Liji Thankappan v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** ## **WP(C).No. 40784 of 2018** ## **PETITIONER:** **LIJI THANKAPPAN, AGED 44 YEARS D/O THANKAPPAN,OOREDTHU VEEDU,MEVELLOOR P.O. VAIKOM TALUK,KOTTAYAM DISTRICT.** **BY ADVS. SRI.S.VIDYASAGAR SHRI.MOHANAN K. SMT.C.K.LEKHAMMA** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN 695 001. 2 THE REGISTRAR, OFFICE OF THE REGISTRAR,CO-OPERATIVE SOCIETIES, JAWAHAR SAHAHARANA BHAVAN,OPPOSITE DPI JUNCTION, THYCARD P.O. PIN 695 001. 3 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE JOINT REGISTRAR,KOTTAYAM PIN 686 001.** **W.P.(C)No.40784 of 2018** ## **:-2-:** - **4 ASSISTANT REGISTRAR (GENERAL)OF CO-OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR, VAIKOM TALUK,KOTTAYAM DISTRICT PIN 686 001.** - **5 VELLOOR SERVICE CO-OPERATIVE BANK LTD NO 785, VELLOOR, MEVELLOOR P.O.686 609,VAIKOM TALUK, KOTTAYAM,REPRESENTED BY ITS SECRETARY 686 6001.** - **6 PRESIDENT,** - **VELLOOR SERVICE CO-OPERATIVE BANK LTD.NO 785, REPRESENTED BY BOARD OF DIRECTORS,(MANAGING COMMITTEE),VELLOOR,MEVELLOOR P.O.,686 609, VAIKOM TALUK, KOTTAYAM PIN 686 001.** - **7 CONVENER,** **DISCIPLINARY SUB COMMITTEE,VELLOOR SERVICE COOPERATIVE BANK LTD.NO 785,VELLOOR, MEVELLOR P.O.686 609,VAIKOM TALUK, KOTTAYAM 686 001.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.V.VARGHESE SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.40784 of 2018** ## **:-3-:** ## **J U D G M E N T** |The petitioner, who is a Junior Clerk in the 5<br>th| |---| |respondent Bank, which is a Society registered| |under the Kerala Co-operative Societies Act, 1969| |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.P1| |memo of charges issued by the 6<br>th<br>respondent, the| |President of the 5<br>th<br>respondent Society, and Ext.P2| |final report filed by the Co-operative Inspector in| |the office of the 4<br>th<br>respondent Assistant| |Registrar. The further relief sought for is a writ| |of mandamus commanding respondents 5 and 6 to| |revoke Ext.P3 order of suspension dated 8.5.2018| |and <br>Ext.P5 order extending the period of| |suspension, and reinstate the petitioner in service| |forthwith; declare that Ext.P3 order of suspension| |issued by the 5<br>th<br>respondent is per se illegal and| ## **W.P.(C)No.40784 of 2018** **:-4-:** unconstitutional and direct payment of monthly salary due to the petitioner from 1.2.2018 to 8.5.2018 for the period prior to the date of suspension; a writ of mandamus commanding respondents 1 to 5 to pay the substance allowance from 8.5.2018 onwards till she is reinstated to the post of Junior Clerk in 5th respondent Bank. 2. On 14.12.2018 when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 4. This Court issued urgent notice on admission by speed post to respondents 5 to 7, returnable within three weeks. While ordering notice on admission, this Court has made it clear that the question of maintainability of the writ petition, in view of statutory remedy available under Section 69 of the Kerala Co-operative Societies Act, 1969 will be decided with notice to the party ## **W.P.(C)No.40784 of 2018** ## **:-5-:** respondents. 3. A counter affidavit has been filed by respondents 5 to 7 opposing the reliefs sought for in this writ petition. In the counter affidavit, the said respondents have raised the question of maintainability of this writ petition, in view of the provisions under Section 69 of the Act. The petitioner has also filed a reply affidavit. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel for respondents 5 to 7. 5. The issue that arises for consideration in this writ petition is as to whether the petitioner, who is an employee of the 5th respondent Society, which is a Society registered under the Kerala Cooperative Societies Act, can approach this Court under Article 226 of the Constitution of India, ## **W.P.(C)No.40784 of 2018** **:-6-:** challenging the disciplinary proceedings initiated against her under the relevant provisions of the Act, without availing the statutory remedy under Section 69 of the Act, before the Co-operative Arbitration Court. 6. As per sub-rule (6) of Rule 198 of the Kerala Co-operative Societies Rules, 1969 (for brevity, 'the Rules), an authority competent to appoint an employee may suspend him pending inquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (Act 27 of 1973). ## **W.P.(C)No.40784 of 2018** **:-7-:** As per the proviso to sub-rule (6), an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act, 1972 (Act 27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules. 7. 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 ## **W.P.(C)No.40784 of 2018** **:-8-:** 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 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 subsection (1) of Section 80 of the Act, including their promotion and inter se seniority, shall also be deemed to be disputes. 8. 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 ## **W.P.(C)No.40784 of 2018** **:-9-:** 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. 9. In **Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary ## **W.P.(C)No.40784 of 2018** **:-10-:** 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 **W.P.