Exhausting The Statutory Remedies Is Of Paramount Importance. Writ Petition Can Be Entertained In A Routine Manner, In Respect Of The Order Passed By The Origin v. The Deputy Commissioner Of Income Tax In W.p

THE HIGH COURT OF JUDICATURE AT MADRAS 1.The Deputy Commissioner of Labour-II (Authority under the Payment of Wages Act) D.M.S., Compound, Teynampet, Chennai – 600 006 2.The General Secretary, Chennai Perunagar Motor Vaagana Thozhilalar Sangam, 52, Cooks Road, Chennai – 600 012. 3.The Management Arjun Associates(P) Limited Alsa Crescent (Alsa Garden) 72, Harrington Road, Chetpet, Chennai – 31. 4.The Management, Arjun Associates(P)Limited Alsa Crescent (Alsa Garden) Rajiv Gandhi Nagar, Thiruvottriyur, Chennai – 600 019. ..Respondents Prayer : Writ Petition filed under Article 226 of theConstitution of India praying to issue a Writ of Certiorari, tocall for the records pertaining to the impugned order dated26.09.2008, passed in P.W.A.No.3 of 2007 on the file of thefirst respondent herein, and quash the operative portion of theimpugned order in so far as it relates to or impose liability onthe petitioner herein. https://hcservices.ecourts.gov.in/hcservices/ The order dated 26.09.2008 passed in P.W.A.No.3 of 2007 onthe file of the 1[st] respondent is sought to be quashed in thepresent writ petition. 2. The writ petitioner was the Ex-Director of the 3[rd]respondent Company. The General Secretary of the Sangam /2[nd]respondent filed a petition under the Payment of Wages Act 1936,claiming wages for certain employees, who all are the members ofthe 2[nd]respondent Sangam. Though the Management filed a counteraffidavit, they had not contested the case and subsequently, thepetition was allowed and the Deputy Commissioner of Labour / 1[st]respondent passed an Award, granting wages to the members ofthe writ petitioner Sangam. Challenging the said award, the writpetitioner, who was the Ex-Director of the 3[rd]respondent companyfiled the present writ petition. 3. The learned counsel appearing on behalf of the 2[nd]respondent Sangam made a submission that the impugned order waspassed by the 1[st]respondent Deputy Commissioner of Labour andauthority under the Payment of Wages Act, 1936. Against theorder passed by the original authority, an appeal iscontemplated under Section 17(1) of the Payment of Wages Act,1936. 17(1) of the said Act, which reads as under: “17. Appeal - (1) [An appeal against an orderdismissing either wholly or in part an application madeunder sub-section (2) of section 15, or against adirection made under sub-section (3) or sub-section (4)of that section] may be preferred, within thirty daysof the date on which [the order or direction] was made,in a Presidency-town before the Court of Small Causesand elsewhere before the District Court.” 4. According to the above provision, the writ petitioner isbound to approach the Appellate authority for the purpose of theredressal of his grievances. Contrarily, the writ petition isfiled, challenging the order of the original authority and underthese circumstances, this Court is of the considered opinionthat an adjudication by the Appellate authority in respect ofdisputed facts are required and this Court cannot entertain the https://hcservices.ecourts.gov.in/hcservices/ writ petition in respect of the order passed by the Originalauthority, without exhausting the statutory Appellate remedyprovided under the Act, which is also efficacious. 5. Exhausting the statutory remedies is of paramountimportance. Writ petition can be entertained in a routinemanner, in respect of the order passed by the original authoritywithout approaching the Appellate authorities provided under theAct. https://hcservices.ecourts.gov.in/hcservices/ writ petition in respect of the order passed by the Originalauthority, without exhausting the statutory Appellate remedyprovided under the Act, which is also efficacious. 5. Exhausting the statutory remedies is of paramountimportance. Writ petition can be entertained in a routinemanner, in respect of the order passed by the original authoritywithout approaching the Appellate authorities provided under theAct. 