In Commissioner Of Income Tax v. Chhabil Das Agarwal[(2014) 1 Scc 603] The Apex Court Held That Non-Entertainment Of A Writ

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940 WP(C).No. 28854 of 2018 PETITIONER: VIPIN. RS/O.MOHANAN, AGED 30 YEARSRESIDING AT PUZHAKKARAMMAL HOUSE, P.O.MALLANNUR,VIA NIRMALAGIRI, KANNUR DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENTS: THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is a Supervisor in the first respondent Co-operative Spinning Mill, which is a Society registered under the KeralaCo-operative Societies Act, 1969, has filed this writ petition under Article226 of the Constitution of India, seeking a writ of certiorari to quashExhibit-P1 order of suspension dated 21.8.2018 issued by the firstrespondent and seeking a writ of mandamus commanding the firstrespondent not to proceed further on the basis of Exhibit-P1 order ofsuspension. The petitioner has also sought for a writ of mandamuscommanding respondents 2 to 4 to take appropriate action on the basis ofExhibits-P3, P4 and P7 to P9 representations, without any further delay. 2.On 3.9.2018, when this writ petition came up for admission,this Court issued urgent notice on admission by speed post to the firstrespondent, returnable within three weeks. The learned SeniorGovernment Pleader took notice on admission for respondents 2 to 4. 3.Heard the learned counsel for the petitioner, the learnedcounsel for the first respondent Co-operative Spinning Mill and also thelearned Senior Government Pleader appearing for respondents 2 to 4. 4.The pleadings and materials on record would show that thepetitioner, while working as Supervisor in the first respondent Co-operative Spinning Mill, was placed under suspension by Exhibit-P1 orderdated 21.8.2018, wherein it has been stated that when the Managing Director of the first respondent Spinning Mill came to the factory on20.8.2018 at 4 a.m., the petitioner was found preparing for PSC test. 5.Section 69 of the Act deals with disputes to be decided by Co-operative Arbitration Court and Registrar. As per clause (c) of sub-section(1) of Section 69, notwithstanding anything contained in any law for thetime being in force, if a dispute arises between the society or itsCommittee and any past Committee, any officer, agent or employee orany past officer, past agent or past employee or the nominee, heirs orlegal representatives of any deceased officer, deceased agent ordeceased employee of the society, such disputes shall be referred to Co-operative Arbitration Court constituted under Section 70A of the Act, in thecase of non-monetary disputes and to the Registrar, in the case ofmonetary disputes, and the Arbitration Court or the Registrar, as the casemay be, shall decide such disputes and no other court or other authorityshall have jurisdiction to entertain any suit or other proceedings in respectof such disputes. As per clause (b) of sub-section (2) of Section 69, for thepurpose of sub-section (1), any dispute arising in connection withemployment of officers and servants of the different classes of societiesspecified in sub-section (1) of Section 80 of the Act, including theirpromotion and inter se seniority, 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 6.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 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 is anadequate efficacious alternative remedy available to the petitioner and hehas approached the High Court without availing the same, unless he hasmade out an exceptional case warranting such interference or there existssufficient ground to invoke the extraordinary jurisdiction under Article 226. 7.In Authorised Officer, State Bank of Travancore v. MathewK.C.[(2018) 3 SCC 85] the Apex Court reiterated that the discretionaryjurisdiction under Article 226 of the Constitution of India is not absolute buthas to be exercised judiciously in the given facts of a case and inaccordance with law. The normal rule is that a writ petition under Article226 of the Constitution of India ought not to be entertained if alternativestatutory remedies are available, except in cases falling within the welldefined exceptions as observed in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not acted in accordance with theprovisions of the enactment in question or in defiance of the fundamentalprinciples of judicial procedure, or has resorted to invoke the provisionswhich are repealed, or when an order has been passed in total violation of the principles 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) 2SCC 433] the Apex Court held that High Court will not entertain a petitionunder Article 226 of the Constitution if an effective alternative remedy isavailable to the 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 redressal ofgrievances, a writ petition should not be entertained ignoring the statutorydispensation. 