In Commissioner Of Income Tax v. Wp(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942 WP(C).No.23131 OF 2020(N) PETITIONERS: 1AJAYAKUMAR,AGED 26 YEARS, SON OF ASHOKAN, KIZHAKKETHAYYIL PATHINETTIL CHIRA, ALAPPUZHA-688 561.AGED 26 YEARS, SON OF ASHOKAN, KIZHAKKETHAYYIL PATHINETTIL CHIRA, ALAPPUZHA-688 561. 2MANOJ P.A.,AGED 39 YEARS, SON OF ANTONY VARGHEESE, PATTANIPARAMBIL, ARATTUVAZHY P O, ALAPPUZHA-688 524.AGED 39 YEARS, SON OF ANTONY VARGHEESE, PATTANIPARAMBIL, ARATTUVAZHY P O, ALAPPUZHA-688 524. 3NAVAS, AGED 40 YEARS, SON OF NARAYANA PANICKER, KRISHNA SADANAM, KALAVOOR, ALAPPUZHA-688 522.KRISHNA SADANAM, KALAVOOR, ALAPPUZHA-688 522. 4AKHIL KUMAR,AGED 24 YEARS, SON OF ANIYAN KUNJ, PADIJAREKALAM, ATTUVATHALA, ALAPPUZHA-688 503.AGED 24 YEARS, SON OF ANIYAN KUNJ, PADIJAREKALAM, ATTUVATHALA, ALAPPUZHA-688 503. BY ADVS.SMT.G.N.DEEPASMT.T.U.ANUKRISHNASMT.G.N.DEEPASMT.T.U.ANUKRISHNA RESPONDENTS: 1THE DISTRICT LABOUR OFFICER,OFFICE OF THE DLO,THONDANKULANGARA, THATHAMPALLY, ALAPPUZHA - 688013.OFFICE OF THE DLO,THONDANKULANGARA, THATHAMPALLY, ALAPPUZHA - 688013. 2THE ASSISTANT LABOUR OFFICER,FIRST CIRCLE ALAPPUZHA, FIRST FLOOR, SAS BUILDING, THONDANKULANGRA, ALAPPUZHA-688 013.FIRST CIRCLE ALAPPUZHA, FIRST FLOOR, SAS BUILDING, THONDANKULANGRA, ALAPPUZHA-688 013. 3A.BALAKRISHNAN, AGED 57 YEARS, SON OF P. ARJUNA REDDIAR, SOLE PROPRIETOR, SREELAKSHMI DISTRIBUTORS AND GOOD MORNING ENTERPRISES, PALACE WARD, ALAPPUZHA-688 011.SOLE PROPRIETOR, SREELAKSHMI DISTRIBUTORS AND GOOD MORNING ENTERPRISES, PALACE WARD, ALAPPUZHA-688 011. WP(C).No.23131 OF 2020(N) 4THE CIRCLE INSPECTOR OF POLICE,NORTH POLICE STATION, ALAPPUZHA-688 012.NORTH POLICE STATION, ALAPPUZHA-688 012. 5THE DEPUTY SUPERINTENDENT OF POLICE,OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, ALAPPUZHA-688 001.OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, ALAPPUZHA-688 001. 6SHAJI, CONVENER, CITU, THAIPARAMBIL HOUSE, CANAL WARD, ALAPPUZHA-688 007. 7SALIM, INTUC, KOCHINGAMPARAMBU, CANAL WARD, ALAPPUZHA-688 007. 8KERALA HEADLOAD WORKERS WELFARE BOARDREPRESENTED BY ITS ALAPPUZHA DISTRICT COMMITTEE, MUNICIPAL SHOPPING COMPLEX, THATHAMPALLY P.O., ALAPPUZHA-688 013. R1,R2,R4&R5 SRI.RAVIKRISHNAN A.,GOVERNMENT PLEADER R8SRI.S KRISHNAMOORTHY,STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON30.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Petitioners 1 to 3 are stated to be the workers ofM/s.Sreelakshmi Distributors and petitioners 4 and 5 arestated to be the workers of M/s.Good Morning Enterprises,both owned by the 4[th] respondent. The petitioners have filedthis writ petition under Article 226 of the Constitution of Indiaseeking a writ of mandamus commanding respondents 4 and5 to grant them sufficient police protection to do loading andunloading work in the godown of M/s.Sreelakshmi Distributorsand M/s.Good Morning Enterprises, Building No.46/784, CCNBRoad, Near Kallupalam, Alappuzha. The petitioners have alsosought for is a writ of certiorari to quash Ext.P6 order dated20.10.2020 of the 2[nd] respondent Assistant Labour Officer,whereby the applications made by the petitioners for issuanceof identity cards under Rule 26A of the Kerala HeadloadWorkers Rules, 1981 stand rejected; and a writ of mandamuscommanding respondents 1 and 2 to issue necessary identitycards under Rule 26A, in Form XI of the Kerala HeadloadWorkers Rules, 1981. 2.Heard the learned counsel for the petitioners, thelearned Government Pleader appearing for respondents 1, 2, 4 and 5, the learned Standing Counsel for the 8[th] respondentand also the learned counsel for the 3[rd] respondent. 3. The petitioners made applications under Rule 26A 2.Heard the learned counsel for the petitioners, thelearned Government Pleader appearing for respondents 1, 2, 4 and 5, the learned Standing Counsel for the 8[th] respondentand also the learned counsel for the 3[rd] respondent. 3. The petitioners made applications under Rule 26A of the Kerala Headload Workers Rules, which stand rejectedby Ext.P6 order dated 20.10.2020 of the 2[nd] respondent. Thesaid order is appealable under Section 26C of the KeralaHeadload Workers Act, before the 2[nd] respondent DistrictLabour Officer. The petitioners have already availed thatstatutory remedy, by filing Ext.P7 memorandum of appeal. 