In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940WP(C).No. 14195 of 2018 PETITIONER/S: LINEESH C.S.ATTENDER(UNDER SUSPENSION),SULTHAN BATHERY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO.W.299, SULTHAN BATHEERY, WAYANAD. BY ADVS.SRI.B.S.SWATHY KUMARSMT.ANITHA RAVINDRANSRI.HARISANKAR N UNNI RESPONDENT/S: 1THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),WAYANAD, PIN 673 561. 2SULTHAN BATHERY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL ANDRURAL DEVELOPMENT BANK LTD NO. W.299, SULTHAN BATHERY, WAYANAD PIN 673 562.REPRESENTED BY ITS PART-TIME ADMINISTRATOR. 3THE PART TIME ADMINISTRATORSULTHAN BATHERY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO. W.299,SULTHAN BATHERY, WAYANAD PIN 673 562. BY ADV. SRI.P.U.SHAILAJAN OTHER PRESENT: SRI. BIMAL K.NATH, SR.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who was working as Attenderin the 2[nd] respondent Bank, which is a Co-operative Society registered under the provisionsof the Kerala Co-operative Societies Act, 1969,has filed this writ petition seeking a writ ofcertiorari to quash Ext.P1 order dated 12.04.2018of the 3[rd] respondent Part-time Administrator andseeking a writ of mandamus commanding respondents2 and 3 to allow him to continue as Attender inthe 2[nd] respondent Bank. 2. On 24.04.2018, when this writ petition came up for admission, this Court admitted thematter on file and issued urgent notice byspecial messenger to the respondents. 3. A counter affidavit has been filed by respondents 2 and 3 opposing the reliefs sought for in this writ petition. In the counter affidavit, a contention as to the maintainabilityof this writ petition, in view of the statutory provisions under Section 69 of the Kerala Co-operative Societies Act, has also been raised. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleaderappearing for the 1[st] respondent and also thelearned counsel appearing for respondents 2 and 3. 5. The sole issue that arises forconsideration in this writ petition is as towhether any interference is warranted on Ext.P1order of suspension issued by the 3[rd] respondent,invoking the extraordinary jurisdiction of thisCourt under Article 226 of the Constitution ofIndia. 6.Rule 198 of the Kerala Co-operativeSocieties Rules, 1969, deals with disciplinaryaction against any member of the establishment ofa Co-operative Society. Sub-rule (6) of Rule 198provides that an authority competent to appointan employee may suspend him pending enquiry intoserious charges against such employee. No employee shall however be kept under suspensionfor a period exceeding six months at a time andin no case an employee shall be kept undersuspension for a continuous period exceeding oneyear without the prior approval of the Registrar.As per sub-rule (6) of Rule 198, an employeeunder suspension shall be entitled to subsistenceallowance payable under the Kerala Payment ofSubsistence Allowance Act, 1972. In view of thestatutory provisions under sub-rule (6) of Rule198 of the Rules, it cannot be contended that Ext.P6 order, whereby the petitioner was placedunder suspension pending enquiry, is one issuedabsolutely without any authority of law. 7.Clause (i) of Section 2 of the Kerala Co-operative Societies Act define 'dispute' to meanany matter touching the business, constitution,establishments or management of a Society capableof being the subject of litigation and includes aclaim in respect of any sum payable to or by a Ext.P6 order, whereby the petitioner was placedunder suspension pending enquiry, is one issuedabsolutely without any authority of law. 7.Clause (i) of Section 2 of the Kerala Co-operative Societies Act define 'dispute' to meanany matter touching the business, constitution,establishments or management of a Society capableof being the subject of litigation and includes aclaim in respect of any sum payable to or by a Society, whether such claim be admitted or not.Section 69 of the Act deals with disputes to bedecided by Co-operative Arbitration Court andRegistrar. Clause (d) of sub-section (2) of Section 69 of the Act makes it explicitly clear that, any dispute arising in connection with employment of officers and servants of thedifferent classes of societies specified in sub- section (1) of Section 80, including theirpromotions and inter se seniority shall also be deemed to be a dispute, for the purpose of sub-section (1) of Section 69. 8.