In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY,THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940WP(C).No. 39634 of 2018 PETITIONER: M.R.KRISHNA KUMARAGED 50 YEARSS/O.LATE M.RAGHAVA MENON, PAZHANGATTU HOUSE, EDAVANAKKAD P.O., ERNAKULAM-682502. BY ADVS.SRI.T.G.RAJENDRANSRI.T.R.TARINSRI.V.A.VINOD RESPONDENTS: 1STATE OF KERALAREPRESENTED BY SECRETARY, AGRICULTURAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.REPRESENTED BY SECRETARY, AGRICULTURAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE MANAGING DIRECTOR,KERALA KERA KARSHAKA SAHAKARANA FEDERATION LTD NO.4370, (KERAFED), WATER WORKS COMPOUND, THIRUVANANTHAPURAM-695033. 3THE REGISTRAR OF CO-OPERATIVE SOCIETIES,OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695001. 4KERALA PUBLIC SERVICE COMMISSION,REPRESENTED BY ITS SECRETARY, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.REPRESENTED BY ITS SECRETARY, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004. SRI. P.C. SASIDHARAN, SC FOR KERALA PUBLIC SERVICE COMMISSION SMT. C.S. SHEEJA, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.39634 of 2018 :-2-: J U D G M E N T The petitioner, who is working as Assistant inthe Regional Office of the Kerala Kera KarshakaSahakarana Federation (KERAFED), the 2[nd] respondentherein, which is a Society registered under theKerala Co-operative Societies Act, 1969 and theRules made thereunder, has filed this writ petitionunder Article 226 of the Constitution of India,seeking a writ of certiorari to quash Ext.P3 noticedated 28.9.2018 issued by the 2[nd] respondent andseeking a writ of mandamus commanding the 2[nd]respondent to consider Ext.P7 representation dated20.10.2018 and pass appropriate orders thereon,within a time frame to be fixed by this Court. Thepetitioner has also sought for a writ of mandamuscommanding the 2[nd] respondent not to effect anypromotion pursuant to Ext.P3 notice dated 28.9.2018without getting finalisation of the recruitment W.P.(C)No.39634 of 2018 rules for KERAFED, as directed by this Court inExt.P2 judgment. 2.On 6.12.2018 when this writ petition came up for admission, the learned Standing Counsel for the 2[nd] respondent placed reliance on the judgmentof this Court dated 5.10.2018 in W.P.(C)No.12187/2016onthequestionof maintainability. Accordingly, the matter was ordered to be listed today for furtherconsideration. 3.Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 3, the learnedStanding Counsel for the 2[nd] respondent KERAFED andalso the learned Standing Counsel for the 4[th]respondent Kerala Public Service Commission. 4. Section 69 of the Act deals with disputes tobe decided by Co-operative Arbitration Court and :-4-: Registrar. As per clause (c) of sub-section (1) ofSection 69, notwithstanding anything contained inany law for the time being in force, if a disputearises between the society or its Committee and anypast Committee, any officer, agent or employee orany past officer, past agent or past employee orthe nominee, heirs or legal representatives of anydeceased officer, deceased agent or deceasedemployee of the society, such disputes shall bereferred to Co-operative Arbitration Courtconstituted under Section 70A of the Act, in thecase of non-monetary disputes and to the Registrar,in the case of monetary disputes, and theArbitration Court or the Registrar, as the case maybe, shall decide such disputes and no other courtor other authority shall have jurisdiction toentertain any suit or other proceedings in respectof such disputes. As per clause (b) of sub-section :-5-: :-5-: (2) of Section 69, for the purpose of sub-section(1), any dispute arising in connection withemployment of officers and servants of thedifferent classes of societies specified in sub-section (1) of Section 80 of the Act, includingtheir promotion and inter se seniority, shall alsobe deemed to be disputes. 5.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court heldthat non-entertainment of a writ petition underArticle 226 of the Constitution of India when anefficacious alternative remedy is available is arule and self imposed limitation. It is essentiallya rule of policy, convenience and discretion ratherthan a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief underArticle 226 of the Constitution of India, despitethe existence of alternative remedy. However, High W.P.(C)No.39634 of 2018 :-6-: Court must not interfere if there is an adequateefficacious alternative remedy available to thepetitioner and he has approached the High Courtwithout availing the same, unless he has made outan exceptional case warranting such interference orthere exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 6.InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the Apex Courtreiteratedthatthediscretionaryjurisdiction under Article 226 of the Constitutionof India is not absolute but has to be exercisedjudiciously in the given facts of a case and inaccordance with law. The normal rule is that a writpetition under Article 226 of the Constitution ofIndia ought not to be entertained if alternativestatutory remedies are available, except in casesfalling within the well defined exceptions as :-7-: observed in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not actedin accordance with the provisions of the enactmentin question or in defiance of the fundamentalprinciples of judicial procedure, or has resortedto invoke the provisions which are repealed, orwhen an order has been passed in total violation ofthe principles of natural justice. After referringto the law laid down in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held thatHigh Court will not entertain a petition underArticle 226 of the Constitution if an effectivealternative remedy is available to the aggrievedperson or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum is :-8-: created by law for redressal of grievances, a writpetition should not be entertained ignoring thestatutory dispensation. 