In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940 WP(C).No. 21221 of 2018 PETITIONERS: S.VENUGOPALAGED 40 YEARS, S/O. SIVARAMA PILLAI,MANGALASSERIL HOUSE,KIDANGAYAM, KANNIMEL, NORTH MYNAGAPALLY, KOLLAM. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENTS: 1THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIESKOLLAM PIN 691 013.KOLLAM PIN 691 013. 2KOLLAM DISTRICT CO-OPERATIVE BANK, KOLLAM PIN 691 001REPRESENTED BY ITS GENERAL MANAGER. R1 BY SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER R2 BY SRI P.C.SASIDHARAN, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is presently working as Part-TimeSweeper in Thevalakkara Branch of the 2[nd] respondentDistrict Co-operative Bank, which is a Society registeredunder the Kerala Co-operative Societies Act and the Rulesmade thereunder, has filed this writ petition under Article226 of the Constitution of India, seeking a writ ofmandamus commanding the 1[st] respondent to ensure thatExt.P3 communication dated 13.06.2018 is complied withby the 2[nd] respondent Bank within a time limit to bespecified by this Court. The petitioner has also sought fora writ of mandamus commanding the 2[nd] respondent togrant him promotion to the post of Peon from the date ofacceptance of relinquishment of promotion ofSmt.Pankiyamma, Sl.No.7 in Ext.P5 Circular dated25.01.2016 of the 2[nd] respondent, within a time limit to befixed by this Court. 2. On 27.06.2018, when this writ petition came upfor admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for the 1[st] respondent and the learned Standing Counsel took noticefor the 2[nd] respondent. 3. A counter affidavit has been filed by the 2[nd] respondent. In paragraph 6 of the said counter affidavit itis pointed out that there are no vacancies at present in thecadre of Peon/Watchman and as such, the petitionercannot be promoted to that post. In the said counteraffidavit it has also been stated that the 1[st] respondentcan only direct the 2[nd] respondent that the petitioner beconsidered to be promoted to the post of Peon as andwhen the vacancy of Peon arises. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1[st]respondent and also the learned Standing Counselappearing for the 2[nd] respondent District Co-operativeBank. 5. The petitioner, who is presently working as Part-Time Sweeper in the Thevalakkara Branch of the 2[nd] respondent District Co-operative Bank, is virtually seeking promotion to the post of Peon. In Ext.P3 communicationdated 13.06.2018, the 1[st] respondent has only directedthe 2[nd] respondent to consider the claim made by thepetitioner for promotion, in accordance with law. If thepetitioner has a case that he has denied promotion to thepost of Peon, despite the availability of vacancy in thequota earmarked for promotees, it is for him to raise anappropriate dispute before the Co-operative ArbitrationCourt, by invoking the provisions under Section 69 of theKerala Co-operative Societies Act, 1969. 6. Section 69 of the Kerala Co-operative Societies Act, 1969 deals with disputes to be decided by Co-operative Arbitration Court and Registrar. As per clause (c)of sub-section (1) of Section 69, notwithstanding anythingcontained in any law for the time being in force, if adispute arises between the society or its Committee andany past Committee, any officer, agent or employee or anypast officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, 6. Section 69 of the Kerala Co-operative Societies Act, 1969 deals with disputes to be decided by Co-operative Arbitration Court and Registrar. As per clause (c)of sub-section (1) of Section 69, notwithstanding anythingcontained in any law for the time being in force, if adispute arises between the society or its Committee andany past Committee, any officer, agent or employee or anypast officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, suchdisputes shall be referred to Cooperative Arbitration Courtconstituted under Section 70A of the Act, in the case ofnon-monetary disputes and to the Registrar, in the case ofmonetary disputes, and the Arbitration Court or theRegistrar, as the case may be, shall decide such disputesand no other court or other authority shall havejurisdiction to entertain any suit or other proceedings inrespect of such disputes. As per clause (b) of subsection(2) of Section 69, for the purpose of sub-section (1), anydispute arising in connection with employment of officersand servants of the different classes of societies specifiedin sub-section (1) of Section 80 of the Act, including theirpromotion and inter se seniority, shall also be deemed tobe disputes. 7. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court heldthat non entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. Itis essentially a rule of policy, convenience and discretionrather than a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief under Article226 of the Constitution of India, despite the existence ofalternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternativeremedy available to the petitioner and he has approachedthe High Court without availing the same, unless he hasmade out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 8. In Authorised Officer, State Bank of Travancore v.Mathew K.C.[(2018) 3 SCC 85] theApex Court reiterated that the discretionary jurisdictionunder Article 226 of the Constitution of India is notabsolute but has to be exercised judiciously in the givenfacts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained ifalternative statutory remedies are available, except incases falling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra), i.e.,where the statutory authority has not acted in accordancewith the provisions of the enactment in question or indefiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions whichare repealed, or when an order has been passed in totalviolation of the principles of natural justice. After referringto the law laid down in Thansingh Nathmal v.Superintendent of Taxes andTitaghur Paper Mills Company Ltd. v. State of Orissa[(1983) 2 SCC 433] the Apex Court held that High Courtwill not entertain a petition under Article 226 of theConstitution if an effective alternative remedy is availableto the aggrieved person or the statute under which theaction complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition shouldnot be entertained ignoring the statutory dispensation. of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition shouldnot be entertained ignoring the statutory dispensation. 