BIJU v. Nedungolam Service Co-operative Bank Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** ## **WP(C).No. 18009 of 2018** ## **PETITIONER:** **BIJU, AGED 40 YEARS, INTERNAL AUDITOR, NEDUNGOLAM SERVICE CO-OPERATIVE BANK LTD.NO.2845, NEDUNGOLAM P.O., KOLLAM.** **BY ADV. SRI.P.P.JACOB** ## **RESPONDENTS:** - **1 THE NEDUNGOLAM SERVICE CO-OPERATIVE BANK LTD.NO.2845 NEDUNGOLAM P.O., KOLLAM - 691 334 REPRESENTED BY ITS SECRETARY.** - **2 THE BOARD OF DIRECTORS OF THE NEDUNGOLAM SERVICE CO-OPERATIVE BANK LTD.NO.2845, NEDUNGOLAM P.O., KOLLAM - 691 334, REPRESENTED BY ITS PRESIDENT.** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KOLLAM, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KOLLAM - 691 334.** **4 PRAMOD, ACCOUNTANT, NEDUNGOLAM SERVICE CO-OPERATIVE BANK LTD.NO.2845, NEDUNGOLAM P.O., KOLLAM - 691 334.** ## **BY ADV. SRI.P.C.SASIDHARAN** ## **R3 SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 18009 of 2018** -2- ## **JUDGMENT** The petitioner, who is working as internal auditor in the 1[st] respondent Service Co-operative Bank, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Joint Registrar to consider Ext.P3 representation as per law and till such time, to keep in abeyance all further proceedings for filling up the post of Secretary and Assistant Secretary/Chief Accountant in the 1[st] respondent Bank. 2. On 01.06.2018, when this writ petition came up for admission, this Court admitted the matter on file and issued notice to respondents 1,2 and 4 by speed post, returnable in two weeks. The learned Government Pleader took notice for the 3[rd] respondent. This Court has ordered that, appointments, if any, made to the post of Secretary and Assistant Secretary/Chief Secretary will be provisional and subject to the result of the writ petition. 3. A counter affidavit has been filed on **WP(C).No. 18009 of 2018** -3- behalf of respondents 1, 2 and 4 opposing the relief sought for in this writ petition. 4. The petitioner has also filed a reply affidavit. 5. Heard the learned counsel for the petitioner, the learned counsel for respondents 1, 2 and 4 and also the learned Senior Government Pleader appearing for the 3[rd] respondent. 6. The sole issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding the 3[rd] respondent Joint Registrar to consider and dispose of Ext.P3 representation. 7. The relief sought for in Ext.P3 representation, which is one filed under Section 66 of the Kerala Co-operative Societies Act, read with Rule 176 of the Kerala Co-operative Societies Rules is an order to ensure that the Committee of the 1[st] respondent Bank is working strictly as per the provisions of the Act, Rules and its bye-laws. A bare perusal of Ext.P3 representation would make **WP(C).No. 18009 of 2018** -4- it explicitly clear that the petitioner is virtually claiming promotion to the higher post and he is also feeling aggrieved by the charge given to the 4[th] respondent in the post of Secretary. 8. 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 the time being in force, if a dispute arises between the society or its Committee and any past Committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, such disputes shall be referred to Co-operative Arbitration Court constituted under Section 70A of the Act, in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes, and the Arbitration Court or the Registrar, as the case may be, shall decide such **WP(C).No. 18009 of 2018** -5- disputes and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes. As per clause (b) of sub-section (2) of Section 69, for the purpose of sub-section (1), any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of Section 80 of the Act, including their promotion and _inter se_ seniority, shall also be deemed to be disputes. 9. Section 70(B) of the Act would make it explicitly clear that, on constitution of a Cooperative Arbitration Court, every dispute pending before the Registrar or any person invested with the power to dispose of the dispute by the Government or the Arbitrator appointed by the Registrar, in respect of non-monetary disputes, relating to the local area of jurisdiction of the Arbitration Court, shall be transferred to such Arbitration Court and the Court shall dispose of the same as if it were a dispute referred to it under Section 69. **WP(C).No. 18009 of 2018** -6- 10. 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 efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 11. In **Authorised Officer, State Bank of** **Travancore v. Mathew K.C.[(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary **WP(C).No. 18009 of 2018** -7- jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's** **case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance 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 the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR** **1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution **WP(C).No. 18009 of 2018** -8- if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. ## 12. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by **WP(C).No. 18009 of 2018** -9- statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to **WP(C).No. 18009 of 2018** -10- the machinery so set up. 13. In **Titaghur Paper Mills' case (supra)** a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders 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 well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in **Wolverhampton 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 liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by **WP(C).No. 18009 of 2018** -11- the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given 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 Tobago v. Gordon Grant and** **Co. [1935 AC 532]** and **Secretary of State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 14. In the instant case, the claim of the petitioner for promotion to higher post and also his grievance against the charge given to the 4[th] respondent in the post of Secretary is a dispute which has to be raised for adjudication before the Co-operative Arbitration Court, in view of the provisions under clause (c) of sub-section (1), read with clause (d) of sub-section (2) of Section **WP(C).No. 18009 of 2018** -12- 69 of the Act. As per sub-section (2) of Section 70 of the 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 award passed by the Arbitration Court under sub-section (1) of Section 70 of the Act is appealable 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 the Act makes it abundantly clear that an effective statutory forum has been created under the Act for adjudication of disputes of the employees of a Co-operative Banks in connection with their employment, including promotion and _inter se_ seniority. 15. In **Raveendran v. State of Kerala and** **others [2007 (3) KHC 780]** , this Court held that, any dispute including promotion and _inter se_ seniority arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of Section **WP(C).No. 18009 of 2018** -13- 80 of the Act is to be decided by the Arbitration Court. In the said judgment, this Court has also held that every pending dispute relating to the local area of jurisdiction of the Arbitration Court, shall be transferred to such Court. 16. Having considered the submissions made by the learned counsel on both sides, in the light of the law laid down in the decisions referred to supra, conclusion is irresistable that the petitoner is not entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India for the reliefS sought for in this writ petition. In such circumstances, the writ petition fails and the same is dismissed, without prejudice to the right of the petitioner to invoke the statutory remedy available under Section 69 of the Kerala Co-operative Societies Act. **==> picture [55 x 12] intentionally omitted <==** **ANIL K.NARENDRAN JUDGE** **WP(C).No. 18009 of 2018** -14- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE FEEDER CATEGORY SUB RULE APPROVED BY THE THIRD RESPONDENT DATED 5.6.2015** **EXHIBIT P2 TRUE PHOTOCOPY OF THE FINAL SENIORITY LIST OF EMPLOYEES DATED 24.10.2017 EXHIBIT P3 TRUE PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DATED 29.5.2018 EXHIBIT P4 TRUE PHOTOCOPY OF THE ACKNOWLEDGMENT RECEIPT DATED 30.5.2018 ISSUED BY THE JOINT REGISTRAR** ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **bpr**