6. This being the consistent view taken by theConstitutional Courts across the Country. The Appellate remedyprovided under the Act exhausted at the first instance and it isan admitted fact in the present case that the writ petition isfiled, challenging the order passed by the original authorityunder the Act and an appeal is also contemplated under Section17 of the Payment of Wages Act, 1936. The legal principles inrespect of exhausting alternate statutory remedy was consideredby this Court in the case of M/s.Hyundai Motor India Limited Vs.The Deputy Commissioner of Income Tax in W.P.No.22508 of 2017dated 16.07.2018 and the relevant paragraphs are extractedhereunder: “19.Unnecessary or routine invasion into thestatutory powers of the competent authorities under astatute should be restrained by the ConstitutionalCourts. Frequent or unnecessary invasions in theexecutive power will defeat the constitutionalperspectives enshrined under the Constitution ofIndia. Undoubtedly, the separation of powers under theIndian Constitution has been narrated and settled inumpteen number of judgments. Separation of powersdemarcated in the Constitution of India is also to beconsidered, while exercising the powers of judicialreview in the matter of dispensing with the appealremedy provided for an aggrieved person under astatute. If the High Courts started interfering withsuch Appellate powers without any valid andsubstantiated reasons, then the very purpose andobject of the statute and provision of appeal underthe statute became an empty formality and the HighCourts also should see that the provisions of appealcontemplated under the statutes are implemented in itsreal spirit and in accordance with the procedurescontemplated under the rules constituted thereon.While entertaining a writ petition as narrated by theApex Court, the provision of efficacious alternativeremedy under the statute also to be considered. If thewrit petitions are entertained in a routine manner, bynot allowing the competent Appellate authority toexercise their powers under the provisions of thestatute, then this Court is of an opinion that the power of judicial review has not exercised in a propermanner. Thus, it is necessary for this Court toelaborate the legal principle settled in respect ofthe separation of powers under the Constitution ofIndia. 1. Madras Bar Association vs. Union of India (UOI)(25.09.2014 - SC) : MANU/SC/0875/2014 If the historical background, the preamble, theentire scheme of the Constitution, relevant provisionsthereof including Article 368 are kept in mind therecan be no difficulty in discerning that the followingcan be regarded as the basic elements of theconstitutional structure. (These cannot be cataloguedbut can only be illustrated): (1) The supremacy of the Constitution. (2) Republican and Democratic form of government andsovereignty of the country. (3) Secular and federal character of the Constitution.(4) Demarcation of power between the Legislature, theexecutive and the judiciary. (5) The dignity of the individual secured by thevarious freedoms and basic rights in Part III and themandate to build a welfare State contained in Part IV. (6) The unity and the integrity of the Nation. 2. Holiness Kesavananda Bharati Sripadagalvaru v.State of Kerala and Anr.[MANU/SC/0445/1973: (1973)4 SCC 225]. (1) The supremacy of the Constitution. (2) Republican and Democratic form of government andsovereignty of the country. (3) Secular and federal character of the Constitution.(4) Demarcation of power between the Legislature, theexecutive and the judiciary. (5) The dignity of the individual secured by thevarious freedoms and basic rights in Part III and themandate to build a welfare State contained in Part IV. (6) The unity and the integrity of the Nation. 2. Holiness Kesavananda Bharati Sripadagalvaru v.State of Kerala and Anr.[MANU/SC/0445/1973: (1973)4 SCC 225]. That separation of powers between the legislature,the executive and the judiciary is the basic structureof the Constitution is expressly stated by Sikri, C.J.3. P. Kannadasan and Ors. v. State of T.N. and Ors.[MANU/SC/0650/1996 : (1996) 5 SCC 670] the SupremeCourt noted that the Constitution of India recognisedthe doctrine of separation of powers between the threeorgans of the State, namely, the legislature, theexecutive and the judiciary. The Court said: It must be remembered that our Constitution recognisesand incorporates the doctrine of separation of powersbetween the three organs of the State, viz., theLegislature, the Executive and the Judiciary. Eventhough the Constitution has adopted the parliamentaryform of government where the dividing line between thelegislature and the executive becomes thin, the theoryof separation of powers is still valid. 4. State of Tamil Nadu and Ors. vs. State of Keralaand Ors. (07.05.2014 - SC) : MANU/SC/0425/2014 121. On deep reflection of the above discussion, inour opinion, the constitutional principles in thecontext of Indian Constitution relating to separationof powers between legislature, executive and judiciarymay, in brief, be summarized thus: (i) Even without express provision of the separationof powers,the doctrine of separation of powers is anentrenched principle in the Constitution of India. The doctrine of separation of powers informs theIndian constitutional structure and it is an essentialconstituent of rule of law. In other words, the doctrine of separation of powerthough not expressly engrafted in the Constitution,its sweep, operation and visibility are apparent fromthe scheme of Indian Constitution. Constitution hasmade demarcation, without drawing formal lines betweenthe three organs- legislature, executive andjudiciary. In that sense, even in the absence ofexpress provision for separation of power, theseparation of power between legislature, executive andjudiciary is not different from the constitutions ofthe countries which contain express provision forseparation of powers. (ii) Independence of courts from the executive andlegislature is fundamental to the rule of law and oneof the basic tenets of Indian Constitution.Separation of judicial power is a significantconstitutional principle under the Constitution ofIndia. (iii) Separation of powers between three organs--legislature, executive and judiciary--is also nothingbut a consequence of principles of equality enshrinedin Article 14 of the Constitution of India.Accordingly, breach of separation of judicial powermay amount to negation of equality Under Article 14.Stated thus, a legislation can be invalidated on thebasis of breach of the separation of powers since suchbreach is negation of equality Under Article 14 of theConstitution. (iv) The superior judiciary (High Courts and SupremeCourt) is empowered by the Constitution to declare alaw made by the legislature (Parliament and Statelegislatures) void if it is found to have transgressed the constitutional limitations or if it infringed therights enshrined in Part III of the Constitution. (iii) Separation of powers between three organs--legislature, executive and judiciary--is also nothingbut a consequence of principles of equality enshrinedin Article 14 of the Constitution of India.Accordingly, breach of separation of judicial powermay amount to negation of equality Under Article 14.Stated thus, a legislation can be invalidated on thebasis of breach of the separation of powers since suchbreach is negation of equality Under Article 14 of theConstitution. (iv) The superior judiciary (High Courts and SupremeCourt) is empowered by the Constitution to declare alaw made by the legislature (Parliament and Statelegislatures) void if it is found to have transgressed the constitutional limitations or if it infringed therights enshrined in Part III of the Constitution. (v) The doctrine of separation of powers applies tothe final judgments of the courts. Legislature cannotdeclare any decision of a court of law to be void orof no effect. It can, however, pass an amending Act toremedy the defects pointed out by a court of law or oncoming to know of it aligned. In other words, a court's decision must always bindunless the conditions on which it is based are sofundamentally altered that the decision could not havebeen given in the altered circumstances. (vi) If the legislature has the power over thesubject-matter and competence to make a validatinglaw, it can at any time make such a validating law andmake it retrospective. The validity of a validatinglaw, therefore, depends upon whether the legislaturepossesses the competence which it claims over thesubject-matter and whether in making the validationlaw it removes the defect which the courts had foundin the existing law.” 20.This Court is of a strong opinion thatinstitutional respects are to be maintained by theconstitutional Courts. Whenever there is a provisionfor an appeal under the statute, without exhaustingthe remedies available under the statute, no writpetition can be entertained in a routine manner. Onlyon exceptional circumstances, the remedy of appeal canbe waived, if there is a gross injustice or if thereis a violation of fundamental rights ensured under theConstitution of India. Otherwise, all the aggrievedpersons from and out of the order passed by theoriginal authority is bound to approach the AppellateAuthority. The Constitutional Courts cannot make anappeal provision as an empty formality. EveryAppellate Authority created under the statute to betrusted in normal circumstances unless there is aspecific allegation, which is substantiated in a writproceedings. Thus, the institutional functions andexhausting the appeal remedies by the aggrievedpersons, are to be enforced in all circumstances andwrit proceedings can be entertained only onexceptional circumstances. Rule is to prefer an appealand entertaining a writ is only an exception. Thisbeing the legal principles to be followed, this Courtcannot entertain the writ petitions in a routinemanner by waiving the remedy of appeal provided underthe statute. 