In Commissioner Of Income Tax v. The Board Of Directors

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, 1940 WP(C).No. 26940 of 2018 PETITIONERS: PAUL CHACKOAGED 54 YEARSS/O.CHACKO,DEPUTY MANAGER,KERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.,REGIONAL OFFICE, KOZHIKODE - 673 001,RESIDING AT HOUSE NO.38/361-C,IKK ROAD, EAST HILL,KOZHIKODE - 673 005. BY ADVS.SRI.D.KISHORESMT.MEERA GOPINATHSMT.MINI GOPINATHSRI.R.MURALEEKRISHNAN (MALAKKARA) RESPONDENTS: 1THE BOARD OF DIRECTORSREPRESENTED BY ITS PRESIDENT,KERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.,STATUE JUNCTION, THIRUVANANTHAPURAM - 695 001.2THE MANAGING DIRECTORKERALA STATE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.,STATUE JUNCTION,THIRUVANANTHAPURAM - 695 001. 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 petitioner, who is working as Deputy Manager in Kerala StateCo-operative Agricultural & Rural Development Bank Ltd., has filed this writpetition under Article 226 of the Constitution of India, seeking a writ ofmandamus commanding the respondents to promote him as a RegionalManager in one of the existing four vacancies. The petitioner has also soughtfor a writ of mandamus or any other appropriate writ, order or directioncommanding the second respondent to consider and pass orders on Exhibit-P2 forthwith. 2.On 13.8.2018, the learned Standing Counsel sought time to filecounter affidavit. On 16.8.2018, this Court ordered that any promotions madeby respondents 1 and 2 to the post of Regional Manager, will be subject to theoutcome of this writ petition. 3.Section 69 of the Kerala Co-operative Societies Act, 1969 dealswith disputes to be decided by 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 dispute arises betweenthe society or its Committee and any past Committee, any officer, agent oremployee or any past officer, past agent or past employee or the nominee,heirs or legal 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 of monetarydisputes, and the Arbitration Court or the Registrar, as the case may be, shalldecide such disputes and no other court or other authority shall havejurisdiction to entertain any suit or other proceedings in respect of suchdisputes. As per clause (b) of sub-section (2) of Section 69, for the purpose ofsub-section (1), any dispute arising in connection with employment of officersand servants 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 rule oflaw. Undoubtedly, it is within the discretion of the High Court to grant reliefunder Article 226 of the Constitution of India, despite the existence ofalternative remedy. However, High Court must not interfere if there is anadequate efficacious alternative remedy available to the petitioner and he hasapproached the High Court without availing the same, unless he has madeout an exceptional case warranting such interference or there exists sufficientground to invoke the extraordinary jurisdiction under Article 226. 5.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 in accordancewith law. The normal rule is that a writ petition under Article 226 of theConstitution of India ought not to be entertained if alternative statutoryremedies are available, except in cases falling within the well definedexceptions as observed in Chaabil Das Agarwal's case (supra), i.e., wherethe statutory authority has not acted in accordance with the provisions of theenactment in question or in defiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions which are repealed, orwhen an order has been passed in total violation of the principles of naturaljustice. After referring to the law laid down in Thansingh Nathmal v.Superintendent of Taxes and Titaghur Paper MillsCompany Ltd. v. State of Orissa [(1983) 2 SCC 433] the Apex Court heldthat High Court will not entertain a petition under Article 226 of theConstitution if an effective alternative remedy is available to the aggrievedperson or the statute under which the action complained of contains amechanism for redressal of grievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. 6.In Thansingh Nathmal's case (supra) a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and the exercise thereof is notsubject to any restrictions except the territorial restrictions which are expresslyprovided in the Articles. But the exercise of the jurisdiction is discretionary: it isnot exercised merely because it is lawful to do so. The very amplitude of thejurisdiction demands that it will ordinarily be exercised subject to certain selfimposed limitations. Resort to that jurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suit or other mode prescribed bystatute. Ordinarily, the court will not entertain a petition for a writ under Article226, where the petitioner has an alternative remedy, which without beingunduly onerous, provides an equally efficacious remedy. Again the High Courtdoes not generally enter upon a determination of questions which demand anelaborate examination of evidence to establish the right to enforce for whichthe writ is claimed. The High Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal, to correct errors of fact, anddoes not by assuming jurisdiction under Article 226 trench upon an alternativeremedy provided by statute for obtaining relief. Where it is open to theaggrieved petitioner to move another tribunal or even itself in anotherjurisdiction for obtaining redress in the manner provided by a statute, the HighCourt normally will not permit by entertaining a petition under Article 226 ofthe Constitution the machinery created under the statute to be bypassed, andwill leave the party applying to it to seek resort to the machinery so set up. 7.