In Commissioner Of Income Tax v. Chhabil Das Agarwal

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY ,THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940WP(C).No. 26950 of 2018 PETITIONERS: 1UNNIKRISHNA VARMA. K AGED 56 YEARS, S/O.KERALA VARMA RAJA G, ASSISTANT MANAGER, KERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD, REGIONAL OFFICE, ERNAKULAM 682 020, RESIDING AT ANJALI, ERUVELI, CHOTTANIKKARA PO, ERNAKULAM 682 312. 2LAVOSE.V.V AGED 55 YEARS,S/O.VARKEY, ASSISTANT MANAGER, KERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD, REGIONAL OFFICE, WAYANAD 683 121, RESIDING AT VALLINAL, VADAYAMBADI PO, PUTHENCRUZ (VIA), ERNAKULAM 682 308. BY ADVS.SRI.D.KISHORESMT.MEERA GOPINATHSMT.MINI GOPINATHSRI.R.MURALEEKRISHNAN (MALAKKARA) RESPONDENTS: 1THE BOARD OF DIRECTORS REPRESENTED BY ITS PRESIDENT, KERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.STATUE JUNCTION, THIRUVANANTHAPURAM 695 001.KERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.STATUE JUNCTION, THIRUVANANTHAPURAM 695 001. THE BOARD OF DIRECTORS REPRESENTED BY ITS PRESIDENT, 2THE MANAGING DIRECTORKERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD, STATUE JUNCTION, THIRUVANANTHAPURAM 695 001.KERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD, STATUE JUNCTION, THIRUVANANTHAPURAM 695 001. KERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL BY ADV. SRI.GEORGE POONTHOTTAM,SC FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioners, who are working as Assistant Managers in KeralaState Co-operative Agricultural & Rural Development Bank Ltd., havefiled this writ petition under Article 226 of the Constitution of India, seekinga writ of mandamus commanding the respondents to promote thepetitioners as Deputy Managers in the existing vacancies forthwith and awrit of mandamus commanding the respondents to consider and passorders on Exhibits-P3 to P5. 2.On 16.8.2018, this Court ordered that any promotions madeby respondents 1 and 2 to the post of Deputy Manager, will be subject tothe outcome of the writ petition. 3.Section 69 of the Kerala Co-operative Societies Act, 1969deals with disputes to be decided by Co-operative Arbitration Court andRegistrar. As per clause (c) of sub-section (1) of Section 69,notwithstanding anything contained in any law for the time being in force,if a dispute arises between the society or its Committee and any pastCommittee, any officer, agent or employee or any past officer, past agentor past employee or the nominee, heirs or legal representatives of anydeceased officer, deceased agent or deceased employee of the society,such disputes shall be referred to Co-operative Arbitration Courtconstituted under Section 70A of the Act, in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes, and theArbitration Court or the Registrar, as the case may be, shall decide suchdisputes and no other court or other authority shall have jurisdiction toentertain any suit or other proceedings in respect of such disputes. As perclause (b) of sub-section (2) of Section 69, for the purpose of sub-section(1), any dispute arising in connection with employment of officers andservants of the different classes of societies specified in sub-section (1) ofSection 80 of the Act, including their promotion and inter se seniority, shallalso be deemed to be disputes. 4.In Commissioner of Income Tax v. Chhabil Das Agarwal disputes and to the Registrar, in the case of monetary disputes, and theArbitration Court or the Registrar, as the case may be, shall decide suchdisputes and no other court or other authority shall have jurisdiction toentertain any suit or other proceedings in respect of such disputes. As perclause (b) of sub-section (2) of Section 69, for the purpose of sub-section(1), any dispute arising in connection with employment of officers andservants of the different classes of societies specified in sub-section (1) ofSection 80 of the Act, including their promotion and inter se seniority, shallalso 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 writpetition under Article 226 of the Constitution of India when an efficaciousalternative remedy is available is a rule and self imposed limitation. It isessentially a rule of policy, convenience and discretion rather than a ruleof law. Undoubtedly, it is within the discretion of the High Court to grantrelief under Article 226 of the Constitution of India, despite the existenceof alternative remedy. However, High Court must not interfere if there isan adequate efficacious alternative remedy available to the petitioner andhe has approached the High Court without availing the same, unless hehas made 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 India isnot absolute but has to be exercised judiciously in the given facts of acase and in accordance with law. The normal rule is that a writ petitionunder Article 226 of the Constitution of India ought not to be entertained ifalternative statutory remedies are available, except in cases falling withinthe well defined exceptions as observed 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 in defiance of thefundamental principles of judicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order has been passed in totalviolation of the principles of natural justice. After referring to the law laiddown in Thansingh 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 not entertaina petition under Article 226 of the Constitution if an effective alternativeremedy is available to the aggrieved person or the statute under whichthe action complained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum is created by law forredressal of grievances, a writ petition should not be entertained ignoringthe statutory dispensation. 6.In Thansingh Nathmal's case (supra) a Constitution Benchofthe Apex Court held that, the jurisdiction of the High Court under Article226 of the Constitution is couched in wide terms and the exercise thereofis not subject to any restrictions except the territorial restrictions which areexpressly provided in the Articles. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it is lawful to do so. Thevery amplitude of the jurisdiction demands that it will ordinarily beexercised subject to certain self imposed limitations. Resort to thatjurisdiction is not intended as an alternative remedy for relief which maybe obtained in a suit or other mode prescribed by statute. Ordinarily, thecourt will not entertain a petition for a writ under Article 226, where thepetitioner has an alternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the High Court does notgenerally enter upon a determination of questions which demand anelaborate examination of evidence to establish the right to enforce forwhich the writ is claimed. The High Court does not, therefore, act as acourt of appeal against the decision of a court or tribunal, to correct errorsof fact, and does not by assuming jurisdiction under Article 226 trenchupon an alternative remedy provided by statute for obtaining relief. Whereit is open to the aggrieved petitioner to move another tribunal or evenitself in another jurisdiction for obtaining redress in the manner providedby a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created underthe statute to be bypassed, and will leave the party applying to it to seekresort to the machinery so set up. 7.In Titaghur Paper Mills' case (supra) a Three-Judge Benchof the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for acomplete machinery to challenge an order of assessment, and theimpugned orders of assessment can only be challenged by the modeprescribed by the Act and not by a petition under Article 226 of theConstitution. It is now well recognised that where a right or liability iscreated by a statute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of. This rule wasstated with great clarity by Willes, J. in Wolverhampton New WaterWorks Co. v. Hawkesford [(1859) 6 CBNS 336] at page 356 in thefollowing 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 hasbeen reaffirmed by the Privy Council in Attorney General of Trinidadand Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has also been held to beequally applicable to enforcement of rights and has been followed by theApex 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 hasbeen reaffirmed by the Privy Council in Attorney General of Trinidadand Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has also been held to beequally applicable to enforcement of rights and has been followed by theApex Court throughout. 8.In the instant case, the claim made by the petitioners forpromotion to the post of Deputy Managers is a dispute which has to beraised for adjudication before the Co-operative Arbitration Court, in viewof the provisions under 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 is empowered tomake such interlocutory orders as it may deem necessary in the interestof justice, pending award of a dispute referred to it under Section 69. Anaward passed by the Arbitration Court under sub-section (1) of Section 70of the Act is appealable before the Co-operative Tribunal, under clause(a) of sub-section (1) of Section 82 of the Act. The provisions underSections 69 and 70 of the Act makes it abundantly clear that an effectivestatutory forum has been created under the Act for adjudication ofdisputes of the employees of a Co-operative Banks in connection withtheir employment, 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 consideration before aLarger Bench of this Court was as to whether a writ petition under Article226 of the Constitution of India is maintainable against Co-operativeSocieties registered under the Kerala Co-operative Societies Act. Afterreferring to the provisions under the Act, this Court held that writ petitionsare maintainable against Co-operative Societies in certain circumstances,namely, when the action complained of in the writ petition is of anystatutory violation on the part of the Co-operative Society or the action ofthe Co-operative Society, if falls in a public domain or breach of publicduty is complained of. In the absence of breach of any statutory duty orpublic duty, a writ petition cannot be entertained against a Co-operativeSociety. In the said decision, the Larger Bench held that the Full Benchjudgment in Bhaskaran and others v. Additional Secretary and others[1987 (2) KLT 903], cannot be read as holding that writ petition will lieonly against a Co-operative Society, which is State or authority within themeaning of Article 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 was thecase of the petitioners that even though the 2[nd] petitioner was eligible tobe 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 the submission isaccepted that action of the respondent in proceeding to appoint the 7[th]respondent was in violation of the Staff Regulation, the said violation ofthe non-statutory provision could not have been made the subject matterof writ proceedings. Since no infraction of any statutory provision orviolation of any public duty was alleged, this Court held that the writpetition filed under Article 226 of the Constitution is not maintainable. 11.Today when the case is taken up for further consideration, itis submitted by the learned counsel for the petitioners that the petitionersmay be permitted to withdraw this writ petition without prejudice to hisright to move the statutory authority under Section 69 of the Co-operativeSocieties Act. 11.Today when the case is taken up for further consideration, itis submitted by the learned counsel for the petitioners that the petitionersmay be permitted to withdraw this writ petition without prejudice to hisright to move the statutory authority under Section 69 of the Co-operativeSocieties Act. Recording the above submission made by the learned counsel forthe petitioners, this writ petition is dismissed as withdrawn, reserving theaforesaid right of the petitioners. csl //True Copy// P.S. To Judge Sd/- ANIL K.NARENDRAN JUDGE