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Courtheld that non-entertainment of a writ petitionunder Article 226 of the Constitution of Indiawhen an efficacious alternative remedy isavailable is a rule and self imposed limitation.It is essentially a rule of policy, convenienceand discretion rather than a rule of law. Undoubtedly, it is within the discretion of theHigh Court to grant relief under Article 226 ofthe Constitution of India, despite the existenceof alternative remedy. However, High Court mustnot interfere if there is an adequate efficaciousalternative remedy available to the petitionerand he has approached the High Court withoutavailing the same, unless he has made out anexceptional case warranting such interference orthere exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 9.In Authorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85] theApex Court reiterated that the discretionaryjurisdiction under Article 226 of theConstitution of India is not absolute but has tobe exercised judiciously in the given facts of acase and in accordance with law. The normal ruleis that a writ petition under Article 226 of theConstitution of India ought not to be entertained if alternative statutory remedies are available,except in cases falling within the well definedexceptions as observed in Chaabil Das Agarwal'scase (supra), i.e., where the statutory authorityhas not acted in accordance with the provisionsof the enactment in question or in defiance ofthe fundamental principles of judicial procedure,or has resorted to invoke the provisions whichare repealed, or when an order has been passed intotal violation of the principles of naturaljustice. After referring to the law laid down inThansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills CompanyLtd. v. State of Orissa [(1983) 2 SCC 433] theApex Court held that High Court will notentertain a petition under Article 226 of theConstitution if an effective alternative remedyis available to the aggrieved person or thestatute under which the action complained ofcontains a mechanism for redressal of grievance. Therefore, when a statutory forum is created bylaw for redressal of grievances, a writ petitionshould not be entertained ignoring the statutorydispensation. 10. In Thansingh Nathmal's case (supra) a Therefore, when a statutory forum is created bylaw for redressal of grievances, a writ petitionshould not be entertained ignoring the statutorydispensation. 10. In Thansingh Nathmal's case (supra) a Constitution Bench ofthe Apex Court held that,the jurisdiction of the High Court under Article226 of the Constitution is couched in wide termsand the exercise thereof is not subject to anyrestrictions except the territorial restrictionswhich are expressly provided in the Articles. Buttheexerciseofthejurisdictionisdiscretionary: it is not exercised merely becauseit is lawful to do so. The very amplitude of thejurisdiction demands that it will ordinarily beexercised subject to certain self imposedlimitations. Resort to that jurisdiction is notintended as an alternative remedy for reliefwhich may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article226, where the petitioner has an alternativeremedy, which without being unduly onerous,provides an equally efficacious remedy. Again theHigh Court does not generally enter upon adetermination of questions which demand anelaborate examination of evidence to establishthe right to enforce for which the writ isclaimed. The High Court does not, therefore, actas a court of appeal against the decision of acourt or tribunal, to correct errors of fact, anddoes not by assuming jurisdiction under Article226 trench upon an alternative remedy provided bystatute for obtaining relief. Where it is open tothe aggrieved petitioner to move another tribunalor even itself in another jurisdiction forobtaining redress in the manner provided by astatute, the High Court normally will not permitby entertaining a petition under Article 226 ofthe Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery soset up. 11. In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that,the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed bythe Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by astatute which gives a special remedy forenforcing it, the remedy provided by that statute only must be availed of. This rule was statedwith great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336] at page 356 in the following passage: "There are three classes of cases in which aliability may be established founded uponstatute ..... But there is a third class, viz., where a liability not existing atcommon law is created by a statute which atthe same time gives a special and particularremedy for enforcing it ..... the remedyprovided by the statute must be followed,and it is not competent to the party topursue the course applicable to cases of thesecond class. The form given by the statutemust be adopted and adhered to."The rule laid down in that passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has beenreaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grantand Co. [1935 AC 532] and Secretary of State v.Mask and Co. . It has also beenheld to be equally applicable to enforcement ofrights and has been followed by the Apex Courtthroughout. 