21.Now, let us look into the legal principlessettled by the Apex Court for exhausting theefficacious alternative remedy provided under thestatute. 22.When an effective alternative remedy isavailable, a writ petition cannot be maintained 1. In City and Industrial Development Corporation v.DosuAardeshirBhiwandiwala and Ors. MANU/SC/8250/2008 : (2009) 1 SCC 168, this Court had observed that: The Court while exercising its jurisdiction underArticle 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complexand disputed questions of facts and whether they canbe satisfactorily resolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effectiveremedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty ofunexplained delay and laches; 22.When an effective alternative remedy isavailable, a writ petition cannot be maintained 1. In City and Industrial Development Corporation v.DosuAardeshirBhiwandiwala and Ors. MANU/SC/8250/2008 : (2009) 1 SCC 168, this Court had observed that: The Court while exercising its jurisdiction underArticle 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complexand disputed questions of facts and whether they canbe satisfactorily resolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effectiveremedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty ofunexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barredby any valid law; and host of other factors. 2. KanaiyalalLalchand Sachdev and Ors. vs. State ofMaharashtra and Ors. (07.02.2011 - SC) :MANU/SC/0103/2011 It is well settled that ordinarily relief UnderArticles 226/227 of the Constitution of India is notavailable if an efficacious alternative remedy isavailable to any aggrieved person. (See Sadhana Lodhv. National Insurance Co. Ltd.; Surya Dev Rai v. RamChander Rai and SBI v. Allied Chemical Laboratories.) 3. Commissioner of Income Tax and Ors. v. ChhabilDassAgarwal, MANU/SC/0802/2013 : 2014 (1) SCC 603, asfollows: Para 15. while it can be said that this Court hasrecognised some exceptions to the Rule of alternativeremedy i.e. where the statutory authority has notacted in accordance with the provisions of theenactment in question, or in defiance of thefundamental principles of judicial procedure, or hasresorted to invoke the provisions which are repealed,or when an order has been passed in total violation ofthe principles of natural justice, the propositionlaid down in ThansinghNathmal case, Titaghur PaperMills case and other similar judgments that the High Court will not entertain a petition Under Article 226of the Constitution if an effective alternative remedyis available to the aggrieved person or the statuteunder which the action complained of has been takenitself contains a mechanism for redressal of grievancestill holds the field. Therefore, when a statutoryforum is created by law for redressal of grievances, awrit petition should not be entertained ignoring thestatutory dispensation. 4. Authorized Officer, State Bank of Travancore andOrs. vs. Mathew K.C. (30.01.2018 - SC) :MANU/SC/0054/2018 The petitioner argued that the SARFAESI Act is acomplete code by itself, providing for expeditiousrecovery of dues arising out of loans granted byfinancial institutions, the remedy of appeal by theaggrieved under Section 17 before the Debt RecoveryTribunal, followed by a right to appeal before theAppellate Tribunal under Section 18. The High Courtought not to have entertained the writ petition inview of the adequate alternate statutory remediesavailable to the Respondent. The interim order waspassed on the very first date, without an opportunityto the Appellant to file a reply. Reliance was placedon United Bank of India vs. Satyawati Tandon andothers, 2010 (8) SCC 110, and General Manager, SriSiddeshwara Cooperative Bank Limited and another vs.Ikbal and others, 2013 (10) SCC 83. The writ petitionought to have been dismissed at the threshold on theground of maintainability. The Division Bench erred indeclining to interfere with the same. The SupremeCourt agreed to the arguments and held the same alsonoted that the writ petition ought not to have beenentertained and the interim order granted for the mereasking without assigning special reasons, and that toowithout even granting opportunity to the Appellant tocontest the maintainability of the writ petition andfailure to notice the subsequent developments in theinterregnum. 