4.In Commissioner of Income Tax v. Chhabil DasAgarwal [(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 essentiallya rule of policy, convenience and discretion rather than a ruleof law. Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 of the Constitution ofIndia, despite the existence of alternative remedy. However,High Court must not interfere if there is an adequateefficacious alternative remedy available to the petitioner andhe has approached the High Court without availing the same, unless he has made out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 5.InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction underArticle 226 of the Constitution of India is not absolute but hasto be exercised judiciously in the given facts of a case and inaccordance with law. The normal rule is that a writ petitionunder Article 226 of the Constitution of India ought not to beentertained if alternative statutory remedies are available,except in cases falling within the well defined exceptions asobserved 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 indefiance of the fundamental principles of judicial procedure,or has resorted to invoke the provisions which are repealed,or when an order has been passed in total violation of theprinciples 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 Courtheld that High Court will not entertain a petition under Article226 of the Constitution if an effective alternative remedy isavailable to the aggrieved person or the statute under whichthe action complained of contains a mechanism for redressalof grievance. Therefore, when a statutory forum is created bylaw for redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. 6.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of theConstitution is couched in wide terms and the exercise thereofis not subject to any restrictions except the territorialrestrictions which are expressly provided in the Articles. Butthe exercise of the jurisdiction is discretionary: it is notexercised merely because it is lawful to do so. The veryamplitude of the jurisdiction demands that it will ordinarily beexercised subject to certain self imposed limitations. Resort tothat jurisdiction is not intended as an alternative remedy forrelief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertain a 6.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of theConstitution is couched in wide terms and the exercise thereofis not subject to any restrictions except the territorialrestrictions which are expressly provided in the Articles. Butthe exercise of the jurisdiction is discretionary: it is notexercised merely because it is lawful to do so. The veryamplitude of the jurisdiction demands that it will ordinarily beexercised subject to certain self imposed limitations. Resort tothat jurisdiction is not intended as an alternative remedy forrelief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner hasan alternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the High Courtdoes not generally enter upon a determination of questionswhich demand an elaborate examination of evidence toestablish the right to enforce for which the writ is claimed.The High Court does not, therefore, act as a court of appealagainst the decision of a court or tribunal, to correct errors offact, and does not by assuming jurisdiction under Article 226trench upon an alternative remedy provided by statute forobtaining relief. Where it is open to the aggrieved petitioner tomove another tribunal or even itself in another jurisdiction forobtaining redress in the manner provided by a statute, theHigh Court normally will not permit by entertaining a petitionunder Article 226 of the Constitution the machinery createdunder the statute to be bypassed, and will leave the partyapplying 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 TaxAct, 1947 provides for a complete machinery to challenge anorder of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act andnot by a petition under Article 226 of the Constitution. It isnow well recognised that where a right or liability is createdby a