Arundhathip A., Martin P., P.A. Vijayakumaran, and V.R. Manoj v. State of Kerala, The Thrissur Taluk Co-operative College Educational Society Ltd., and The Cooperative Arbitration Court (Northern), Kozhikode

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 WP(C) NO. 38930 OF 2023`** ``` PETITIONERS: ``` ``` 1ARUNDHATHIP.A. AGED63YEARS W/O.HAREESAN,VALAPPARAMBILHOUSE,PUTHENPEEDIKA, VADAKKUMRIVILLAGEANDDESOM,THRISSURTALUK,THRISSUR - DISTRICT,PIN680624. 2MARTINV.P. AGED45YEARS S/O.PAULV.P.,VEERALYHOUSE,PUTHURVILLAGE,P.O. - PONNUKKARA,THRISSUR.,PIN680306. 3P.A.VIJAYAKUMARAN AGED56YEARS S/O.AYYAPPANEZHUTHACHAN(LATE),PUTHENMADOM(H),P.O. MADAKKATHARA,VELLANIKKARAVILLAGE,PADINJAREVELLANIKKARA - DESOM,THRISSURTALUK,THRISSUR.,PIN680651. 4V.R.MANOJ AGED51YEARS S/O.RAGHAVAN(LATE),VELAKKAPPADYHOUSE,P.O.AVINISSEREY, - THRISSURTALUK,THRISSUR.,PIN680313. BYADVS. DHANYAP.ASHOKAN M.R.VENUGOPAL S.MUHAMMADALIKHAN ``` ## **`RESPONDENTS:`** ``` 1STATEOFKERALA REPRESENTEDBYTHESECRETARYTOGOVERNMENT,DEPARTMENTOF CO-OPERATION,GOVERNMENTSECRETARIAT,THIRUVANANTHAPURAM., - PIN695001. 2THETRICHURTALUKCO-OPERATIVECOLLEGEEDUCATIONALSOCIETY LTD.,NO.R.728 REPRESENTEDBYITSSECRETARY,KALLINGALLANE,THRISSUR., - PIN680022. 3THECOOPERATIVEARBITRATIONCOURT(NORTHERN) - KOZHIKKODE,PIN673002. SMT.SURYABINOY,SR.GP ``` ``` WP(C)NO.38930OF2023 ``` ``` 2 ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 27.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(C)NO.38930OF2023 ``` ``` 3 ``` ## **JUDGMENT** While working as Lecturers in the Co-operative College run by the 2nd respondent Society, disciplinary proceedings were initiated against the petitioners herein. Charge memos were issued and after receiving their replies, an Enquiry Officer was appointed to conduct a domestic enquiry. The petitioners participated in the enquiry and on its conclusion, a report dated 29.10.2013 was submitted, finding the petitioners guilty of all the charges levelled against them. 2. The Disciplinary Committee accepted the findings and they decided to impose the punishment of ‘dismissal from service’. The petitioners submitted a reply to the show cause, and without heeding to their replies, the 1st petitioner was served with Ext.P9 order informing that the Committee had decided to recommend the imposition of punishment of dismissal. 3. The petitioners assert that their appeal before the Managing Committee against Ext.P9 order was dismissed by Ext.P10. 4. Challenging Ext.P10, the petitioners preferred separate cases before the Co-operative Arbitration Court, Kozhikode. By Ext.P11 order, the cases were allowed, and the disciplinary action initiated against the ``` WP(C)NO.38930OF2023 ``` ``` 4 ``` petitioners was set aside. 5. The said order was challenged before this Court and by Ext.P12 judgment, this Court came to the conclusion that the Arbitration Court had proceeded to allow the case on the mistaken premise that the memo of charges had been issued by the Disciplinary Sub Committee and therefore in violation to the law laid down in **Kodancherrry Service Co-operative Bank v. Joshy Varghese** (2020(4) KLT 129). This Court found that allowing the case on that technical ground was improper and the matter was remanded back for fresh consideration. 6. Thereafter, the matter was taken up, and by Ext.P13 order, the Arbitration Court proceeded to dismiss the cases on its merits. The aforesaid order is under challenge in this writ petition. 7. Smt. Dhanya P Ashokan, the learned counsel, submits that the respondents have violated Rule 198(2) of the Kerala Co-operative Societies Rules, which mandates that no punishment shall be awarded to an employee unless he has informed in writing of the grounds on which action is proposed to be taken against him, and he has been afforded an opportunity including a personal hearing to defend himself. She would further contend that this Court in **Preethakumari v. Joint Registrar of Co-operative Societies (General) and Others** [2022 KHC 748] had occasion to hold that the prescriptions contained in Rule 198(2) of the KCS ``` WP(C)NO.38930OF2023 ``` ``` 5 ``` Rules are mandatory. 