12. In Association of Milma Officers v. State of Kerala [2015 (1) KLT 849], one of the issuesthat came up for consideration before a LargerBench of this Court was as to whether a writ by the House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has beenreaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grantand Co. [1935 AC 532] and Secretary of State v.Mask and Co. . It has also beenheld to be equally applicable to enforcement ofrights and has been followed by the Apex Courtthroughout. 12. In Association of Milma Officers v. State of Kerala [2015 (1) KLT 849], one of the issuesthat came up for consideration before a LargerBench of this Court was as to whether a writ petition under Article 226 of the Constitution ofIndia is maintainable against Co-operativeSocieties registered under the Kerala Co-operative Societies Act. After referring to theprovisions under the Act, this Court held thatwrit petitions are maintainable against Co-operative Societies in certain circumstances,namely, when the action complained of in the writpetition is of any statutory violation on thepart of the Co-operative Society or the action ofthe Co-operative Society, if falls in a publicdomain or breach of public duty is complained of.In the absence of breach of any statutory duty orpublic duty, a writ petition cannot beentertained against a Co-operative Society. Inthe said decision, the Larger Bench held that theFull Bench judgment in Bhaskaran and others v.Additional Secretary and others [1987 (2) KLT903], cannot be read as holding that writpetition will lie only against a Co-operative Society, which is State or authority within themeaning of Article 12 of the Constitution. 13. In Association of Milma Officers' case (supra), the 2[nd] petitioner was working as SeniorManager-in-charge of Thiruvananthapuram RegionalCo-operative Milk Producers Union Ltd., who wasgoverned by the Staff Regulations of the saidUnion. It was the case of the petitioners thateven though the 2[nd] petitioner was eligible to beappointed in the post of Senior Manager (Diary),respondents 3 and 4 were taking hasty steps toappoint the 7[th] respondent to the said post. Afterreferring to the Staff Regulations, this Courtheld that the said Regulation, being not ofstatutory nature, even if the submission isaccepted that action of the respondent inproceeding to appoint the 7[th] respondent was inviolation of the Staff Regulation, the saidviolation of the non-statutory provision couldnot have been made the subject matter of writ proceedings. Since no infraction of any statutoryprovision or violation of any public duty wasalleged, this Court held that the writ petitionfiled under Article 226 of the Constitution isnot maintainable. 14. In Thrissur Taluk Co-Operative College v. Joint Registrar of Co-operative Societies(2012(1) KLT 503), this Court held that Section69 of the Act provides for resolution of disputesas defined under clause (i) of Section 2 of theAct by the Co-operative Arbitration Court whetherit being a dispute between a member and theSociety or an employee and the Society. Clause(b) of sub-section (1) of Section 69 applies ifit is a dispute between a member and the Societyand clause (b) of sub-section (2) of Section 69applies if it is a dispute arising in connectionwith the employment. 15. Having considered the submissions made bythe learned counsel on both sides and in the light of the law laid down in the decisionsreferred to supra, this Court finds absolutely nogrounds to interfere with Ext.P1 order of suspension issued by the 3[rd] respondent, invokingthe writ jurisdiction of this Court under Article226 of the Constitution of India. If the petitioner is aggrieved by Ext.P1 order of suspension, it is for him to invoke thestatutory remedy available under Section 69 ofthe Kerala Co-operative Societies Act. Without prejudice to the aforesaid right of 15. Having considered the submissions made bythe learned counsel on both sides and in the light of the law laid down in the decisionsreferred to supra, this Court finds absolutely nogrounds to interfere with Ext.P1 order of suspension issued by the 3[rd] respondent, invokingthe writ jurisdiction of this Court under Article226 of the Constitution of India. If the petitioner is aggrieved by Ext.P1 order of suspension, it is for him to invoke thestatutory remedy available under Section 69 ofthe Kerala Co-operative Societies Act. Without prejudice to the aforesaid right of the petitioner, this writ petition is dismissed,leaving open all legal and factual contentions. Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ORDER NO. ESTIADM 18-19 DATED 12-4-2018 OF THE 3RDRESPONDENT. RESPONDENTS' EXHIBITS : EXHIBIT R2(A) EXHIBIT R2(B) AV/6/10 TRUE COPY OF THE COMPLAINT DATED18.4.2018 FILED BY THE BANK BEFORE THEINSPECTOR OF POLICE, SULTHAN BATHERYPOLICE STATION. TRUE COPY OF THE CHARGE SHEET DATED 9.5.2018 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT