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 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940 WP(C).No. 21454 of 2017 PETITIONERS: P.S.KARTHIKEYANAGED 52 YEARSSUPERINTENDENT,THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD,ESTATE SECTION,HEAD OFFICE,THIRUVANANTHAPURAM,RESIDING AT 'NANDANAM'.TC 50/74-4,THETTIKAD LANE,KARAMANA.P.O,THIRUVANANTHAPURAM-695002. BY ADV. SRI.T.R.HARIKUMAR RESPONDENTS: 1THE REGISTRAR OF CO-OPERATIVE SOCIETIESTHIRUVANANTHAPURAM-695001. 2THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), THIRUVANANTHAPURAM-695001.(GENERAL), THIRUVANANTHAPURAM-695001. 3THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTDREPRESENTED BY ITS GENERAL MANAGER,HEAD OFFICE,EAST FORT,THIRUVANANTHAPURAM-695001. 4THE PART -TIME ADMINISTRATORTHIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANKLTD,HEAD OFFICE,EAST FORT,THIRUVANANTHAPURAM-695001.(JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),THIRUVANANTHAPURAM). W.P.(C)No.21454/2017 5 INDIRA.T.V CHIEF ACCOUNTANT,THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD,NANTHANCODE BRANCH, RESIDING AT TC NO.6/246(7),NETHAJI ROAD, VATTIYOORKAVU.P.O,THIRUVANANTHAPURAM-695011. BY ADVS. R1 & R2 BY GOVERNMENT PLEADER SMT.MABLE C.KURIAN R5 BY SRI.S.JUSTUS R3 & R4 BY SRI.THOMAS ABRAHAM SC THIRUVANANTHAPURAM DIST. CO.OP BANK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON23.01.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner, who is working as Superintendent in theEstate Section and Head Office of the 3[rd] respondent District Co-operative Bank has filed this writ petition under Article 226 of theConstitution of India, seeking a writ of certiorari to quash Ext.P9order dated 16.05.2017 to the extent it regularises the promotionof the 5[th] respondent in the 35[th] vacancy and fixation of pay. 2.On 30.06.2017 when this writ petition came up foradmission, learned Government Pleader took notice forrespondents 1 and 2. Learned Standing Counsel took notice forrespondents 3 and 4. Notice by speed post was ordered to the5[th] respondent returnable within two weeks. In the meanwhile ,an interim direction not to regularise the promotion of the 5[th]respondent for a period of one month was granted. Though thesaid interim order was extended from time to time, it expired on14.08.2018. Thereafter, the order was revived and extended on04.12.2018, which is still in force. In the interregnum, the 5[th]respondent was granted promotion against a regular vacancy and W.P.(C)No.21454/2017 she is continuing as such. 3.Heard the learned counsel for the petitioner, learnedSenior Government Pleader appearing for respondents 1 and 2,the learned Standing Counsel for the District Co-operative bankrepresenting the respondents 3 and 4 and also the learnedcounsel for the 5[th] respondent. 4.Section 69 of the Act deals with disputes to be decidedby 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 a disputearises between the society or its Committee and any pastCommittee, 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 ordeceased employee of the society, such disputes shall be referredto Co-operative Arbitration Court constituted under Section 70Aof the Act, in the case of non-monetary disputes and to theRegistrar, in the case of monetary disputes, and the ArbitrationCourt or the Registrar, as the case may be, shall decide such W.P.(C)No.21454/2017 W.P.(C)No.21454/2017 disputes and no other court or other authority shall havejurisdiction to entertain any suit or other proceedings in respectof such disputes. As per clause (b) of sub-section (2) of Section69, for the purpose of sub-section (1), any dispute arising inconnection with employment of officers and servants of thedifferent classes of societies specified in sub-section (1) ofSection 80 of the Act, including their promotion and inter seseniority, shall also be deemed to be disputes. 5.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 theConstitution of India when an efficacious alternative remedy isavailable is a rule and self imposed limitation. It is essentially arule of policy, convenience and discretion rather than a rule oflaw. Undoubtedly, it is within the discretion of the High Court togrant relief under Article 226 of the Constitution of India, despitethe existence of alternative remedy. However, High Court mustnot interfere if there is an adequate efficacious alternativeremedy available to the petitioner and he has approached the W.P.(C)No.21454/2017 High Court without availing the same, unless he has made out anexceptional case warranting such interference or there existssufficient ground to invoke the extraordinary jurisdiction underArticle 226. 