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Patna High Court
Arun Kumar Chaudhary vs The State Of Bihar And Ors on 11 July, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5530 of 2017
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Arun Kumar Chaudhary Son of Late Krishna Kant Choudhary, Resident of
vill. P.O. Kanholi, Via - Sakri, P.S. Manigachhi, District - Darbhanga
... ... Petitioner/s
Versus
1. The State Of Bihar and Ors
2. The Principal Secretary, Co - Operative Department, Bihar
3. The Registrar, Co - Operative Department, Bihar, Patna
4. The Managing Director, BISCOMAN, Biscoman Bhawan, Gandhi Maidan,
Patna
5. The Special Officer Administrator , BISCOMAN, Biscoman Bhawan,
Gandhi Maidan, Patna
6. The Sub - Divisional Officer, BISCOMAN, Darbhanga
7. The Senior Area Officer, BISCOMAN, Samastipur
8. The Area Officer, BISCOMAN, Darbhanga
9. The Secretary, BISCOMAN Bhawan, Gandhi Maidan
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Jawed Gaffar Khan, Adv.
Mr.Arun Kumar Prasad, Adv.
Mr. Anuj Kumar, Adv.
For the Respondent/s : Mr. Mahtab Alam, AC to SC20
For the BISCOMAUN : Mr. Vikas Kumar, Adv.
Mrs. Aradhana Kumari, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 11-07-2025
Heard Learned Counsel for the petitioner, learned
counsel for the State and Learned Counsel for the
BISCOMAUN.
2. Learned Counsel for the petitioner submits that the
present writ application has been filed with the following
Patna High Court CWJC No.5530 of 2017 dt.11-07-2025
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reliefs:-
A) For quashing the memo No.
Est/128/M/225 dated 13.04.2013 issued by the
Managing Director, BISCOMAN (Respondent No.
3) which the by petitioner has been given
Compulsory Retirement from the post of Assistant
Store Manager, BISCOMAN.
(B) For quashing the entire departmental
proceeding and memo no. EST/128/M/162 dated
10.04.2013
issued by Special Officer
(Administration) BISCOMAN.
(C) For directing the respondents to pay
full salary of the suspension period and other
admissible and consequential dues to the
petitioner.
(D) For directing the State respondent
no.-1 and 2 to direct the BISCOMAUN authorities
to take final decision in the matter of petitioner.
3. Counsel further submits that the action has been
taken under the Bihar Government Servant (Classification,
Control and Appeal) Rules, 2005 (hereinafter referred to as
CCA Rules, 2005), which is apparent from the order impugned.
4. Counsel for the BISCOMAUN submits that in the
light of the various decision passed by this Hon’ble Court i.e.,
order dated 22.07.2024 passed in C.W.J.C. No.16990 of 2022,
this writ petition is not maintainable against the BISCOMAUN.
Patna High Court CWJC No.5530 of 2017 dt.11-07-2025
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5. Upon perusal of the said order, it transpires that this
Court has made a series of discussions contained in paragraph
Nos.4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 which states as
follows:-
4. The petitioners sought a direction
from this Court to ensure their post retiral
benefit(s) in view of the decision of the Hon’ble
Supreme Court in Ashok Kumar Ram v. The State
of Bihar and Others [Special Leave Petition (Civil)
Diary No. (s) 6011 of 2018] arising out of
judgment dated 12.07.2017 in M.J.C. No. 5719 of
2013, passed by the learned co-ordinate Bench of
this Court and in view of Memo No. 796 dated
02.02.2018 relating to scheme formulated for
Employees of Board/Corporation/Society issued by
the Department of Finance, Government of Bihar,
Patna.
5. A preliminary objection was raised
with regard to the maintainability of the writ
petition in view of the various judgments rendered
by the different Benches of this Court as well as the
learned Division Bench of this Court in L.P.A. No.
983 of 2023 and other analgous cases. Heavy
reliance has also been placed on a judgment
passed by the Special Bench of this Court in the
case of Organiser Dehri CD & CM Union vs.State
of Bihar and Others [2014 (1) PLJR 695].
6. The learned counsel for the
BISCOMAUN adverting to the judgments noted
hereinabove, vigorously contended that the
BISCOMAUN neither being a State under Article
12 of the Constitution of India nor discharging any
public function, a writ petition under Article 226 of
the Constitution is not maintainable.
Patna High Court CWJC No.5530 of 2017 dt.11-07-2025
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7. The learned counsel for the
BISCOMAUN also placed reliance on a judgment
rendered by a Division Bench of this Court in the
case of The Chairman Bihar State Co-operative
Marketing Union Employees Provident Fund
Trustee Committee and Another v. Ram Swarth
Singh and Others [LPA No. 119 of 2015]. The
learned Division Bench highlighting the dictum of
the Special Bench of this Court in Organiser Dehri
CD & CM Union (supra) held that a Body is
performing a “public function” when it seeks to
achieve some collective benefit for the public or a
section of the public and is accepted by the public
or that section of the public as having authority to
do so. When the Rules contemplate contribution
from the employer and employee, the
BISCOMAUN is not performing a public function
as such collection of Provident Fund Dues is not
for the benefit of public or a section of public, but
for its own employees; thus does not perform
public function.
