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 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940WP(C).No. 19117 of 2017 PETITIONERS: 1KOZHIKKODE DISTRICT COOPERATIVE BANK EMPLOYEES UNION,KOZHIKKODE, REPRESENTED BY ITS GENERAL SECRETARY,SAJITHKUMAR K.K., AGED 42 YEARS, S/O. PADMANABHAN.UNION,KOZHIKKODE, REPRESENTED BY ITS GENERAL SECRETARY,SAJITHKUMAR K.K., AGED 42 YEARS, S/O. PADMANABHAN. 2GEETHA M.M.,W/O. RAJAN, AGED 42 YEARS,MOOSARIKANDY MEETHAL, PERAMBRA P.O., KOZHIKKODE.MEETHAL, PERAMBRA P.O., KOZHIKKODE. 3CHANDRI. K,AGED 46 YEARS W/O. BABU, 46 YEARS, KUNJIPARAMBIL HOUSE,VELAM P.O., KUTTIYADI (VIA), KOZHIKKODE, PIN - 673 508.KUTTIYADI (VIA), KOZHIKKODE, PIN - 673 508. 4ABDUL RAZAK,AGED 47 YEARS S/O. MOIDEEN, 47 YEARS,MADATHIL, MANDARATHUR P.O.,PUDUPPANAM, KOZHIKKODE. 5PRAMOD KUMAR,AGED 42 YEARS42 YEARS, S/O. NARAYANA KURUP, CHEMBAT, MUYIPOTH P.O., MEPPAYUR (VIA), KOZHIKKODE.42 YEARS, S/O. NARAYANA KURUP, CHEMBAT, MUYIPOTH P.O., MEPPAYUR (VIA), KOZHIKKODE. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT/S: 1THE JOINT REGISTRAR OF CO-OPERETIVE SOCEITIES(GENERAL),KOZHIKKODE, PIN - 673 001.SOCEITIES(GENERAL),KOZHIKKODE, PIN - 673 001. 2KOZHIKKODE DISTRICT CO-OPERATIVE BANKMANAGER.MANAGER. KOZHIKKODE, PIN - 673 001,REPRESENTED BY ITS GENERAL BY ADVS. SRI.P.C.SASIDHARAN, SC, KOZHIKODE DISTRICT CO-OPERATIVE BANK BY SR.GOVERNMENT PLEADER SRI.BIMAL K NATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The 1[st] petitioner is the General Secretaryof the Employees Union of the 2[nd] respondentDistrict Co-operative Bank, which is a Societyregistered under the Kerala Co-operativeSocieties Act, 1969 and the rules madethereunder. Petitioners 2 to 5 are working asPart Time Sweepers at different branches of thesaid Bank. The petitioners have filed this writpetition under Article 226 of the Constitutionof India, seeking a writ of certiorari to quashExt.P3 order dated 07.04.2017 issued by the 1[st]respondent Joint Registrar. The petitionershave also sought for a writ of mandamuscommanding the 1[st] respondent to direct the 2[nd]respondent Bank to give provisional promotion topetitioners 2 to 5 as Peon/Watchman in the fivevacant posts, until regular hands are appointedas per Rule 187 of the Co-operative SocietiesRules. 2. On 08.06.2017, when this writ petition came up for admission, the learned GovernmentPleader took notice for the 1[st] respondent. Thelearned Standing Counsel took notice for the 2[nd]respondent and sought time to get instructions. 3. A counter affidavit has been filed by the2[nd] respondent opposing the reliefs sought for inthis writ petition. 4. Heard the learned counsel for thepetitioners, the learned Government Pleaderappearing for the 1[st] respondent and also thelearned Standing Counsel for the 2[nd] respondentDistrict Co-operative Bank. 5. Section 69 of the Act deals with disputesto be decided by Co-operative Arbitration Courtand Registrar. As per clause (c) of sub-section(1) of Section 69, notwithstanding anythingcontained in any law for the time being inforce, if a dispute arises between the societyor its Committee and any past Committee, anyofficer, agent or employee or any past officer,past agent or past employee or the nominee, 3. A counter affidavit has been filed by the2[nd] respondent opposing the reliefs sought for inthis writ petition. 4. Heard the learned counsel for thepetitioners, the learned Government Pleaderappearing for the 1[st] respondent and also thelearned Standing Counsel for the 2[nd] respondentDistrict Co-operative Bank. 5. Section 69 of the Act deals with disputesto be decided by Co-operative Arbitration Courtand Registrar. As per clause (c) of sub-section(1) of Section 69, notwithstanding anythingcontained in any law for the time being inforce, if a dispute arises between the societyor its Committee and any past Committee, anyofficer, agent or employee or any past officer,past agent or past employee or the nominee, heirs or legal representatives of any deceasedofficer, deceased agent or deceased employee ofthe society, such disputes shall be referred toCo-operative Arbitration Court constituted underSection 70A of the Act, in the case of non-monetary disputes and to the Registrar, in thecase of monetary disputes, and the ArbitrationCourt or the Registrar, as the case may be,shall decide such disputes and no other court orother authority shall have jurisdiction toentertain any suit or other proceedings inrespect of such disputes. As per clause (b) ofsub-section (2) of Section 69, for the purposeof sub-section (1), any dispute arising inconnection with employment of officers andservants of the different classes of societiesspecified in sub-section (1) of Section 80 ofthe Act, including their promotion and inter seseniority, shall also be deemed to be disputes. 6. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court held 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 adequateefficacious alternative remedy available to thepetitioner and he has approached the High Courtwithout availing the same, unless he has madeout an exceptional case warranting suchinterference or there exists sufficient groundto invoke the extraordinary jurisdiction underArticle 226. 7.In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] theApex Court reiterated that the discretionary jurisdiction under Article 226 of theConstitution of India is not absolute but hasto be exercised judiciously in the given factsof a case and in accordance with law. Thenormal rule is that a writ petition underArticle 226 of the Constitution of India oughtnot to be entertained if alternative statutoryremedies are available, except in cases fallingwithin the well defined exceptions as observedin Chaabil Das Agarwal's case (supra), i.e.,where the statutory authority has not acted inaccordance with the provisions of the enactmentin question or in defiance of the fundamentalprinciples of judicial procedure, or hasresorted to invoke the provisions which arerepealed, or when an order has been passed intotal violation of the principles of naturaljustice. After referring to the law laid downin Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper MillsCompany Ltd. v. State of Orissa [(1983) 2 SCC 433] the Apex Court held that High Court willnot entertain a petition under Article 226 ofthe Constitution if an effective alternative 433] the Apex Court held that High Court willnot entertain a petition under Article 226 ofthe Constitution if an effective alternative remedy is available to the aggrieved person orthe statute under which the action complainedof contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, awrit petition should not be entertainedignoring the statutory dispensation. 8. In Thansingh Nathmal's case (supra) a Constitution Bench ofthe Apex Court held that,the jurisdiction of the High Court underArticle 226 of the Constitution is couched inwide terms and the exercise thereof is notsubject to any restrictions except theterritorial restrictions which are expresslyprovided in the Articles. But the exercise ofthe jurisdiction is discretionary: it is notexercised merely because it is lawful to do so.The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort tothat jurisdiction is not intended as analternative remedy for relief which may beobtained in a suit or other mode prescribed bystatute. Ordinarily, the court will notentertain a petition for a writ under Article226, where the petitioner has an alternativeremedy, which without being unduly onerous,provides an equally efficacious remedy. Againthe High 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,act as a court of appeal against the decisionof a court or tribunal, to correct errors offact, and does not by assuming jurisdictionunder Article 226 trench upon an alternativeremedy provided by statute for obtainingrelief. Where it is open to the aggrieved petitioner to move another tribunal or evenitself in another jurisdiction for obtainingredress in the manner provided by a statute,the High Court normally will not permit byentertaining a petition under Article 226 ofthe Constitution the machinery created underthe statute to be bypassed, and will leave theparty applying to it to seek resort to themachinery so set up. 9.In Titaghur Paper Mills' case (supra) aThree-Judge Bench of the Apex Court held that,the Orissa Sales Tax Act, 1947 provides for acomplete machinery to challenge an order of assessment, and the impugned orders ofassessment can only be challenged by the modeprescribed by the Act and not by a petitionunder Article 226 of the Constitution. It isnow well recognised that where a right orliability is created by a statute which gives aspecial remedy for enforcing it, the remedyprovided by that statute only must be availed of. This rule was stated with great clarity byWilles, 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 inwhich a liability may be establishedfounded upon statute ..... But there isa third class, viz., where a liabilitynot existing at common law is created bya statute which at the same time gives aspecial and particular remedy forenforcing it ..... the remedy providedby the statute must be followed, and itis not competent to the party to pursuethe course applicable to cases of thesecond class. The form given by thestatute must be adopted and adhered to."The rule laid down in that passage was approvedby the House of Lords in Neville v. LondonExpress Newspaper Ltd.