6.In Authorised Officer, State Bank of Travancorev. Mathew K.C.[(2018) 3 SCC 85] the Apex Court reiteratedthat the discretionary jurisdiction under Article 226 of theConstitution of India is not absolute but has to be exercisedjudiciously in the given facts of a case and in accordance withlaw. The normal rule is that a writ petition under Article 226 ofthe Constitution of India ought not to be entertained if alternativestatutory remedies are available, except in cases falling withinthe well defined exceptions as observed in Chaabil DasAgarwal's case (supra), i.e., where the statutory authority hasnot acted in accordance with the provisions of the enactment inquestion 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 ofthe principles of natural justice. After referring to the law laid W.P.(C)No.21454/2017 -7- down in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd.v. State of Orissa [(1983) 2 SCC 433] the Apex Court heldthat High Court will not entertain a petition under Article 226 ofthe Constitution if an effective alternative remedy is available tothe aggrieved person or the statute under which the actioncomplained of contains a mechanism for redressal of grievance.Therefore, when a statutory forum is created by law for redressalof grievances, a writ petition should not be entertained ignoringthe statutory dispensation. 7.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdiction ofthe High Court under Article 226 of the Constitution is couched inwide terms and the exercise thereof is not subject to anyrestrictions except the territorial restrictions which are expresslyprovided in the Articles. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demands that it willordinarily be exercised subject to certain self imposed limitations. W.P.(C)No.21454/2017 7.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdiction ofthe High Court under Article 226 of the Constitution is couched inwide terms and the exercise thereof is not subject to anyrestrictions except the territorial restrictions which are expresslyprovided in the Articles. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demands that it willordinarily be exercised subject to certain self imposed limitations. W.P.(C)No.21454/2017 Resort to that jurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suit or other modeprescribed 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 an equally efficacious remedy. Again the High Courtdoes not generally enter upon a determination of questions whichdemand an elaborate examination of evidence to establish theright to enforce for which the writ is claimed. The High Courtdoes not, therefore, act as a court of appeal against the decisionof a court or tribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtaining relief. Whereit is open to the aggrieved petitioner to move another tribunal oreven itself in another jurisdiction for obtaining redress in themanner provided by a statute, the High Court normally will notpermit by entertaining a petition under Article 226 of theConstitution the machinery created under the statute to bebypassed, and will leave the party applying to it to seek resort to W.P.(C)No.21454/2017 the machinery so set up. 8.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales TaxAct, 1947 provides for a complete machinery to challenge anorder of assessment, and the impugned orders of assessment canonly be challenged by the mode prescribed by the Act and not bya petition under Article 226 of the Constitution. It is now wellrecognised that where a right or liability is created by a statutewhich gives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of. This rule wasstated with great clarity by Willes, J. in Wolverhampton NewWater Works Co. v. Hawkesford [(1859) 6 CBNS 336] atpage 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 statute must 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 AC368] and has been reaffirmed by the Privy Council in AttorneyGeneral of Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equally applicable toenforcement of rights and has been followed by the Apex Courtthroughout. must 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 AC368] and has been reaffirmed by the Privy Council in AttorneyGeneral of Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equally applicable toenforcement of rights and has been followed by the Apex Courtthroughout. 9.In the instant case, the challenge made by thepetitioner against the promotion of the 5th respondent by Ext.P9order is a dispute which has to be raised for adjudication beforethe Co-operative Arbitration Court, in view of the provisionsunder clause (c) of sub-section (1), read with clause (d) of sub-section (2) of Section 69 of the Act. As per sub-section (2) ofSection 70 of the Act, the Co-operative Arbitration Court isempowered to make such interlocutory orders as it may deemnecessary in the interest of justice, pending award of a disputereferred to it under Section 69. An award passed by the W.P.(C)No.21454/2017 -11- Arbitration Court under sub-section (1) of Section 70 of the Act isappealable before the Co-operative Tribunal, under clause (a) ofsub-section (1) of Section 82 of the Act. The provisions underSections 69 and 70 of the Act makes it abundantly clear that aneffective statutory forum has been created under the Act foradjudication of disputes of the employees of a Co-operativeBanks in connection with their employment, including promotionand inter se seniority. 10.The learned counsel for the 5[[th]] respondent wouldsubmit that the 5[th] respondent has already been grantedpromotion against a regular vacancy, during the pendency of thiswrit petition, and she is continuing as such. The learned counsel for the 5[[th]] respondent would 11.Therefore, if the petitioner is having any dispute as tothe promotion granted to the 5[th] respondent, it is for him tochallenge the same before the Co-operative Arbitration Court,invoking Section 69 of the Kerala Co-operative Societies Act.Such a dispute cannot be decided in a writ petition filed underArticle 226 of the Constitution of India. In the result, this writ petition is dismissed; however W.P.(C)No.21454/2017 -12- without prejudice to the right of the petitioner to invoke the statutory remedy under Section 69 of the Act, if so advised. Sd/- ANIL K. NARENDRAN JUDGE dsn W.P.(C)No.21454/2017 APPENDIX OF WP(C) 21454/2017 PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS NOI.C.B(3)9755/2014 DATED 04.09.2014 OFTHE 1ST RESPONDENTNOI.C.B(3)9755/2014 DATED 04.09.2014 OFTHE 1ST RESPONDENT EXHIBIT P2A TRUE COPY OF THE RESOLUTION NO.3 DATED 13.04.2016 FOR THE MANAGING COMMITTEE OF THE 3RD RESPONDENT BANKDATED 13.04.2016 FOR THE MANAGING COMMITTEE OF THE 3RD RESPONDENT BANK EXHIBIT P3 A TRUE COPY OF THE APPLICATION DATED 15.04.2016 SUBMITTED BY THE 3RD RESPONDENT BANK BEFORE THE 1ST RESPONDENT15.04.2016 SUBMITTED BY THE 3RD RESPONDENT BANK BEFORE THE 1ST RESPONDENT EXHIBIT P4A TRUE COPY OF THE DETAILS OF THE CLASSIFICATION AS ON 31/03/2016CLASSIFICATION AS ON 31/03/2016 EXHIBIT P5A TRUE COPY OF THE PROCEEDINGS NO.ADM/ESTT/E1/362/2016-17 DATED 19-04-2016 OF THE 1ST RESPONDENTNO.ADM/ESTT/E1/362/2016-17 DATED 19-04-2016 OF THE 1ST RESPONDENT EXHIBIT P6A TRUE COPY OF THE ORDER NO.CB(3)47298/16 DATED 20-05-2017 ISSUED BY THE 1ST RESPONDENTNO.CB(3)47298/16 DATED 20-05-2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT P7A TRUE COPY OF THE INTERIM ORDER DATED 06.06.2017 IN WP(C)NO.18687 0F 201706.06.2017 IN WP(C)NO.18687 0F 2017 EXHIBIT P8A TRUE COPY OF THE CIRCULAR NO.15/2011 DATED 09.02.2011DATED 09.02.2011 EXHIBIT P9A TRUE COPY OF THE PROCEEDING NO.ADM/ESTT/E1/2322/2017-18 DATED 16-05-2017 OF THE 1ST RESPONDENTNO.ADM/ESTT/E1/2322/2017-18 DATED 16-05-2017 OF THE 1ST RESPONDENT EXHIBIT P5A TRUE COPY OF THE PROCEEDINGS NO.ADM/ESTT/E1/362/2016-17 DATED 19-04-2016 OF THE 1ST RESPONDENTNO.ADM/ESTT/E1/362/2016-17 DATED 19-04-2016 OF THE 1ST RESPONDENT EXHIBIT P6A TRUE COPY OF THE ORDER NO.CB(3)47298/16 DATED 20-05-2017 ISSUED BY THE 1ST RESPONDENTNO.CB(3)47298/16 DATED 20-05-2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT P7A TRUE COPY OF THE INTERIM ORDER DATED 06.06.2017 IN WP(C)NO.18687 0F 201706.06.2017 IN WP(C)NO.18687 0F 2017 EXHIBIT P8A TRUE COPY OF THE CIRCULAR NO.15/2011 DATED 09.02.2011DATED 09.02.2011 EXHIBIT P9A TRUE COPY OF THE PROCEEDING NO.ADM/ESTT/E1/2322/2017-18 DATED 16-05-2017 OF THE 1ST RESPONDENTNO.ADM/ESTT/E1/2322/2017-18 DATED 16-05-2017 OF THE 1ST RESPONDENT EXHIBIT P10A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE TDCB EMPLOYEES UNION BEFORE THE 1ST RESPONDENT DATED 06.06.2017.SUBMITTED BY THE TDCB EMPLOYEES UNION BEFORE THE 1ST RESPONDENT DATED 06.06.2017. W.P.(C)No.21454/2017 RESPONDENTS' EXTS: EXT.R5(A): TRUE COPY OF RELEVANT PAGES OF NOTIFICATION DT.4.3.2016 OF THE ELECTION COMMISSION OF INDIA.DT.4.3.2016 OF THE ELECTION COMMISSION OF INDIA. EXT.R5(B): TRUE COPY OF QUALIFYING EXAMINATION PASS CERTIFICATE DT.19.9.2016.CERTIFICATE DT.19.9.2016. EXT.R5(C): TRUE COPY OF REPRESENTATION DT.19.4.17 SUBMITTED BEFORE THE 3RD RESPONDENT.BEFORE THE 3RD RESPONDENT.