In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940 WP(C).No. 308 of 2018 PETITIONER: RAJAGOPAL.B.,SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVEBANK LTD, HEAD OFFICE, CHINNAKKADA, KOLLAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON28.11.2018, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner, who is presently working as Senior Accountant atthe Head Office of Kollam District Co-operative Bank, which is aSociety registered under the Kerala Co-operative Societies Act and theRules made thereunder, has filed this writ petition under Article 226 ofthe Constitution of India, seeking a writ of certiorari to quash Ext.P3proceedings dated 18.07.2013 of the 1[st] respondent District Co-operative Bank to the extent of promoting the 4[th] respondent asBranch Manager/Superintendent/Chief Accountant as arbitrary, illegaland void. The petitioner has also sought for other consequential reliefsincluding a writ of mandamus commanding the 1[st] respondent topromote him as Branch Manager/Superintendent/Chief Accountantafter reverting the 4[th] respondent and to give him suitable ranking inExt.P2 seniority list with all consequential benefits. 2.On 05.01.2018, when this writ petition came for admission,this Court admitted the matter on file. The learned Standing Counseltook notice for respondents 1 and 2. The learned Government Pleadertook notice for the 3[rd] respondent. Urgent notice by speed post wasordered to the 4[th] respondent, returnable within three weeks. 3.Section 69 of the Kerala Co-operative Societies Act, 1969deals with disputes to be decided by Co-operative Arbitration Court WPC 308 OF 2018 and Registrar. As per clause (c) of sub-section (1) of Section 69,notwithstanding anything contained in any law for the time being inforce, if a dispute arises between the society or its Committee and anypast Committee, any officer, agent or employee or any past officer,past agent or past employee or the nominee, heirs or legalrepresentatives of any deceased officer, deceased agent or deceasedemployee of the society, such disputes shall be referred to Co-operative Arbitration Court constituted under Section 70A of the Act, inthe case of non-monetary disputes and to the Registrar, in the case ofmonetary disputes, and the Arbitration Court or the Registrar, as thecase may be, shall decide such disputes and no other court or otherauthority shall have jurisdiction to entertain any suit or otherproceedings in respect of such disputes. As per clause (b) of sub-section (2) of Section 69, for the purpose of sub-section (1), anydispute arising in connection with employment of officers and servantsof the different classes of societies specified in sub-section (1) ofSection 80 of the Act, including their promotion and inter se seniority,shall also be deemed to be disputes. 4.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule andself imposed limitation. It is essentially a rule of policy, convenienceand discretion rather than a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief under Article 226 of theConstitution of India, despite the existence of alternative remedy.However, High Court must not interfere if there is an adequateefficacious alternative remedy available to the petitioner and he hasapproached the High Court without availing the same, unless he hasmade out an exceptional case warranting such interference or thereexists sufficient ground to invoke the extraordinary jurisdiction underArticle 226. India when an efficacious alternative remedy is available is a rule andself imposed limitation. It is essentially a rule of policy, convenienceand discretion rather than a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief under Article 226 of theConstitution of India, despite the existence of alternative remedy.However, High Court must not interfere if there is an adequateefficacious alternative remedy available to the petitioner and he hasapproached the High Court without availing the same, unless he hasmade out an exceptional case warranting such interference or thereexists sufficient ground to invoke the extraordinary jurisdiction underArticle 226. 5.In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the Apex Court reiterated that thediscretionary jurisdiction under Article 226 of the Constitution of Indiais not absolute but has to be exercised judiciously in the given facts ofa case and in accordance with law. The normal rule is that a writpetition under Article 226 of the Constitution of India ought not to beentertained if alternative statutory remedies are available, except incases falling within the well defined exceptions as observed in ChaabilDas Agarwal's case (supra), i.e., where the statutory authority hasnot acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions which arerepealed, or when an order has been passed in total violation of theprinciples of natural justice. After referring to the law laid down inThansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State of Orissa[(1983) 2 SCC 433] the Apex Court held that High Court will notentertain a petition under Article 226 of the Constitution if an effectivealternative remedy is available to the aggrieved person or the statuteunder which the action complained of contains a mechanism forredressal of grievance. Therefore, when a statutory forum is createdby law for redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. 6.In Thansingh Nathmal's case (supra) a ConstitutionBench ofthe Apex Court held that, the jurisdiction of the High Courtunder Article 226 of the Constitution is couched in wide terms and theexercise thereof is not subject to any restrictions except the territorialrestrictions which are expressly provided in the Articles. But theexercise of the jurisdiction is discretionary: it is not exercised merelybecause it is lawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject to certain self WPC 308 OF 2018 6.In Thansingh Nathmal's case (supra) a ConstitutionBench ofthe Apex Court held that, the jurisdiction of the High Courtunder Article 226 of the Constitution is couched in wide terms and theexercise thereof is not subject to any restrictions except the territorialrestrictions which are expressly provided in the Articles. But theexercise of the jurisdiction is discretionary: it is not exercised merelybecause it is lawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject to certain self WPC 308 OF 2018 imposed limitations. Resort to that jurisdiction is not intended as analternative remedy for relief which may be obtained in a suit or othermode prescribed by statute. Ordinarily, the court will not entertain apetition for a writ under Article 226, where the petitioner has analternative remedy, which without being unduly onerous, provides anequally efficacious remedy. Again the High Court does not generallyenter upon a determination of questions which demand an elaborateexamination of evidence to establish