ready reference:-
“Mr. Bhupesh Kandpal, Advocate for the
petitioner.
Mr. B.P.S. Mer, Brief Holder for the State.
Mr. K.C. Tiwari, Advocate for the
respondent no.1.
Heard.
Petitioner is claiming the parity with the
employees of the State Government for the
release of payment of salary. This plea
cannot be accepted. Petitioner is the
employee of the society and not of the State
Government.
However, the employer is directed at least
to pay the minimum wages, fixed by the
2025:UHC:5093-DB
State Government to the petitioner under
the Minimum Wages Act, within ten weeks
from today.
The writ petition is disposed of.”
6. Learned counsel for the appellant
submits that respondent no. 1 (writ
petitioner) was engaged on fixed
honorarium in Large Multi Purpose
Cooperative Society Ltd., Devdung,
Purola, District Uttarkashi in the year
1986.
7. It is contended on behalf of the
appellant that initially honorarium at the
rate of ₹200/- per month was paid to
such employees, which has now been
increased to ₹6,000/- per month. He
further submits that financial condition of
Cooperative Society is precarious and if
the Society is made to pay minimum
wages, in terms of final order passed by
learned Single Judge, it will not be in a
position to carry on its activities.
8 He further submits that the stand
taken by Society in its counter affidavit
was not at all considered. He further
submits that Society in question is a
Primary Cooperative Society which is not
receiving any financial aid from the State
or the Central Government and it is
meeting its expenses from its own
resources, therefore, writ petition would
not be maintainable against the Society,
however, this aspect was not considered
although pleading to this effect was
made in para 3(iii) of the counter
affidavit.
9. We find substance in the contention
raised by learned counsel for the
appellant. The writ petition filed by
employees against a Cooperative Society
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would not be maintainable. Hon’ble
Supreme Court in the case of S.S. Rana
vs. Registrar, Cooperative Societies &
another, reported in (2006) 11 SCC 634,
has discussed the legal position
regarding maintainability of writ petition
against a Primary Cooperative Society.
Relevant para of the said judgment, are
extracted below:-
“10. It has not been shown before us 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 to statutory functions or public functions?
and (4) Can it be characterised as public authority?
11. Respondent 2, the Society does not
answer any of the aforementioned tests. In the
case of a non-statutory society, the control
thereover would mean that the same satisfies the
tests laid down by this Court in Ajay
Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC
722 : 1981 SCC (L&S) 258] . [See Zoroastrian
Coop. Housing Society Ltd. v. Distt. Registrar,
Coop. Societies (Urban) [(2005) 5 SCC 632] .]
12. It is well settled that general regulations
under an Act, like the Companies Act or the
Cooperative Societies Act, would not render the
activities of a company or a society as subject to
control of the State. Such control in terms of the
provisions of the Act are meant to ensure proper
functioning of the society and the State or
statutory authorities would have nothing to do with
its day-to-day functions.
13. The decision of the seven-Judge Bench of
this Court in Pradeep Kumar Biswas [(2002) 5 SCC
111 : 2002 SCC (L&S) 633] whereupon strong
reliance has been placed, has no application in the
instant case. In that case, the Bench was deciding
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a question as to whether in view of the
subsequent decisions of this Court, the law was
correctly laid down in Sabhajit Tewary v. Union of
India [(1975) 1 SCC 485 : 1975 SCC (L&S) 99]
and if not whether the same deserved to be
overruled. The majority opined that the Council of
Scientific and Industrial Research (CSIR) was
“State” within the meaning of Article 12 of the
Constitution of India. This Court noticed the
history of the formation thereof, its objects and
functions, its management and control as also the
extent of financial aid received by it. Apart from
the said fact it was noticed by reason of an
appropriate notification issued by the Central
Government that CSIR was amenable to the
jurisdiction of the Central Administrative Tribunal
in terms of Section 14(2) of the Administrative
Tribunals Act, 1985. It was on the aforementioned
premises, this Court opined that Sabhajit
Tewary [(1975) 1 SCC 485 : 1975 SCC (L&S) 99]
did not lay down the correct law. This Court
reiterated the following six tests laid down in Ajay
Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC
722 : 1981 SCC (L&S) 258] : (Pradeep Kumar
Biswas case [(2002) 5 SCC 111 : 2002 SCC (L&S)
633] , SCC pp. 149-50, para 85)
“(1) One thing is clear that if the entire
share capital of the corporation is held by
Government, it would go a long way towards
indicating that the corporation is an
instrumentality or agency of Government.
(2) Where the financial assistance of the
State is so much as to meet almost the entire
expenditure of the corporation, it would afford
some indication of the corporation being
impregnated with governmental character.
(3) It may also be a relevant factor …
whether the corporation enjoys monopoly status
which is State-conferred or State-protected.
(4) Existence of deep and pervasive State
control may afford an indication that the
corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of
public importance and closely related to
governmental functions, it would be a relevant
factor in classifying the corporation as an
instrumentality or agency of Government.
(6) ‘Specifically, if a department of
Government is transferred to a corporation, it
would be a strong factor supportive of this
inference’ of the corporation being an
instrumentality or agency of Government.”
This Court further held: (Pradeep Kumar Biswas
case [(2002) 5 SCC 111 : 2002 SCC (L&S) 633] ,
SCC p. 134, para 40)
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“40. The picture that ultimately emerges is
that the tests formulated in Ajay Hasia [(1981) 1
SCC 722 : 1981 SCC (L&S) 258] are not a rigid
set of principles so that if a body falls within any
one of them it must, ex hypothesi, be considered
to be a State within the meaning of Article 12.
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 the body is a
State within Article 12. On the other hand, when
the control is merely regulatory, whether under
statute or otherwise, it would not serve to make
the body a State.””
10. For the aforesaid reason, special
appeal is allowed. Impugned final order
dated 24.04.2017 is set aside. However,
respondent no. 1 shall be at liberty to
make representation to the Competent
Authority for ventilation of his grievance.
(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.)
18.06.2025Aswal
NITI RAJ
Digitally signed by NITI RAJ SINGH
ASWAL
DN: c=IN, o=HIGH COURT OF
UTTARAKHAND, ou=HIGH COURT OF
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st=UTTARAKHAND,
serialNumber=44EB54CBF00B7698CB6ASWAL
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ASWAL
Date: 2025.06.18 23:45:54 -07’00’
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