8. The learned Division Bench while
holding that the invocation of jurisdiction against
BISCOMAUN is not tenable, in paragraph-8 of its
judgment observed as follows:
“8. The Special Bench in The Organizer,
Dehri C.D. & C.M. Union Limited‘s case (supra)
returned a finding that BISCOMAUN is not
performing any public duty or public function for
and on behalf of the Government. The cumulative
effect is that no deep and pervasive control nor
public duty or public function is being performed
by the BISCOMAUN and the writ application is not
maintainable.”
9. The learned counsel for the
BISCOMAUN further drew the attention of this
Court to a decision rendered in The Managing
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Director v. The State of Bihar and Others [L.P.A.
No. 983 of 2023] and other analogous cases,
wherein the learned Division Bench of this Court
has been pleased to set aside the order of the
learned Single Judge and allowed the appeal by
holding that “the fact remains that by the judgment
of the Special Bench cited above, there can be no
writ issued against a Cooperative Society. We find
absolutely no reason to sustain the impugned
judgment of the learned Single Judge and we set
aside the same, allowing the appeal and rejecting
the MJC petition.”
10. In the afore-noted case, the
employees of the BISCOMAUN placed heavy
reliance on a judgment of the Hon’ble Apex Court
in Ram Chandra Singh. However, the learned
Division Bench with all respect to the
pronouncement of the Apex Court held as follows:
“8. Be that as it may, we are of the
opinion that the judgment of the Hon’ble Supreme
Court does not, at all apply. We cannot discern the
facts of the case from Annexure-13 judgment of the
Hon’ble Supreme Court, in the Special Leave to
Appeal which is produced at Annexure-13 in the
writ petition. Ram Chandra Singh had filed the
Special Leave Petition in which the State prayed
before Hon’ble Supreme Court for making payment
of the dues of the petitioner in twelve equal
installments which was directed to be made in
eight equal installments with interest @ 6 per cent
per annum. There is no declaration of law in the
judgment and it does not have the sheen of a
binding precedent. Without reference to the facts,
there cannot be a direction issued as was done by
Hon’ble Supreme Court, which was on specific
prayer made by the State to have a quietus to the
issue. In such circumstances, neither the order of
Patna High Court CWJC No.5530 of 2017 dt.11-07-2025
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Division Bench, in the writ petition filed by the
petitioner himself, come to the aid of the
petitioner.”
11. On the other hand, the learned
counsel for the petitioner placed reliance on a
judgment rendered by a Division Bench of this
Court in Rabindra Nath Mishra v. The State of
Bihar and Others [L.P.A. No. 1024 of 2018],
wherein the respondents were directed to make
payment of post retiral dues of the petitioner along
with the statutory interest. It is also contended that
the amount of retiral dues of the petitioner is the
property guaranteed under Article 300A of the
Constitution of India and for that the petitioner has
remedy under Article 226 of the Constitution of
India.
12. Reliance has also been placed on a
judgment rendered by the Hon’ble Supreme Court
in Tukaram Kana Joshi and Others through the
Power of Attorney Holder v. M.I.D.C. and Others
[Civil Appeal No. 7780 of 2012 arising out of SLP
(C) NO. 2418 of 2012]. It is also the contention of
the learned counsel for the petitioner that different
Benches of this Court in various cases have
directed the BISCOMAUN to ensure payment of
post retiral dues chronologically in accordance
with the date of retirement of its employee(s).
13. This Court has carefully heard the
rival contentions of the parties on the point of
maintainability of the writ petitions.
14. Having gone through the
judgments/orders cited by the respective counsels,
this Court finds that some of writ petitions were
entertained by different Benches and certain
directions were issued for payment of retiral
benefits. But, admittedly, in those cases, the issue
Patna High Court CWJC No.5530 of 2017 dt.11-07-2025
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of maintainability was not addressed. Reliance of
the petitioners on the order of the Hon’ble Supreme
Court in the case of Ashok Kumar Ram v. The State
of Bihar and Others, Special Leave Petition (Civil)
Diary No. (s) 6011 of 2018 is arising out of
judgment and order dated 12.07.2017 passed in
MJC No. 5719 of 2013, wherein the Hon’ble
Supreme Court having found the direction of this
Court to ensure payment of outstanding amount,
directed the BISCOMAUN to pay the amount along
with interest, failing which it will be a case of
aggravated contempt.
6. From the above mentioned paragraphs of the said
order, it has been held finally that the BISCOMAUN is not a
State defined under Article 12 of the Constitution of India and
nor performing any public duty or public function for and on
behalf of the government. The cumulative effect is that no deep
and pervasive control nor public duty or public function is being
performed by the BISCOMAUN and therefore, the writ
application is not maintainable.
7. In the light of the consistent decision of this
Hon’ble Court mentioned above, this Court restrains himself for
issuance of any writ in this matter against the BISCOMAUN.
But on other hand, it transpires to this Court that the orders
which petitioner has challenged, shall be considered under the
CCA Rules, 2005 as the statutory appeal is available for the
petitioner.
Patna High Court CWJC No.5530 of 2017 dt.11-07-2025
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8. Hence, the present writ petition is hereby dismissed
granting liberty to the petitioner to avail his remedy of the
statutory appeal before the appropriate authority under CCA
Rules, 2005.
9. Delay, if any, in filing the appeal, is hereby directed
to be condoned.
10. With the aforesaid liberty, the present writ
application stands dismissed.
(Dr. Anshuman, J.)
Prakashmani/-
AFR/NAFR
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