the right to enforce for which thewrit is claimed. The High Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal, to correct errors offact, and does not by assuming jurisdiction under Article 226 trenchupon an alternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to move another tribunalor even itself in another jurisdiction for obtaining redress in themanner provided by a statute, the High Court normally will not permitby entertaining a petition under Article 226 of the Constitution themachinery created under the statute to be bypassed, and will leave theparty applying to it to seek resort to the machinery so set up. 7.In Titaghur Paper Mills' case (supra) a Three-JudgeBench of the Apex Court held that, the Orissa Sales Tax Act, 1947provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petitionunder Article 226 of the Constitution. It is now well recognised thatwhere a right or liability is created by a statute which gives a specialremedy for enforcing it, the remedy provided by that statute only mustbe 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 a liability may beestablished founded upon statute ..... But there is a thirdclass, viz., where a liability not existing at common law iscreated by a statute which at the same time gives a specialand particular remedy for enforcing it ..... the remedyprovided by the statute must be followed, and it is notcompetent to the party to pursue the course applicable tocases of the second 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 been reaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935 AC 532]and Secretary of State v. Mask and Co. . Ithas also been held to be equally applicable to enforcement of rights WPC 308 OF 2018 and has been followed by the Apex Court throughout. 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 been reaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935 AC 532]and Secretary of State v. Mask and Co. . Ithas also been held to be equally applicable to enforcement of rights WPC 308 OF 2018 and has been followed by the Apex Court throughout. 8.In the instant case, the claim made by the petitioner forpromotion to the post of Branch Manager, claim made for seniority, etc.are disputes which have to be raised for adjudication before the Co-operative Arbitration Court, in view of the provisions under clause (c)of sub-section (1), read with clause (d) of sub-section (2) of Section69 of the Act. As per sub-section (2) of Section 70 of the Act, the Co-operative Arbitration Court is empowered to make such interlocutoryorders as it may deem necessary in the interest of justice, pendingaward of a dispute referred to it under Section 69. An award passed bythe Arbitration Court under sub-section (1) of Section 70 of the Act isappealable before the Co-operative Tribunal, under clause (a) of sub-section (1) of Section 82 of the Act. The provisions under Sections 69and 70 of the Act makes it abundantly clear that an effective statutoryforum has been created under the Act for adjudication of disputes ofthe employees of a Co-operative Banks in connection with theiremployment, including promotion and inter se seniority. 9.In Association of Milma Officers v. State of Kerala[2015 (1) KLT 849], one of the issues that came up for considerationbefore a Larger Bench of this Court was as to whether a writ petitionunder Article 226 of the Constitution of India is maintainable against Co-operative Societies registered under the Kerala Co-operativeSocieties Act. After referring to the provisions under the Act, this Courtheld that writ petitions are maintainable against Co-operative Societiesin certain circumstances, namely, when the action complained of in thewrit petition is of any statutory violation on the part of the Co-operative Society or the action of the Co-operative Society, if falls in apublic domain or breach of public duty is complained of. In the absenceof breach of any statutory duty or public duty, a writ petition cannot beentertained against a Co-operative Society. In the said decision, theLarger Bench held 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 will lie only against a Co-operative Society, which is State or authority within the meaning ofArticle 12 of the Constitution. 10.In Association of Milma Officers' case (supra), the 2[nd]petitioner was working as Senior Manager-in-charge ofThiruvananthapuram Regional Co-operative Milk Producers Union Ltd.,who was governed by the Staff Regulations of the said Union. It wasthe case of the petitioners that even though the 2[nd] 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 said Regulation, being not of statutory nature,even if the submission is accepted that action of the respondent inproceeding to appoint the 7[th] respondent was in violation of the StaffRegulation, the said violation of the non-statutory provision could nothave been made the subject matter of writ proceedings. Since noinfraction of any statutory provision or violation of any public duty wasalleged, this Court held that the writ petition filed under Article 226 ofthe Constitution is not maintainable. respondent to the said post. After referring to the Staff Regulations,this Court held that the said Regulation, being not of statutory nature,even if the submission is accepted that action of the respondent inproceeding to appoint the 7[th] respondent was in violation of the StaffRegulation, the said violation of the non-statutory provision could nothave been made the subject matter of writ proceedings. Since noinfraction of any statutory provision or violation of any public duty wasalleged, this Court held that the writ petition filed under Article 226 ofthe Constitution is not maintainable. In such circumstances, the reliefs sought for in this writ petitionsquarely falls within the scope of Section 69 of the Kerala Co-operativeSocieties Act. In the result, this writ petition is dismissed withoutprejudice to the right of the petitioner invoking statutory remedy underSection 69 of the Kerala Co-operative Societies Act by approaching theCo-operative Arbitration Court. Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE RECRUITMENT RULES PUBLISHED BY THE FIRST RESPONDENT BANK EXHIBIT P2TRUE COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST PUBLISHED BY THE 2ND RESPONDENT DATED 13/11/2017SENIORITY LIST PUBLISHED BY THE 2ND RESPONDENT DATED 13/11/2017 EXHIBIT P3TRUE COPY OF THE PROMOTION ORDER OF THE 4TH RESPONDENT AS NO.GM/001/84-85/2011 DATED 18/7/2013 ISSUED BY THE FIRST RESPONDENT.4TH RESPONDENT AS NO.GM/001/84-85/2011 DATED 18/7/2013 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P4TRUE COPY OF THE ORDER NO.GM/001/84-85/12754-12793 DATED 25/1/2016 ISSUED BYTHE FIRST RESPONDENT.85/12754-12793 DATED 25/1/2016 ISSUED BYTHE FIRST RESPONDENT. EXHIBIT P5TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 16/11/2017PETITIONER DATED 16/11/2017 RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE