M. Divya v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **TUESDAY,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940 WP(C).No. 36302 of 2018** ## **PETITIONER:** **M.DIVYA, AGED 33 YEARS, W/O. PRAMODKUMAR K.V., KARAKKULANGARA, VANNADIL HOUSE, NEAR S.S. TEMPLE, GRAMAM WEST, PAYYANNUR P.O., KANNUR DISTRICT-670 307.** **BY ADVS.SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ SMT.RIYA RAYMOL IYPE SRI.VARUN C.VIJAY** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATIVE SOCIETIES, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM, PIN-695001. 3 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KANNUR, PIN-670003. 4 PAYYANNUR CO-OPERATIVE TOWN BANK LIMITED(NO.C-827) REPRESENTED BY ITS GENERAL MANAGER, PAYYANNUR CO-OPERATIVE TOWN BANK LIMITED, HEAD OFFICE, PAYYANNUR P.O., KANNUR, PIN-670307. 5 CHIEF EXECUTIVE OFFICER, PAYYANNUR CO-OPERATIVE TOWN BANK LIMITED (NO.C-827), HEAD OFFICE, PAYYANNUR P.O., KANNUR, PIN-670307. 6 ARJUN K.M., S/O.K.M.VIJAYAN, ANNUR P.O., PAYYANNUR, KANNUR DISTRICT, PIN-670307.** **SRI.BIMAL K.NATH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 36302 of 2018** -2- ## **JUDGMENT** The petitioner, who has been working as Day Deposit Collector for Payyannur Co-operative Town Bank Limited, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that he is entitled to be appointed as Peon/Watchman under 25% quota ear-marked as per Ext.P1 Government order dated 15.07.2015 and Ext.P2 Government order dated 13.08.2018, with effect from 13.09.2018 and that the 6[th] respondent is not entitled to be appointed to the post of Peon/Watchman in violation of the quota rule. The petitioner has also sought for a writ of certiorari to quash Ext.P4 communication dated 03.10.2018 issued by the 4[th] respondent Bank, wherein it has been stated that, for the post of Peon/Watchman, applications were invited on 24.05.2017 by issuing notification and that the reservation as per Exts.P1 and P2 Government orders have no application for the post notified as per that notification. The further reliefs sought for are a writ of mandamus **WP(C).No. 36302 of 2018** -3- commanding respondents 4 and 5 to appoint the petitioner as Peon/Watchman with effect from 13.09.2018, under 25% quota ear-marked vide Exts.P1 and P2; and a writ of mandamus commanding respondents 1 to 3 to pass orders cancelling the appointment of the 6[th] respondent. 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 to 3. 3. The pleadings and materials on record would show that the petitioner, who has been working as Day Deposit Collector in the 4[th] respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, is claiming appointment as Peon/Watchman under 25% quota earmarked as per Exts.P1 and P2 Government orders, with effect from 13.09.2018. The petitioner would also contend that the appointment of the 6[th] respondent as Peon/Watchman is in violation of the quota prescribed as per Exts.P1 and P2 Government orders. In Ext.P4 **WP(C).No. 36302 of 2018** -4- communication issued by the 4[th] respondent Bank, it is stated that, for the post of Peon/Watchman, applications were invited on 24.05.2017 by issuing notification and that the reservation as per Exts.P1 and P2 Government orders have no application to the notified vacancies. 4. Section 69 of the Kerala Co-operative Societies Act, 1969 deals with disputes to be decided by Co-operative Arbitration Court and Registrar. As per clause (c) of subsection (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 nonmonetary disputes and to the Registrar, in the case of monetary disputes, and the Arbitration Court or the **WP(C).No. 36302 of 2018** -5- 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 sub-section (1) of Section 80 of the Act, including their promotion and inter se seniority, shall also be deemed to be disputes. 5. 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 **WP(C).No. 36302 of 2018** -6- 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. 6. 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 question or in defiance of the fundamental principles of judicial **WP(C).No. 36302 of 2018** -7- 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. 7. 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 **WP(C).No. 36302 of 2018** -8- 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 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. **WP(C).No. 36302 of 2018** -9- 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. 8. In **Titaghur Paper Mills' case (supra)** a ThreeJudge 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 **WP(C).No. 36302 of 2018** -10- ## 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 and has been followed by the Apex Court throughout. 9. In the instant case, the claim made by the petitioner for appointment as Peon/Watchman is a dispute which has to be raised for adjudication before the Co-operative Arbitration Court, in view of the provisions **WP(C).No. 36302 of 2018** -11- 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. 10. In such circumstances, the reliefs sought for in this writ petition cannot be entertained in the writ jurisdiction of this Court under Article 226 of the Constitution of India, in view of the statutory remedy **WP(C).No. 36302 of 2018** -12- available under Section 69 of the Act, by approaching the Co-operative Arbitration Court. 11. In the result, this writ petition is dismissed, however, without prejudice to the right of the petitioner to move the Co-operative Arbitration Court 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/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 36302 of 2018** -13- ## **APPENDIX** |**PETITIONER'S **|**EXHIBITS:**| |---|---| |**EXHIBIT P1**|**COPY OF THE G.O.(MS) NO.87/2015/**| ||**CO-OP.DATED 15/7/2015.**| |**EXHIBIT P2**|**COPY OF THE G.O.(MS) NO.31/2018/**| ||**CO-OP.DATED 13/8/2018**| |**EXHIBIT P3**|**COPY OF THE NOTIFICATION DATED**| ||**22/5/2017, WHICH APPEARED IN THE**| ||**MALAYALAM DAILY VEEKSHANAM DATED**| ||**24/5/2017**| |**EXHIBIT P4**|**A COPY OF THE LETTER DATED 3/10/2018**| ||**ISSUED BY THE CHAIRMAN OF THE BANK.**| **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY// P.A. TO JUDGE**