statute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of. Thisrule was stated with great clarity by Willes, J. inWolverhampton New Water Works Co. v. Hawkesford[(1859) 6 CBNS 336] at page 356 in the following passage: "There are three classes of cases in which a liabilitymay be established founded upon statute ..... But thereis a third class, viz., where a liability not existing atcommon law is created by a statute which at the sametime gives a special and particular remedy for enforcingit ..... the remedy provided by the statute must befollowed, and it is not competent to the party to pursuethe course applicable to cases of the second class. Theform 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 NewspaperLtd.[1919 AC 368] and has been reaffirmed by the PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has also been held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. 8.In view of the law laid down in the decisionsreferred to supra, the petitioners cannot challenge Ext.P6order dated 20.10.2020 of the 2[nd] respondent, on the groundsraised in this writ petition, by invoking the writ jurisdictionunder Article 226 of the Constitution of India. 9.The petitioners have already availed the statutoryremedy by filing Ext.P7 appeal on 22.10.2020. It is for thepetitioners to pursue that appeal. The petitioners have already availed the statutory 10. Another relief sought for in this writ petition is for been held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. 8.In view of the law laid down in the decisionsreferred to supra, the petitioners cannot challenge Ext.P6order dated 20.10.2020 of the 2[nd] respondent, on the groundsraised in this writ petition, by invoking the writ jurisdictionunder Article 226 of the Constitution of India. 9.The petitioners have already availed the statutoryremedy by filing Ext.P7 appeal on 22.10.2020. It is for thepetitioners to pursue that appeal. The petitioners have already availed the statutory 10. Another relief sought for in this writ petition is for police protection, i.e., a writ of mandamus commandingrespondents 4 and 5 to grant sufficient police protection tothe petitioners to do the loading and unloading work in thegodown (Building No.46/784) of Sreelakshmi Distributors andGood Morning Enterprises. 11.Admittedly, the area in question is a schemecovered area. The applications made by the petitioners forissuance of identity cards under Rule 26A of the KeralaHeadload Workers Rules have already been rejected. In suchcircumstances, the petitioners cannot seek a writ of Admittedly, the area in question is a scheme mandamus commanding respondents 4 and 5 to grant policeprotection so as to enable them to do the loading andunloading work in the establishment in question, which issituated in a scheme covered area. In the result, this writ petition fails and the same is accordingly dismissed. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER DATED 11.08.2020.APPLICATION SUBMITTED BY THE 1ST PETITIONER DATED 11.08.2020. EXHIBIT P2TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER, DATED 11.08.2020.APPLICATION SUBMITTED BY THE 2ND PETITIONER, DATED 11.08.2020. EXHIBIT P3TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE 3RD PETITIONER, DATED 11.08.2020.APPLICATION SUBMITTED BY THE 3RD PETITIONER, DATED 11.08.2020. EXHIBIT P4TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE 4TH PETITIONER, DATED 11.08.2020.APPLICATION SUBMITTED BY THE 4TH PETITIONER, DATED 11.08.2020. EXHIBIT P5TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE 5TH PETITIONER, DATED 11.08.2020.APPLICATION SUBMITTED BY THE 5TH PETITIONER, DATED 11.08.2020. EXHIBIT P6TRUE PHOTOSTAT COPY OF THE ORDER NO. HL/11-16/20, DATED 20.10.2020 OF THE 2ND RESPONDENT.HL/11-16/20, DATED 20.10.2020 OF THE 2ND RESPONDENT. EXHIBIT P7TRUE PHOTOSTAT COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT, DATED 23.10.2020.MEMORANDUM FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT, DATED 23.10.2020. EXHIBIT P8TRUE PHOTOSTAT COPY OF THE REPRESENTATION MADE BY THE PETITIONERBEFORE THE 5TH RESPONDENT, DATED 23.10.2020.REPRESENTATION MADE BY THE PETITIONERBEFORE THE 5TH RESPONDENT, DATED 23.10.2020. RESPONDENTS' EXHIBITS:NIL