7.In Thansingh Nathmal's case (supra) a Constitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and theexercise thereof is not subject to any restrictionsexcept the territorial restrictions which areexpressly provided in the Articles. But theexercise of the jurisdiction is discretionary: itis not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demandsthat it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suitor other mode prescribed by statute. Ordinarily, :-9-: 7.In Thansingh Nathmal's case (supra) a Constitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and theexercise thereof is not subject to any restrictionsexcept the territorial restrictions which areexpressly provided in the Articles. But theexercise of the jurisdiction is discretionary: itis not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demandsthat it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suitor other mode prescribed by statute. Ordinarily, :-9-: the court will not entertain a petition for a writunder Article 226, where the petitioner has analternative remedy, which without being undulyonerous, provides an equally efficacious remedy.Again the High Court does not generally enter upona determination of questions which demand anelaborate examination of evidence to establish theright to enforce for which the writ is claimed. TheHigh Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal,to correct errors of fact, and does not by assumingjurisdiction under Article 226 trench upon analternative remedy provided by statute forobtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itselfin another jurisdiction for obtaining redress inthe manner provided by a statute, the High Courtnormally will not permit by entertaining a petition :-10-: under Article 226 of the Constitution the machinerycreated under the statute to be bypassed, and willleave the party applying to it to seek resort tothe machinery so set up. 8.In Titaghur Paper Mills' case (supra) aThree-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act andnot by a petition under Article 226 of theConstitution. It is now well recognised that wherea right or liability is created by a statute whichgives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of.This rule was stated with great clarity by Willes,J. inWolverhampton 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 at commonlaw is created by a statute which at the sametime gives a special and particular remedy forenforcing it ..... the remedy provided by thestatute must be followed, and it is notcompetent to the party to pursue the courseapplicable to cases of the second class. Theform given by the statute must be adopted andadhered to."The rule laid down in that passage was approved bythe House of Lords in Neville v. London ExpressNewspaper Ltd.[1919 AC 368] and has been reaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equallyapplicable to enforcement of rights and has beenfollowed by the Apex Court throughout. W.P.(C)No.39634 of 2018 :-12-: 9. In the instant case, the issue raised in this writ petition is a dispute which has to beraised for adjudication before the Co-operativeArbitration Court, in view of the provisions underclause (c) of sub-section (1), read with clause (d)of sub-section (2) of Section 69 of the Act. As persub-section (2) of Section 70 of the Act, the Co- by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equallyapplicable to enforcement of rights and has beenfollowed by the Apex Court throughout. W.P.(C)No.39634 of 2018 :-12-: 9. In the instant case, the issue raised in this writ petition is a dispute which has to beraised for adjudication before the Co-operativeArbitration Court, in view of the provisions underclause (c) of sub-section (1), read with clause (d)of sub-section (2) of Section 69 of the Act. As persub-section (2) of Section 70 of the Act, the Co- operative Arbitration Court is empowered to makesuch interlocutory orders as it may deem necessaryin the interest of justice, pending award of adispute referred to it under Section 69. An award passed by the Arbitration Court under subsection(1) of Section 70 of the Act is appealable beforethe Co-operative Tribunal, under clause (a) of sub-section (1) of Section 82 of the Act. Theprovisions under Sections 69 and 70 of the Act makes it abundantly clear that an effectivestatutory forum has been created under the Act for :-13-: adjudication of disputes of the employees of a Co- operative Banks in connection with theiremployment, including promotion and inter seseniority. 10. In view of the law laid down in thedecisions referred to supra, conclusion isirresistible that for the reliefs sought for inthis writ petition the petitioner will have toavail statutory remedy under Section 69 of the Act. 11. Learned counsel for the petitioner wouldsubmit that the petitioner shall avail thestatutory remedy under Section 69 of the Act. 12. In such circumstances this writ petition isdismissed, without prejudice to the right of thepetitioner to avail the statutory remedy under Section 69 of the Act before the Co-operativeArbitration Court. W.P.(C)No.39634 of 2018 All legal and factual contentions raised by the petitioner are left open to be raised before theCo-operative Arbitration Court at appropriate stage. Sd/- ANIL K.NARENDRAN JUDGE ami/13.12.18 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE NEW STAFF PATTERN SUBMITTED TO THE PSC AND GOVERNMENT. EXHIBIT P2TRUE COPY OF THE JUDGMENT OF THIS COURT IN WPC NO.9727/2018 DATED 4.7.2018.IN WPC NO.9727/2018 DATED 4.7.2018. EXHIBIT P3TRUE COPY OF THE NOTICE DATED 28.9.2018 ALONG WITH LIST OF EMPLOYEES WHO ARE PROPOSED TO GIVE PROMOTIONS.ALONG WITH LIST OF EMPLOYEES WHO ARE PROPOSED TO GIVE PROMOTIONS. EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO.1231/2013 DATED 14.1.2013. EXHIBIT P5TRUE COPY OF THE ORDER NO.G.O(RT)NO.1003/2013/AD DATED 7.6.2013. EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE 2NDRESPONDENT DATED 10.6.2013.RESPONDENT DATED 10.6.2013. EXHIBIT P7 EXHIBIT P8 :-15-: TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 20.10.2018. POSTAL RECEIPT EVIDENCING THAT THE PETITIONER HAS PREFERRED EXT.P7 BEFORE IST RESPONDENT AND 2ND RESPONDENT.