(C)No.40784 of 2018** **:-11-:** **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. 10. 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 Article. But the exercise ## **W.P.(C)No.40784 of 2018** **:-12-:** 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 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, ## **W.P.(C)No.40784 of 2018** **:-13-:** 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. 11. 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 ## **W.P.(C)No.40784 of 2018** **==> picture [41 x 8] intentionally omitted <==** 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 ## **W.P.(C)No.40784 of 2018** **:-15-:** 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. 12. In the instant case, the challenge made by the petitioner against Ext.P1 memo of charges, Ext.P3 order of suspension dated 08.05.2018 and Ext.P5 order extending the period of suspension, and also the relief of reinstatement in service by revoking the order of suspension, 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) of Section 69 of the Act, read with clause (d) of sub- ## **W.P.(C)No.40784 of 2018** **:-16-:** section (2) of Section 69. 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 subsection (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. 13. When statutory forums are created under Sections 69 and 82 of the Act for resolution of any disputes arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) Section 80 of the Act, including promotion and inter se seniority, without availing the same, the petitioner cannot invoke the writ jurisdiction of ## **W.P.(C)No.40784 of 2018** **:-17-:** this Court under Article 226 of the Constitution of India challenging Exts.P1, P3 and P5 orders and seeking reinstatement in service by revoking the order of suspension. 14. Ext.P2 report, which is under challenge in this writ petition is one submitted by the Unit Inspector, Mevelloor Unit, in the office of the 4th respondent Assistant Registrar. The Inquiry Officer who submitted Ext.P2 report, after conducting an inquiry under Section 65 of the Kerala Co-operative Societies Act, is not a party to this writ petition. Moreover, the question as to whether the finding in Ext.P2 report are factually correct or not cannot be adjudicated in a writ petition filed under Article 226 of the Constitution of India. In such circumstances, the challenge made in this writ petition against Ext.P2 inquiry report cannot also be entertained under Article 226. ## **W.P.(C)No.40784 of 2018** **:-18-:** 15. In the result, this writ petition filed on 11.12.2018 is dismissed, without prejudice to the right of the petitioner to avail the statutory remedy under Section 69 of the Kerala Co-operative Societies Act against Exts.P1, P3 and P5 orders, seeking appropriate reliefs. All legal and factual contentions raised by the petitioner are left open to be raised before the Co-operative Arbitration Court, at appropriate stage. Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/ ## **W.P.(C)No.40784 of 2018** ## **:-19-:** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE MEMO OF CHARGES, SERVED ON THE PETITIONER ON 17.9.2018 FOR 90 DAYS AFTER PUTTING THE PETITIONER UNDER ILLEGAL SUSPENSION ON 8.5.2018** **EXHIBIT P2** - **THE TRUE COPY OF THE FINAL REPORT DATED 15.3.2018 SUBMITTED BY THE CO-OPERATIVE INSPECTOR OF THE 4TH RESPONDENT OFFICE VAIKOM** - **EXHIBIT P3 THE TRUE COPY OF THE ILLEGAL SUSPENSION ORDER SERVED ON THE PETITIONER ON 8.5.2018 ISSUED BY THE 6TH RESPONDENT PRESIDENT** **EXHIBIT P4 THE TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE EXT.P1 MEMO OF CHARGES.** - **EXHIBIT P5 THE TRUE COPY OF THE EXTENSION OF THE ILLEGAL SUSPENSION ORDER ISSUED BY THE 6TH RESPONDENT PRESIDENT FOR THE MANAGING COMMITTEE.** - **EXHIBIT P6 THE TRUE COPY OF THE AFFIDAVIT FILED BY MEMBER MADHAVI** - **EXHIBIT P7 THE TRUE COPY OF THE AFFIDAVIT FILED BY MEMBER SUNNY JOSEPH** - **EXHIBIT P8 THE TRUE COPY OF THE AFFIDAVIT FILED BY MEMBER SREEPATHI** - **EXHIBIT P9** **THE TRUE COPY OF THE VEHICLE LOAN DEMAND NOTICE ISSUED BY THE 5TH RESPONDENT BANK** ## **W.P.(C)No.40784 of 2018** ## **:-20-:** **EXHIBIT P10** **THE TRUE COPY OF THE BYLAW WITH AMENDED BY LAW SHOWING THAT THE PECUNIARY LIMITS OF LOAN TRANSACTION FOR A MEMBER IS RS 20 LAKHS.** **EXHIBIT P11** - **TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE THEN PRESIDENT OF THE 5TH RESPONDENT BANK DATED 29.1.2009** **EXHIBIT P12** - **TRUE COPY OF THE COMPLAINT DATED 19.12.2018 BY THE ADMINISTRATIVE COMMITTEE BEFORE THE DY.S.P. OF POLICE, VAIKOM.** - **EXHIBIT P13 TRUE COPY OF NO EMPLOYMENT CERTIFICATE ISSUED BY THE GAZETTE OFFICER WHICH WAS PRODUCED ALONG WITH A PROPER APPLICATION BEFORE THE SECRETARY IN CHARGE** - **EXHIBIT P14 TRUE COPY OF THE FIR REGISTERED ON THE BASIS OF EXHIBIT P-12 COMPLAINT BY THE ADMINISTRATIVE AUTHORITY OF THE BANK** - **EXHIBIT R5(a) TRUE COPY OF THE ORDER NO.CRP(2)/6797/18 DATED 15.11.2018 OF THE 3RD RESPONDENT** - **EXHIBIT R5(b) TRUE COPY OF THE ORDER NO.CRP(2)/8183/16 DATED 4.3.2017 OF THE 3RD RESPONDENT** - **EXHIBIT R5(c)** - **TRUE COPY OF THE ORDER NO.CRP(2)/8183/16 DATED 27.1.2018 OF THE 3RD RESPONDENT**