Dr. E.M. Joseph v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 4TH DAY OF JANUARY 2016/14TH POUSHA, 1937 WP(C).No. 21485 of 2015 (I) ------------------------------------- PETITIONER : - ---------------------- DR.E.M. JOSEPH, S/o E.J. MATHEW, ELANJIMATTOM HOUSE, KURAVILANGAD VILLAGE, KURAVILANGAD P.O, KOTTAYAM DISTRICT, PIN 686 633. BY ADVS.SRI.BABY THOMAS SRI.LATHEESH SEBASTIAN RESPONDENTS : - -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPRUAM - 695 001. 3. THE DIRECTOR, DEPARTMENT OF HOMEOPATHY, THIRUVANANTHAPRUAM. 4. KERALA STATE HOMOEOPATHIC CO-OPERATIVE PHARMACY LTD NO. XII/37 TO 39, MARARIKULAM SOUTH, PATHIRPPALLY P.O, ALAPPUZHA 688 521, REPRESENTED BY ITS MANAGING DIRECTOR. 5. DR. SANTHOSH P.V., MANAGING DIRECTOR, KERALA STATE HOMOEOPATHIC CO-OPERATIVE PHARMACY LTD NO. XII/37 TO 39, MARARIKULAM SOUTH, PATHIRAPPALLY P.O., ALAPPUZHA 688 521. R5 BY ADV. SRI.N.RAGHURAJ R5 BY ADV. SMT.K.AMMINIKUTTY R4 BY ADV. SRI.C.A.CHACKO R1-R2 BY SPL. GOVERNMENT PLEADER SRI. D. SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21485 of 2015 (I) -------------------------------------- ## **APPENDIX** ## PETITIONER'S EXHIBITS : - ------------------------------------EXT.P1 : TRUE COPY OF THE BYE-LAW OF THE 4TH RESPONDENT SOCIETY. EXT.P2 : TRUE COPY OF THE GOVERNMENT ORDER DATED 16-10-2012. EXT.P3 : TRUE COPY OF THE GOVERNMENT ORDER DATED 30-05-2015. EXT.P4 : TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 30-06-2015. RESPONDENTS' EXHIBITS : - --------------------------------------- EXHIBIT R4(a) : TRUE COPY OF GO(Rt) No.3253/84/HD/ DATED 9.10.1984. EXHIBIT R5(a) : TRUE COPY OF THE COMMUNICATION BEARING No.KSPC/ Z-23/5685 DATED 06.08.2015 ISSUED BY THE CHAIRMAN OF THE KERALA STATE PRODUCTIVITY COUNCIL. EXHIBIT R5(b) : TRUE COPY OF THE ORDER BEARING GO(Rt) No.2957/H&FWD DATED 11.09.2015. // TRUE COPY // P.A. TO JUDGE DMR/- ## **C.R.** ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 21485 of 2015** ---------------------------------------Dated this the 04[th] day of January, 2016 ## JUDGMENT The petitioner, a member of the fourth respondent Society, has a grievance that the fifth respondent has been reappointed as the Managing Director of the Society in violation of the bye-laws of the Society, especially Clause 17(b) thereof. 2. Briefly stated, the fifth respondent was appointed through Exhibit P2 dated 16.10.2012 as the Managing Director of the fourth respondent Society. On 31.05.2015, the fifth respondent retired from service on his having attained the age of superannuation. Nevertheless, the second respondent issued Exhibit P3 proceedings reappointing the fifth respondent as the Managing Director of the fourth respondent Society for one more year: from 01.06.2015 to 31.05.2016. 3. The petitioner, being the member of the Society, has filed the present writ petition assailing Exhibit P3 order of the second respondent on the grounds that it was in violation of Clause 17(b) of the bye-laws of the Society. W.P.(c) No. 21485 of 2015 2 4. The learned counsel for the petitioner has strenuously contended that Clause 17(b) of the bye-laws is categoric in its tone and tenor that the Managing Director to be appointed shall be a Government Officer. According to him, on his attaining the age of superannuation and retiring from service, the fifth respondent has ceased to be a public servant. 5. The learned counsel for the fifth respondent, on the other hand, has assailed the writ petition on numerous grounds: (1) that the petitioner has an efficacious alternative remedy under Section 69 of the Kerala Co-operative Societies Act (the 'Act' for brevity); (2) that the petitioner has no _locus standi_ ; (3) that the writ petition is in the nature of a public interest litigation, which is impermissible in service disputes; (4) that the post being held by the fifth respondent does not answer the description of a public office; (5) and that the byelaws do not have the statutory force, and _ipso facto_ their alleged violation does not provide any cause of action to the aggrieved person to invoke the public law remedy—the writ jurisdiction of this Court under Article 226 of the Constitution of India. W.P.(c) No. 21485 of 2015 3 6. In support of his submissions, the learned counsel for the fifth respondent has placed reliance on the following judgments: **Bharath Sanchar Nigam Ltd., Tvm v. Assistant Commissioner (Assessment), Commercial Taxes, Tvm and Others**[1] , **University of Mysore v. Govinda Rao**[2] , **Alex Beets v. M.A. Urmese[3] , High Court of Gujarat and Another v. Gurajat Kishan Mazdoor Panchayat and Others[4] , Hari Bansh Lal v. Sahodar Prasad Mahto and Others**[5] , **The Co-operative Central Bank Ltd. and Others v. The Additional Industrial Tribunal, Andhra Pradesh and Others[6] , P.A. George v. Tatapuram Co-operative Society Ltd**[7] , **Anilkumar v. Kerala State Co-operative Consumer Federation Ltd.