C. Sunil Kumar v. Kollam District Co-operative Bank Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940** ## **WP(C).No. 287 of 2018** ## **PETITIONER:** **C. SUNIL KUMAR, JUNIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., PARAVOOR BRANCH, PARAVOOR, KOLLAM. BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.K.SUDHINKUMAR SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN SRI.S.K.ADHITHYAN SRI.S.VIBHEESHANAN SRI.P.MOHANDAS** ## **RESPONDENTS:** |**1**|**THE KOLLAM DISTRICT CO-OPERATIVE BANK LTD.,**| |---|---| ||**REPRESENTED BY ITS GENERAL MANAGER,**| ||**HEAD OFFICE, CHINNAKKADA, KOLLAM - 691 001.**| |**2**|**THE ADMINISTRATOR,**| ||**KOLLAM DISTRICT CO-OPERATIVE BANK LTD.,**| ||**HEAD OFFICE, CHINNAKKADA, KOLLAM - 691 001.**| |**3**|**THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,**| ||**CIVIL STATION, KOLLAM - 691 001.**| |**4**|**XAVIER. S.,**| ||**SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE**| ||**BANK LTD., KOLLAM EVENING BRANCH, CHINNAKKADA,**| ||**KOLLAM - 691 001.**| ||**BY ADVS.**| ||**SRI.P.C.SASIDHARAN, SC, KOLLAM DISTRICT CO-**| ||**OPERATIVE BANK LTD.**| ||**GOVERNMENT PLEADER**| ||**SMT.I.SHEELA DEVI**| ||**SRI. BIMAL K.NATH, SR.GP**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WPC 287 OF 2018 ## **JUDGMENT** The petitioner, who is presently working as Junior Accountant at the Head Office of Kollam District Co-operative Bank, which is a Society registered under the Kerala Co-operative Societies Act and the Rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 seniority list dated 13.11.2017 of the 2[nd] respondent Administrator to the extent of giving rank No.116 to the 4[th] respondent showing him as Senior Accountant since the promotion of the 4[th] respondent is illegal and erroneous. The petitioner has also sought for other consequential reliefs including a writ of mandamus commanding respondents 2 and 3 to promote him as Senior Accountant after reverting the 4[th] respondent and to give him suitable ranking in Ext.P3 seniority list with all consequential benefits. 2. On 05.01.2018, when this writ petition came for admission, this Court admitted the matter on file. The learned Standing Counsel took notice for respondents 1 and 2. The learned Government Pleader took notice for the 3[rd] respondent. Urgent notice by speed post was ordered to the 4[th] respondent, returnable within three weeks. 3. Section 69 of the Kerala Co-operative Societies Act, 1969 deals with disputes to be decided by Co-operative Arbitration Court 3 WPC 287 OF 2018 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 Cooperative 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 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 subsection (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. 4. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** the Apex Court held that nonentertainment of a writ petition under Article 226 of the Constitution of 4 WPC 287 OF 2018 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. 5. In **Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary 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 WPC 287 OF 2018 5 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 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. 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 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 6 WPC 287 OF 2018 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 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 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 a complete machinery to challenge an order of 7 WPC 287 OF 2018 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 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 8 WPC 287 OF 2018 and has been followed by the Apex Court throughout. 8. In the instant case, the challenge made by the petitioner against Ext.P3 seniority list, claim for promotion to the post of Senior Accountant, etc. are disputes which have 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 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. 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 Larger Bench of this Court was as to whether a writ petition WPC 287 OF 2018 9 under Article 226 of the Constitution of India is maintainable against Co-operative Societies registered under the Kerala Co-operative Societies Act. After referring to the provisions under 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 the Cooperative Society or the action of the Co-operative Society, if falls in a public domain or breach of public duty is complained of. In the absence of breach of any statutory duty or public duty, a writ petition cannot be entertained against a Co-operative Society. In the said decision, the Larger Bench held that the Full Bench judgment in **Bhaskaran and others v. Additional Secretary and others [1987 (2) KLT 903]** , cannot be read as holding that writ petition will lie only against a Cooperative Society, which is State 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 Thiruvananthapuram Regional Co-operative Milk Producers Union Ltd., who was governed by the Staff Regulations of the said Union. It was the case of the petitioners that even though the 2[nd] petitioner was eligible to be appointed in the post of Senior Manager (Diary), 10 WPC 287 OF 2018 respondents 3 and 4 were taking hasty steps to appoint the 7[th] respondent to the said post. After referring to the Staff Regulations, this Court held that the said Regulation, being not of statutory nature, even if the submission is accepted that action of the respondent in proceeding to appoint the 7[th] respondent was in violation of the Staff Regulation, the said violation of the non-statutory provision could not have been made the subject matter of writ proceedings. Since no infraction of any statutory provision or violation of any public duty was alleged, this Court held that the writ petition filed under Article 226 of the Constitution is not maintainable. In such circumstances, the reliefs sought for in this writ petition squarely falls within the scope of Section 69 of the Kerala Co-operative Societies Act. In the result, this writ petition is dismissed without prejudice to the right of the petitioner to invoke the statutory remedy under Section 69 of the Kerala Co-operative Societies Act by approaching the Co-operative Arbitration Court. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 11 WPC 287 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE RECRUITMENT RULES PUBLISHED BY THE FIRST RESPONDENT BANK.** **EXHIBIT P2** **TRUE COPY OF THE MEMO ISSUED BY THE FIRST RESPONDENT DATED 03.01.2008.** - **EXHIBIT P3** **TRUE COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST PUBLISHED BY THE 2ND RESPONDENT DATED 13.11.2017.** - **EXHIBIT P4** **TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 20.11.2017 BEFORE THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 03.10.2011.** - **EXHIBIT P6** **TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 18.11.2017.** - **1ST AND 2ND RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A)** **A TRUE COPY OF THE ORDER OF THE ARBITRATION COURT IN A.R.C.NO.7/2008.** **TRUE COPY** **P.A. TO JUDGE**