9. In Thansingh Nathmal's case (supra) aConstitution Bench of the Apex Court held that, thejurisdiction of the High Court under Article 226 of theConstitution is couched in wide terms and the exercisethereof is not subject to any restrictions except theterritorial restrictions which are expressly provided in theArticles. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it islawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to that jurisdictionis not intended as an alternative remedy for relief whichmay be obtained in a suit or other mode prescribed bystatute. Ordinarily, the court will not entertain a petitionfor a writ under Article 226, where the petitioner has analternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination ofquestions which demand an elaborate examination ofevidence to establish the right to enforce for which thewrit is claimed. The High Court does not, therefore, act asa court of appeal against the decision of a court ortribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to moveanother tribunal or even itself in another jurisdiction forobtaining redress in the manner provided by a statute, theHigh Court normally will not permit by entertaining apetition under Article 226 of the Constitution themachinery created under the statute to be bypassed, andwill leave the party applying to it to seek resort to themachinery so set up. 10. 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 impugnedorders of assessment can only be challenged by the modeprescribed by the Act and not by a petition under Article226 of the Constitution. It is now well recognised thatwhere a 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 rulewas stated with great clarity byWilles, J. in Wolverhampton New Water Works Co. v.Hawkesford [(1859) 6 CBNS 336] at page 356 in thefollowing passage: "There are three classes of cases in which a liabilitymay be established founded upon statute ..... Butthere is a third class, viz., where a liability not existingat common law is created by a statute which at thesame time gives a special and particular remedy forenforcing it ..... the remedy provided by the statutemust be followed, and it is not competent to the partyto pursue the course applicable to cases of the secondclass. The form given by the statute must be adoptedand adhered to." The rule laid down in that passage was approved by the 11 House of Lords inNeville v. London ExpressNewspaper Ltd. [1919 AC 368] and has beenreaffirmed 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 been followedby the Apex Court throughout. 11. In Association of Milma Officers v. State of The rule laid down in that passage was approved by the 11 House of Lords inNeville v. London ExpressNewspaper Ltd. [1919 AC 368] and has beenreaffirmed 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 been followedby the Apex Court throughout. 11. In Association of Milma Officers v. State of Kerala [2015 (1) KLT 849], one of the issues that cameup for consideration before a Larger Bench of this Courtwas as to whether a writ petition under Article 226 of theConstitution of India is maintainable against Co-operativeSocieties registered under the Kerala Co-operativeSocieties Act. After referring to the provisions under theAct, this Court held that writ petitions are maintainableagainst Co-operative Societies in certain circumstances,namely, when the action complained of in the writ petitionis of any statutory violation on the part of the Cooperative Society or the action of the Co-operative Society, if falls in a public domain or breach of public duty is complained of.In the absence of breach of any statutory duty or publicduty, a writ petition cannot be entertained against a Co-operative Society. In the said decision, the Larger Benchheld that the Full Bench judgment in Bhaskaran andothers v. Additional Secretary and others [1987 (2)KLT 903], cannot be read as holding that writ petition willlie only against a Cooperative Society, which is State orauthority within the meaning of Article 12 of theConstitution. 12. In Association of Milma Officers' case (supra), the 2[nd] petitioner was working as SeniorManager-in-charge of Thiruvananthapuram Regional Co-operative Milk Producers Union Ltd., who was governed bythe Staff Regulations of the said Union. It was the case ofthe petitioners that even though the 2nd petitioner waseligible to be appointed in the post of Senior Manager(Diary) respondents 3 and 4 were taking hasty steps to appoint the 7[th] respondent to the said post. After referring to the Staff Regulations, this Court held that the saidRegulation, being not of statutory nature, even if thesubmission is accepted that action of the respondent inproceeding to appoint the 7[th ]respondent was in violationof the Staff Regulation, the said violation of the non-statutory provision could not have been made the subjectmatter of writ proceedings. Since no infraction of anystatutory provision or violation of any public duty wasalleged, this Court held that the writ petition filed underArticle 226 of the Constitution is not maintainable. In such circumstances, for claiming promotion to thepost of Peon, it is for the petitioner to move the Co-operative Arbitration Court, by invoking the provisionsunder Section 69 of the Act. Leaving open the aforesaidright of the petitioner, this writ petition is dismissed. Sd/- ANIL K.NARENDRAN, JUDGE AV/13/2 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 01-06-2017 BEFORE THE GENERAL MANAGER. EXHIBIT P2 TRUE COPY OF THE PETITION SUBMITTED BYTHE PETITIONER BEFORE THE 1ST RESPONDENT UNDER SEC. 69 OF THE CO-OPERATIVE SOCIETIES ACT DATED 30-10-2017. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 13-06-2018 EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES DATED 11-06-2014. EXHIBIT P5TRUE COPY OF CIRCULAR DATED 25-01-2016OF 2ND RESPONDENT BANK. EXHIBIT P6 TRUE COPY OF THE ORDER IN WP(C) NO. 37781/2016 DATED 21-12-2016.