**[8] , **Association of Milma Officers v. State of Kerala**[9] , **Chirayinkeezhu Service Co-operative Bank Ltd. v. Santhosh**[10] . 7. Though the learned counsel for the fifth respondent has raised, as has already been observed, various contentions, 1 2014 (4) KHC 391 2 AIR 1965 SC 491 3 1970 KLT 639 4 (2003) 4 SCC 712 5 (2010) 9 SCC 655 6 1969 (2) SCC 43 7 1975 KLT 367 8 2015 (4) KLT SN 49 9 2015 (1) KLT 849 (L.B) 10 2015 (4) KLT 163 (L.B.) W.P.(c) No. 21485 of 2015 4 this Court has primarily been called upon to decide as a preliminary issue whether the writ petition is maintainable in the face of what is said to be an efficacious alternative remedy available to the petitioner under Section 69 of the Act. 8. In **Association of Milma officers** _(supra),_ a learned larger Bench of this Court has been seized of the issue whether a society is amenable to writ jurisdiction of this Court under Article 226 of the Constitution. In other words, whether a Society answers the description of State or an instrumentality of State in terms of Article 12 of the Constitution. 9. In the context mentioned above, their Lordships of the Larger Bench have held that a Writ Petition against a Co-operative Society is maintainable if the action of the Co-operative Society is violative of statutory provisions. The learned Larger Bench has, indeed, held that the Co-operative need not invariably answer the description of a State or its instrumentality. 10. On facts, the learned Larger of Bench of five-Judges has, however, held that the petitioners have alleged the violation of Staff Regulations, which are non-statutory in nature. In that context, the conclusion is that violation of any W.P.(c) No. 21485 of 2015 5 non-statutory provision could not be made the subject matter of writ proceedings. 11. Further, through a profusion of precedents, the latest being **Santhosh** _(supra),_ this Court has held that Section 69 of the Act provides an efficacious alternative remedy concerning all service disputes involving the employees of any Co-operative Society. 12. In my considered view, the dispute raised in the present writ petition squarely falls within the scope of Section 69 of the Act; the Co-operative Arbitration Court has the necessary powers to adjudicate all the service disputes—the dispute raised by the petitioner is, indeed, a service dispute. 13. To the credit of the learned counsel for the fifth respondent, I must say that he has raised various issues and backed up his submissions with a plethora of precedents. In this context, it is apposite to refer to **Tin Plate Co. of India Ltd. v. State of Bihar and Others,[11]** wherein the Hon’ble Supreme Court has held that if a writ petition under Article 226 is to be dismissed on the grounds of alternative remedy, the High Court is not required to express any opinion on merits 11 (2008) 8 SCC 272 W.P.(c) No. 21485 of 2015 6 of the case which is to be pursued before an alternative forum. 14. Having acknowledged the fact that the appellant's counsel, in his effort to get over the objection of existence of an alternative remedy, addressed the Court on merits of the case and thereby invited findings on merits too, their Lordships have, in the end, observed that in such a situation if the High Court is to dismiss the writ petition on the grounds of alternative remedy, it would be a sound exercise of jurisdiction to refrain itself from expressing any opinion on the merits of the case which ultimately is to be taken up by a person before an alternative forum. Further, **T.K. Lathika v. Seth Karsandas Jamnadas,[12]** the Apex Court has echoed the same opinion. In the facts and circumstances, without going into the merits of the matter, this Court, while answering the preliminary issue as regards the maintainability of the writ petition, hereby holds that the petitioner cannot maintain the writ petition in the face of the efficacious alternative remedy available to him under Section 69 of the Act. As a result, the writ petition is dismissed without prejudice to the rights of the 12 (2009) 6 SCC 632 W.P.(c) No. 21485 of 2015 7 petitioner to approach the appropriate legal forum, if advised, by invoking Section 69 of the Act. No order as to costs. **DAMA SESHADRI NAIDU JUDGE** DMR/-