In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940 WP(C).No. 23279 of 2018 PETITIONER MANJU MURALI, W/O.ANOOP AGED 33 YEARS, ANANDA BHAVANAM, KANDALLOOR SOUTH, KANDALLOOR P.O., ALAPPUZHA -690 535. KANDALLOOR SOUTH, KANDALLOOR P.O., BY ADVS.SRI.P.SREEKUMAR SRI.P.A.MOHAMMED SHAH SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.SIDHARTH B PRASAD SRI.R.NANDAGOPAL RESPONDENTS 1. THE SECRETARY TO GOVERNMENT, CO OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALAPPUZHA -688 001. ALAPPUZHA -688 001. 3. THE KANDALLOOR FARMERS SERVICE CO-OPERATIVE BANK LTD.NO.1410, ONAMPALLY JUNCTION, MANIVELIKKADAVU, KANDALLOOR P.O., ALAPPUZHA-690 535 REPRESENTED BY SECRETARY. 4. SAJITHA, JUNIOR CLERK, KANDALLOOR FARMERS SERVICE CO-OPERATIVE BANK LTD.NO.1410, ONAMPALLY JUNCTION, MANIVELIKKADAVU, KANDALLOOR P.O., ALAPPUZHA-690 535. R1&R2BY SENIOR GOVERNMENT PLEADER : SRI.K.P.HARISH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX //TRUE COPY// P.A. TO JUDGE ANIL K. NARENDRAN, J. ------------------------------------------ W.P.(C) No.23279 of 2018 ------------------------------------------Dated this the 24[th] day of July, 2018JUDGMENT The petitioner, who was appointed as Record Keeper inthe 3[rd] respondent Co-operative Bank on 15.07.2013, hasfiled this writ petition under Article 226 of the Constitution ofIndia, seeking a writ of certiorari to quash Ext.P1 order dated04.12.2017, whereby she has been promoted to the post ofJunior Clerk only with effect from 15.07.2017, instead of01.07.2017, on a finding that the period spent for undergoingHDC course from 01.08.2014 to 18.08.2015 cannot bereckoned as on duty. Feeling aggrieved by Ext.P1 order ofthe 2[nd] respondent Joint Registrar of Co-operative Societies,the petitioner filed Ext.P2 appeal before the 1[st] respondentState along with Ext.P3 interlocutory application for stay. Thefurther relief sought for in this writ petition is a writ ofmandamus commanding the 1[st] respondent to consider andpass appropriate orders on Ext.P2 appeal and Ext.P3 W.P.(C) No.23279 of 2018 :-2-: interlocutory application for stay, within a time limit to befixed by this Court. 2.On 12.07.2018, when this writ petition came upfor admission, the learned Senior Government Pleadersought time to get instructions. 3.On 17.07.2018, the learned Senior GovernmentPleader on instructions, submitted that, in Ext.P2 appealand Ext.P3 interlocutory application filed before the 1[st]respondent, the affected party viz., the 4[th] respondentherein, was not impleaded. Subsequently, the 4[th]respondent filed an interlocutory application in Ext.P3appeal to get herself impleaded as additional respondent.After recording the said submission made by the learnedSenior Government Pleader, this writ petition was orderedto be listed on this date for further consideration. 4.Heard the learned counsel for the petitioner andalso the learned Senior Government Pleader appearing forrespondents 1 and 2. Considering the nature of reliefproposed to be granted, service of notice on respondents 3and 4 is dispensed with. W.P.(C) No.23279 of 2018 :-3-: 5.The petitioner has filed this writ petition seeking a writ of certiorari to quash Ext.P1 order dated 04.12.2017 ofthe 2[nd] respondent. Ext.P1 order is appealable before the 1[st]respondent under Section 83(1)(j) of the Kerala Co-operative Societies Act. In view of the statutory remedyavailable under Section 83(1)(j) of the said Act, Ext.P1order cannot be challenged by invoking the writ jurisdictionof this Court under Article 226 of the Constitution of India. 4.Heard the learned counsel for the petitioner andalso the learned Senior Government Pleader appearing forrespondents 1 and 2. Considering the nature of reliefproposed to be granted, service of notice on respondents 3and 4 is dispensed with. W.P.(C) No.23279 of 2018 :-3-: 5.The petitioner has filed this writ petition seeking a writ of certiorari to quash Ext.P1 order dated 04.12.2017 ofthe 2[nd] respondent. Ext.P1 order is appealable before the 1[st]respondent under Section 83(1)(j) of the Kerala Co-operative Societies Act. In view of the statutory remedyavailable under Section 83(1)(j) of the said Act, Ext.P1order cannot be challenged by invoking the writ jurisdictionof this Court under Article 226 of the Constitution of India. 6.Section 83 of the Co-operative Societies Act dealswith appeals to other authorities. As per clause (j) ofsub-section (1) of Section 83, an appeal shall lie against anyorder made by any person exercising all or any of thepowers of the Registrar. As per sub-section (2) of Section83, an appeal under sub-section (1) of that Section shall bemade within 60 days from the date of order or decision tothe Government, if the order or decision was made by theRegistrar; and to the Registrar, in other case. As per sub-section (2), the Government or the Registrar, as the casemay be, shall pass such orders on such appeal as he maythink fit. W.P.(C) No.23279 of 2018 :-4-: 7.In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court reiterated that,non-entertainment of a writ petition under Article 226 of theConstitution of India when an efficacious alternative remedyis available is a rule of self-imposed limitation. It isessentially 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 Article 226of the Constitution of India, despite the existence ofalternative remedy. However, High Court must not interfereif there is an adequate efficacious alternative remedyavailable to the petitioner and he has approached the HighCourt without availing the same, unless he has made out anexceptional case warranting such interference or thereexists sufficient ground to invoke the extraordinaryjurisdiction under Article 226. 8.Now, challenging Ext.P1 order, the petitioner hasalready moved Ext.P2 appeal before the 1[st] respondent,which is accompanied by Ext.P3 interlocutory application for W.P.(C) No.23279 of 2018 :-5-: stay. The 4[th] respondent has already moved Ext.P3interlocutory application in Ext.P2 appeal to get herselfimpleaded and the 1[st] respondent is yet to pass orders onthat interlocutory application. In such circumstances, leaving open all legal and factual contentions raised by the petitioner, this writ petitionis disposed of by directing the 1[st] respondent to considerand pass appropriate orders on the interlocutory applicationfiled by the 4[th] respondent herein to get herself impleadedas additional respondent in Ext.P2 appeal and thereafter,pass appropriate orders on Ext.P3 interlocutory applicationfiled by the petitioner herein in Ext.P2 appeal, strictly inaccordance with law, with notice to the petitioner and the4[th] respondent herein, as expeditiously as possible, at anyrate, within a period of one month from the date of receiptof a copy of this judgment. bpr Sd/- ANIL K. NARENDRAN JUDGE //TRUE COPY// P.A. TO JUDGE