8.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 even itselfin another jurisdiction for obtaining redress in the manner provided by astatute, the High Court normally will not permit by entertaining a petitionunder Article 226 of the Constitution the machinery created under thestatute to be bypassed, and will leave the party applying to it to seekresort to the machinery so set up. 9.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 Water Works 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 remedy providedby the statute must be followed, and it is not competent to theparty to pursue the course applicable to cases of the secondclass. The form given by the statute must be adopted andadhered 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. 10.In the instant case, the challenge made by the petitioneragainst Exhibit-P1 order of suspension is a dispute which has to be raisedfor adjudication before the Co-operative Arbitration Court, in view of theprovisions 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) of Section 70 ofthe Act, the Co-operative Arbitration Court is empowered to make such interlocutory orders as it may deem necessary in the interest of justice,pending award of a dispute referred to it under Section 69. An awardpassed by the Arbitration Court under sub-section (1) of Section 70 of theAct is appealable before the Co-operative Tribunal, under clause (a) ofsub-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 of theemployees of a Co-operative Banks in connection with their employment,including promotion and inter se seniority. 11.Having considered the submissions made by the learnedcounsel on both sides, with reference to the pleadings and materials onrecord, this Court finds that if the petitioner is aggrieved by Exhibit-P1order of suspension, he has to avail the statutory remedy under Section69 of the Kerala Co-operative Societies Act. 11.Having considered the submissions made by the learnedcounsel on both sides, with reference to the pleadings and materials onrecord, this Court finds that if the petitioner is aggrieved by Exhibit-P1order of suspension, he has to avail the statutory remedy under Section69 of the Kerala Co-operative Societies Act. In such circumstances, without prejudice to the right of thepetitioner to pursue the statutory remedy before the appropriate forumunder Section 69 of the Kerala Co-operative Societies Act, this writpetition stands dismissed. Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE PHOTOCOPY OF THE ORDER DATED 21/8/2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND RECEIVED BY THE PETITIONER ON 30/8/201821/8/2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND RECEIVED BY THE PETITIONER ON 30/8/2018 EXHIBIT P2A TRUE PHOTOCOPY OF THE EXPLANATION DATED 30/8/2018 FORWARDED BY THE PETITIONER TO THE 1ST RESPONDENTDATED 30/8/2018 FORWARDED BY THE PETITIONER TO THE 1ST RESPONDENT EXHIBIT P3A TRUE PHOTOCOPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENTDATED NIL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P4A TRUE PHOTOCOPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENTDATED NIL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P5A TRUE PHOTOCOPY OF THE RECEIPT DATED 22/8/2018 ISSUED BY THE 2ND RESPONDENT FOR HAVING RECEIVED EXT.P322/8/2018 ISSUED BY THE 2ND RESPONDENT FOR HAVING RECEIVED EXT.P3 EXHIBIT P6A TRUE PHOTOCOPY OF THE RECEIPT DATED 22/8/2018 ISSUED BY THE 3RD RESPONDENT FOR HAVING RECEIVED EXT.P422/8/2018 ISSUED BY THE 3RD RESPONDENT FOR HAVING RECEIVED EXT.P4 EXHIBIT P7A TRUE PHOTOCOPY OF THE REPRESENTATION DATED NIL FORWARDED BY THE PETITIONER TO THE 4TH RESPONDENTDATED NIL FORWARDED BY THE PETITIONER TO THE 4TH RESPONDENT EXHIBIT P8 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED NIL FORWARDED BY THE PETITIONER TO THE STATE POLICE CHIEFDATED NIL FORWARDED BY THE PETITIONER TO THE STATE POLICE CHIEF EXHIBIT P9 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED NIL FORWARDED BY THE PETITIONER TO THE HON'BLE CHIEF MINISTERDATED NIL FORWARDED BY THE PETITIONER TO THE HON'BLE CHIEF MINISTER csl //True copy// P.S. To Judge