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for acomplete machinery to challenge an order of assessment, and the impugnedorders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now wellrecognised that where a right or liability is created by a statute which gives aspecial remedy 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 CBNS336] at page 356 in the following passage: 7.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for acomplete machinery to challenge an order of assessment, and the impugnedorders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now wellrecognised that where a right or liability is created by a statute which gives aspecial remedy 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 CBNS336] 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 third class,viz., where a liability not existing at common law is created by astatute which at the same time gives a special and particularremedy for enforcing it ..... the remedy provided by the statutemust be followed, and it is not competent to the party to pursuethe course applicable to cases of the second class. The formgiven by the statute must be adopted and adhered to."established founded upon statute ..... But there is a third class,viz., where a liability not existing at common law is created by astatute which at the same time gives a special and particularremedy for enforcing it ..... the remedy provided by the statutemust be followed, and it is not competent to the party to pursuethe course applicable to cases of the second class. The formgiven 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 AC 368] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobagov. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Maskand Co. . It has also been held to be equally applicable toenforcement of rights and has been followed by the Apex Court throughout. 8.In the instant case, the claim made by the petitioner for promotionto the post of Regional Manager is a dispute which has to be raised foradjudication 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 of theAct, the Co-operative Arbitration Court is empowered to make suchinterlocutory orders as it may deem necessary in the interest of justice,pending award of a dispute referred to it under Section 69. An award passedby the 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 69 and 70 of theAct makes it abundantly clear that an effective statutory forum has beencreated under the Act for adjudication of disputes of the employees of a Co-operative Banks in connection with their employment, including promotion andinter 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 a LargerBench of this Court was as to whether a writ petition under Article 226 of theConstitution of India is maintainable against Co-operative Societies registeredunder the Kerala Co-operative Societies Act. After referring to the provisionsunder the Act, this Court held that writ petitions are maintainable against Co-operative Societies in certain circumstances, namely, when the action 9.In Association of Milma Officers v. State of Kerala [2015 (1)KLT 849], one of the issues that came up for consideration before a LargerBench of this Court was as to whether a writ petition under Article 226 of theConstitution of India is maintainable against Co-operative Societies registeredunder the Kerala Co-operative Societies Act. After referring to the provisionsunder the Act, this Court held that writ petitions are maintainable against Co-operative Societies in certain circumstances, namely, when the action complained of in the writ petition is of any statutory violation on the part of theCo-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 absence ofbreach of any statutory duty or public duty, a writ petition cannot beentertained against a Co-operative Society. In the said decision, the LargerBench held that the Full Bench judgment in Bhaskaran and others v.Additional Secretary and others [1987 (2) KLT 903], cannot be read asholding that writ petition will lie only against a Co-operative Society, which isState or authority within the meaning 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 of ThiruvananthapuramRegional Co-operative Milk Producers Union Ltd., who was governed by theStaff Regulations of the said Union. It was the case of the petitioners thateven though the 2[nd] petitioner was eligible to be appointed in the post ofSenior Manager (Diary), respondents 3 and 4 were taking hasty steps toappoint the 7[th] respondent to the said post. After referring to the StaffRegulations, this Court held that the said Regulation, being not of statutorynature, 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 not havebeen made the subject matter of writ proceedings. Since no infraction of anystatutory provision or violation of any public duty was alleged, this Court held that the writ petition filed under Article 226 of the Constitution is notmaintainable. 11.Today when the case is taken up for further consideration, it issubmitted by the learned counsel for the petitioner that the petitioner may bepermitted to withdraw this writ petition without prejudice to his right to movethe statutory authority under Section 69 of the Co-operative Societies Act. Recording the above submission made by the learned counsel for thepetitioner, this writ petition is dismissed as withdrawn, reserving the aforesaidright of the petitioner. Sd/- ANIL K.NARENDRAN JUDGE csl