8. In response, Smt. Surya Benoy, the learned Government Pleader, would urge that against the order of the Arbitration Court, the petitioners have a statutory remedy in preferring an appeal to the jurisdictional Tribunal. She submits that there is no reason why this Court should entertain this writ petition when such a remedy is available to the petitioners. 9. I have considered the submissions advanced. 10. In the instant case, the petitioners challenge Ext.P13 common order passed by the Arbitration Court in ARC 40/2015 and connected cases. One of the contentions advanced by the learned counsel appearing for the petitioners is the non-compliance with the procedural Rules. At the same time, I find that the petitioners have a remedy in preferring an appeal to the Tribunal by invoking Section 82 of the Co-operative Societies Act. The question is whether when the petitioners have an alternate and efficacious remedy, which is effective and efficacious, there is any justification for approaching this Court to invoke its extraordinary jurisdiction under Article 226 of the Constitution of India. 11. The Apex Court in **South Indian Bank Ltd and others v. Naveen Mathew Philip and another** [2023 SCC Online SC 435] have outlined the principles. It was held as follows in paragraph 27 of ``` WP(C)NO.38930OF2023 ``` ``` 6 ``` ## the judgment. ## 27. The principles of law which emerge are that: 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” 12. In the instant case, the petitioners have an efficacious ``` WP(C)NO.38930OF2023 ``` ``` 7 ``` statutory remedy by preferring an appeal before the Tribunal. The petitioners can raise all their contentions, including the violation of the statutory rules. The rule of exhaustion of statutory remedies is a rule of policy convenience and discretion. In that view of the matter, it is for the petitioners to approach the Tribunal and seek appropriate remedies. 13. At this stage, the learned counsel submits that Ext.P13 order was issued on 06.03.2023, and there has occurred some delay. It is for the petitioners to approach the Tribunal and furnish explanation for the delay. I am certain that the Tribunal shall consider the same in accordance with law. Reserving the right of the petitioners to approach the Tribunal and seek their remedies, this writ petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ``` Sru ``` ``` WP(C)NO.38930OF2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 38930/2023`** ||**`APPENDIX OF WP(C) 38930/2023`**| |---|---| |`PETITIONERS EXHIBITS`|| |`Exhibit P1`|`TRUE COPY OF THE CHARGE MEMO DATED 13/08/2012`| ||`ISSUED BY THE PART TIME ADMINISTRATOR OF THE`| ||`3RD RESPONDENT TO THE 1ST PETITIONER.`| |`Exhibit P2`|`TRUE COPY OF THE REPLY DATED 25/08/2012`| ||`SUBMITTED BY THE 1ST PETITIONER.`| |`Exhibit P3`|`TRUE COPY OF THE ADDITIONAL CHARGE MEMO DATED`| ||`08/02/2013 ISSUED BY THE ADMINISTRATOR TO THE`| ||`1ST PETITIONER.`| |`Exhibit P4`|`TRUE COPY OF THE REPLY DATED 21/02/2013`| ||`SUBMITTED BY THE 1ST PETITIONER.`| |`Exhibit P5`|`TRUE COPY OF THE COMMUNICATION DATED 14/03/2013`| ||`SERVED ON THE 4TH PETITIONER.`| |`Exhibit P6`|`TRUE COPY OF THE COVERING LETTER DATED`| ||`01/11/2013 ISSUED BY THE CONVENER OF THE`| ||`DISCIPLINARY COMMITTEE TO THE 1ST PETITIONER.`| |`Exhibit P7`|`TRUE COPY OF THE REQUEST DATED 12/11/2013`| ||`SUBMITTED BY THE 1ST PETITIONER.`| |`Exhibit P8`|`TRUE COPY OF THE REPLY DATED 20/11/2013 FILED`| ||`BY THE 1ST PETITIONER.`| |`Exhibit P9`|`TRUE COPY OF THE ORDER DATED 16/11/2013 ISSUED`| ||`BY THE CONVENER OF THE DISCIPLINARY COMMITTEE`| ||`RECEIVED BY THE 1ST PETITIONER.`| |`Exhibit P10`|`TRUE COPY OF THE NOTICE DATED 07/03/2014`| ||`RECEIVED BY 1ST PETITIONER.`| |`Exhibit P11`|`TRUE COPY OF THE COMMON ORDER DATED 07/12/2021`| ||`IN ARC 40/2015, ARC 41/2015, ARC 42/2015 AND`| ||`ARC 43/2015 PASSED BY THE 2ND RESPONDENT.`| |`Exhibit P12`|`TRUE COPY OF THE JUDGMENT DATED 11/07/2022 IN`| ||`WPC 2680/2022 ISSUED BY THIS HON'BLE COURT.`| |`Exhibit P13`|`TRUE COPY OF THE COMMON ORDER DATED 06/03/2023`| ||`IN ARC 40/2015, ARC 41/2015, ARC 42/2015 AND`| ||`ARC 43/2015 PASSED BY THE 2ND RESPONDENT.`|