5. State of Himachal Pradesh v. Gujarat Ambuja CementLtd. reported at AIR 2005 SC 3856, the Supreme Courtexplained the rule of 'alternate remedy' in thefollowing terms Considering the plea regarding alternative remedy asraised by the appellant-State. Except for a periodwhen Article 226 was amended by the Constitution (42ndAmendment)Act,1976, thepowerrelating toalternative remedy has been considered to be a rule of self imposed limitation. It is essentially a ruleof policy, convenience and discretion and never a ruleof law. Despite the existence of an alternative remedyit is within the jurisdiction of discretion of theHigh Court to grant relief under Article 226 of theConstitution. At the same time, it cannot be lostsight of that though the matter relating to analternative remedy has nothing to do with thejurisdiction of the case, normally the High Courtshouldnotinterfereifthereisanadequate efficacious alternative remedy. If somebodyapproaches the High Court without availing thealternative remedy provided the High Court shouldensure that he has made out a strong case or thatthere exist good grounds to invoke the extraordinaryjurisdiction. 6. K.S. Rashid and Sons v. Income Tax InvestigationCommission and Ors., AIR (1954) SC 207; Sangram Singhv. Election Tribunal, Kotah and Ors., AIR (1955) SC425; Union of India v. T.R. Varma, AIR (1957) SC 882;State of U.P. and Ors. v. Mohammad Nooh, AIR (1958) SC86 and M/s K.S. Venkataraman and Co. (P) Ltd. v. Stateof Madras, AIR (1966) SC 1089, Constitution Benches of the Supreme Court held thatArticle 226 of the Constitution confers on all theHigh Courts a very wide power in the matter of issuingwrits. However, the remedy of writ is an absolutelydiscretionary remedy and the High Court has always thediscretion to refuse to grant any writ if it issatisfied that the aggrieved party can have anadequate or suitable relief elsewhere. The Court, inextraordinary circumstances, may exercise the power ifit comes to the conclusion that there has been abreach of principles of natural justice or procedurerequired for decision has not been adopted. 7. First Income-Tax Officer, Salem v. M/s. ShortBrothers (P) Ltd., [1966] 3 SCR 84 and State of U.P.and Ors. v. M/s. Indian Hume Pipe Co. Ltd., [1977] 2SCC 724. There are two well recognized exceptions to thedoctrine of exhaustion of statutory remedies. First iswhen the proceedings are taken before the forum under aprovision of law which is ultra vires, it is open to aparty aggrieved thereby to move the High Court forquashing the proceedings on the ground that they areincompetent without a party being obliged to wait untilthose proceedings run their full course. Secondly, thedoctrine has no application when the impugned order has been made in violation of the principles of naturaljustice. We may add that where the proceedings itselfare an abuse of process of law the High Court in anappropriate case can entertain a writ petition.” 7. In view of the legal principles settled, this Court is ofthe considered opinion that the petitioner has to approach theAppellate authority under Section 17 of the Payment of WagesAct. In view of the fact that the writ petition is kept pendingfor long years and in the event of filing any appeal by the writpetitioner, the Appellate authority shall consider the condonedelay petition and entertain the appeal and adjudicate thematter on merits and in accordance with law. The writ petitioneris at liberty to file an appeal, if they have chosen to do so. 8. With these observations, the writ petition standsdisposed of. However, there shall be no order as to costs.Consequently, connected miscellaneous petitions are closed. Sd/-Assistant Registrar //True Copy// Sub Assistant Registrar To1.The Deputy Commissioner of Labour-II (Authority under the Payment of Wages Act) D.M.S., Compound, Teynampet, Chennai – 600 006 8. With these observations, the writ petition standsdisposed of. However, there shall be no order as to costs.Consequently, connected miscellaneous petitions are closed. Sd/-Assistant Registrar //True Copy// Sub Assistant Registrar To1.The Deputy Commissioner of Labour-II (Authority under the Payment of Wages Act) D.M.S., Compound, Teynampet, Chennai – 600 006 2.The General Secretary, Chennai Perunagar Motor Vaagana Thozhilalar Sangam, 52, Cooks Road, Chennai – 600 012. +1cc to Mr.G.Arumugaraja, Advocate, SR.No.78078 +1cc to the Govt.Pleader, Vide Sr.No.77738+1cc to Mr.S.Gunaseelan, Advocate, SR.No.77277W.P.No.14578 of 2009 Kak(16/10/2019)