Lineesh C.S. Attender (Under Suspension) v. Joint Registrar of Co-operative Societies (General), Wayand; Sulthan Bathery Taluk Primary Co-operative Agricultural and Rural Development Bank Ltd, No. W.299, Sulthan Bathery, Wayanad; The Part Time Administrator

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940 WP(C).No. 14195 of 2018** ## **PETITIONER/S:** **LINEESH C.S. ATTENDER(UNDER SUSPENSION),SULTHAN BATHERY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO.W.299, SULTHAN BATHEERY, WAYANAD.** **BY ADVS. SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI** ## **RESPONDENT/S:** **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),WAYANAD, PIN 673 561. 2 SULTHAN BATHERY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO. W.299, SULTHAN BATHERY, WAYANAD PIN 673 562.REPRESENTED BY ITS PARTTIME ADMINISTRATOR.** **3 THE PART TIME ADMINISTRATOR SULTHAN BATHERY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO. W.299,SULTHAN BATHERY, WAYANAD PIN 673 562.** ## **BY ADV. SRI.P.U.SHAILAJAN** ## **OTHER PRESENT:** **SRI. BIMAL K.NATH, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 14195 of 2018** **2** ## **JUDGMENT** The petitioner, who was working as Attender in the 2[nd] respondent Bank, which is a Co- operative Society registered under the provisions of the Kerala Co-operative Societies Act, 1969, has filed this writ petition seeking a writ of certiorari to quash Ext.P1 order dated 12.04.2018 of the 3[rd] respondent Part-time Administrator and seeking a writ of mandamus commanding respondents 2 and 3 to allow him to continue as Attender in the 2[nd] respondent Bank. 2. On 24.04.2018, when this writ petition came up for admission, this Court admitted the matter on file and issued urgent notice by special messenger to the respondents. 3. A counter affidavit has been filed by respondents 2 and 3 opposing the reliefs sought for in this writ petition. In the counter affidavit, a contention as to the maintainability of this writ petition, in view of the statutory **WP(C).No. 14195 of 2018** **3** provisions under Section 69 of the Kerala Co- operative Societies Act, has also been raised. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1[st] respondent and also the learned counsel appearing for respondents 2 and 3. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P1 order of suspension issued by the 3[rd] respondent, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 6. Rule 198 of the Kerala Co-operative Societies Rules, 1969, deals with disciplinary action against any member of the establishment of a Co-operative Society. Sub-rule (6) of Rule 198 provides that an authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No **WP(C).No. 14195 of 2018** **4** employee shall however be kept under suspension for a period exceeding six months at a time and in no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. As per sub-rule (6) of Rule 198, an employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972. In view of the statutory provisions under sub-rule (6) of Rule 198 of the Rules, it cannot be contended that Ext.P6 order, whereby the petitioner was placed under suspension pending enquiry, is one issued absolutely without any authority of law. 7. Clause (i) of Section 2 of the Kerala Cooperative Societies Act define 'dispute' to mean any matter touching the business, constitution, establishments or management of a Society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a **WP(C).No. 14195 of 2018** **5** Society, whether such claim be admitted or not. Section 69 of the Act deals with disputes to be decided by Co-operative Arbitration Court and Registrar. Clause (d) of sub-section (2) of Section 69 of the Act makes it explicitly clear that, any dispute arising in connection with employment of officers and servants of the different classes of societies specified in subsection (1) of Section 80, including their promotions and _inter se_ seniority shall also be deemed to be a dispute, for the purpose of subsection (1) of Section 69. 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 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. **WP(C).No. 14195 of 2018** **6** 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 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 **WP(C).No. 14195 of 2018** **7** 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 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. **WP(C).No. 14195 of 2018** **8** 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 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 statute. Ordinarily, the court will **WP(C).No. 14195 of 2018** **9** 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 **WP(C).No. 14195 of 2018** **10** 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 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, **WP(C).No. 14195 of 2018** **==> picture [16 x 8] intentionally omitted <==** 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 and has been followed by the Apex Court throughout. 12. 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 **WP(C).No. 14195 of 2018** **12** petition 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 Co-operative 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 Co-operative **WP(C).No. 14195 of 2018** **13** Society, which is State or authority within the meaning of Article 12 of the Constitution. ## 13. 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), 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 **WP(C).No. 14195 of 2018** **14** 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. ## 14. In **Thrissur Taluk Co-Operative College v.** **Joint Registrar of Co-operative Societies** **(2012(1) KLT 503)** , this Court held that Section 69 of the Act provides for resolution of disputes as defined under clause (i) of Section 2 of the Act by the Co-operative Arbitration Court whether it being a dispute between a member and the Society or an employee and the Society. Clause (b) of sub-section (1) of Section 69 applies if it is a dispute between a member and the Society and clause (b) of sub-section (2) of Section 69 applies if it is a dispute arising in connection with the employment. 15. Having considered the submissions made by the learned counsel on both sides and in the **WP(C).No. 14195 of 2018** ## **15** light of the law laid down in the decisions referred to supra, this Court finds absolutely no grounds to interfere with Ext.P1 order of suspension issued by the 3[rd] respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. If the petitioner is aggrieved by Ext.P1 order of suspension, it is for him to invoke the statutory remedy available under Section 69 of the Kerala Co-operative Societies Act. Without prejudice to the aforesaid right of the petitioner, this writ petition is dismissed, leaving open all legal and factual contentions. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO. ESTIADM 1819 DATED 12-4-2018 OF THE 3RD RESPONDENT.** **RESPONDENTS' EXHIBITS :** **WP(C).No. 14195 of 2018** **16** **EXHIBIT R2(A)** **TRUE COPY OF THE COMPLAINT DATED 18.4.2018 FILED BY THE BANK BEFORE THE INSPECTOR OF POLICE, SULTHAN BATHERY POLICE STATION.** **EXHIBIT R2(B) TRUE COPY OF THE CHARGE SHEET DATED 9.5.2018 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT** **AV/6/10**