[1919 AC 368] and has beenreaffirmed by the Privy Council in AttorneyGeneral 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 of rights and has been followed by the Apex Courtthroughout. rights and has been followed by the Apex Courtthroughout. 9.In the instant case, the claim made bypetitioners 2 to 5 for promotion to the post ofPeon/Watchman is a dispute which has to beraised for adjudication before the Co-operativeArbitration Court, in view of the provisionsunder clause (c) of sub-section (1), read withclause (d) of sub-section (2) of Section 69 ofthe Act. As per sub-section (2) of Section 70 ofthe Act, the Co-operative Arbitration Court isempowered to make such interlocutory orders asit may deem necessary in the interest ofjustice, pending award of a dispute referred toit under Section 69. An award passed by theArbitration Court under sub-section (1) ofSection 70 of the Act is appealable before theCo-operative Tribunal, under clause (a) of sub-section (1) of Section 82 of the Act. Theprovisions under Sections 69 and 70 of the Actmakes it abundantly clear that an effective statutory forum has been created under the Actfor adjudication of disputes of the employees ofa Co-operative Banks in connection with theiremployment, including promotion and inter seseniority. 10. In Association of Milma Officers v.State of Kerala [2015 (1) KLT 849], one of theissues that came up for consideration before aLarger Bench of this Court was as to whether awrit petition under Article 226 of theConstitution of India is maintainable againstCo-operative Societies registered under theKerala Co-operative Societies Act. Afterreferring to the provisions under the Act, thisCourt held that writ petitions are maintainableagainst Co-operative Societies in certaincircumstances, namely, when the actioncomplained of in the writ petition is of anystatutory violation on the part of the Co-operative Society or the action of the Co-operative Society, if falls in a public domain or breach of public duty is complained of. Inthe 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 thatthe Full Bench judgment in Bhaskaran and othersv. Additional Secretary and others [1987 (2) KLT903], cannot be read as holding that writpetition will lie only against a Co-operativeSociety, which is State or authority within themeaning of Article 12 of the Constitution. 11. 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. After referring to the Staff Regulations, thisCourt held that the said Regulation, being notof statutory nature, even if the submission is accepted 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 writproceedings. Since no infraction of anystatutory provision or violation of any publicduty was alleged, this Court held that the writpetition filed under Article 226 of theConstitution is not maintainable. 12. The learned counsel for the petitionerswould submit that the petitioners shall invokethe statutory remedy available under Section 69of the Act, for redressal of their grievances. 13. In the light of the law laid down in thedecisions referred to supra, conclusion isirresistible that the petitioners are notentitled to invoke the writ jurisdiction of this Court under Article 226 of India for redressalof their grievances. In such circumstances, this writ petition is disposed of relegating the petitioners to invoke 12. The learned counsel for the petitionerswould submit that the petitioners shall invokethe statutory remedy available under Section 69of the Act, for redressal of their grievances. 13. In the light of the law laid down in thedecisions referred to supra, conclusion isirresistible that the petitioners are notentitled to invoke the writ jurisdiction of this Court under Article 226 of India for redressalof their grievances. In such circumstances, this writ petition is disposed of relegating the petitioners to invoke the statutory remedy available under Section 69of the Kerala Co-operative Societies Act, 1969 for redressal of their grievances. Sd/- ANIL K.NARENDRAN,JUDGE AV/31/1 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE REPRESENTATION FILEDBY THE PETITIONERS DATED 20.12.2016.TRUE COPY OF THE REPRESENTATION DATED16.01.2016. EXHIBIT P2 EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 07.04.2017. EXHIBIT P4 TRUE COPY OF THE ORDER IN W.P.(C) NO.37781/2016 DATED 21.12.2016.