Navanith Kumar N. v. Kozhikode District Co-operative Bank Ltd., The Administrator, and The Joint Registrar of Co-Operative Societies

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940 WP(C).No. 25614 of 2018** ## **PETITIONER:** **NAVANITH KUMAR N.** **SENIOR MANAGER,KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD.NO.F.1635, P.B.NO.503, P.O.CHALAPPURAM, KALLAI ROAD, KOZHIKODE-673 002.** **BY ADVS. SRI.P.N.MOHANAN SRI.C.P.SABARI** ## **RESPONDENTS:** |**1**|**KOZHIKODE DISTRICT CO-OPERATIVE BANK**| |---|---| ||**REPRESENTED BY GENERAL MANAGER,P.B.NO.503,**| ||**P.O.CHALAPPURAM, KALLAI ROAD,KOZHIKODE-673 002.**| |**2**|**THE ADMINISTRATOR**| ||**KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD.NO.F.1635,**| ||**P.B.NO.503, P.O.CHALAPPURAM,KALLAI ROAD,**| ||**KOZHIKODE-673 002.**| |**3**|**THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES**| ||**(GENERAL), KOZHIKODE-673 001.**| ||**SRI.P.C.SASIDHARAN, STANDING COUNSEL**| ||**SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.25614 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is working as Senior Manager in Kozhikode District Co-operative Bank which is a District Co-operative Bank as defined under clause(ia) of Section 2 of the Kerala Cooperative Societies Act, 1969, as amended by the Amendment Act of 2017, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Administrator to promote him as Deputy General Manager in time scale from the date on which he was given charge of the said post by Ext.P1 order dated 30.5.2018 of the 1[st] respondent Bank. The petitioner has also sought for a declaration that he is entitled to get promotion provisionally to the post of Deputy General Manager in the vacancy available in the 1[st] respondent Bank when he was given charge by Ext.P1 order; a ## **W.P.(C)No.25614 of 2018** ## **:-3-:** declaration that he is entitled to get salary of Deputy General Manager from 2.6.2018 when he was given charge of Deputy General manager by Ext.P1 order in the light of principles of equal pay for equal work. 2. On 31.7.2018 when this writ petition came up for admission, the learned Government Pleader and the learned Standing Counsel for the District Co-operative Bank sought time to get instructions. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the District Co-operative Bank appearing for respondents 1 and 2 and also the learned Senior Government Pleader appearing for the 3[rd] respondent Joint Registrar. 4. The sole issue that arises for consideration in this writ petition is as to whether the petitioner is entitled to approach this ## **W.P.(C)No.25614 of 2018** ## **:-4-:** Court under Article 226 of the Constitution of India, seeking provisional promotion to the post of Deputy General Manager in the 1[st] respondent District Co-operative Bank, with effect from the date of Ext.P1 order dated 30.5.2018, whereby he has been given charge of the said post on charge allowance. 5. The 1[st] respondent Bank is a District Co- operative Bank, as defined under clause (ia) of Section 2 of the Kerala Co-operative Societies Act, cannot come within the ambit of “the State” under Article 12 of the Constitution of India. 6. 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 under Article 226 of the Constitution of India is maintainable against Co-operative ## **W.P.(C)No.25614 of 2018** ## **:-5-:** 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 Society, which is State or authority within the ## **W.P.(C)No.25614 of 2018** ## **:-6-:** meaning of Article 12 of the Constitution. 7. 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 ## **W.P.(C)No.25614 of 2018** ## **:-7-:** 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. ## 8. In **Shaiju K. and others v. Alappuzha** **District Co-operative Bank and others** (judgment dated 4.9.2018 in W.P.(C)No.18684/2018 and connected cases), this Court held that the Service Regulations of the respective District Co-operative Banks, even when such Regulations have been framed by adopting the Service Regulations of District/Central Co-operative Banks of Kerala formulated vide G.O.(Ms.)No.79/86 Co-op. Dated 3.9.1986, cannot be treated as a Regulation having statutory character, which can be enforced through a writ petition, especially when the District Cooperative Banks cannot be characterised as a ## **W.P.(C)No.25614 of 2018** ## **:-8-:** 'State' falling under Article 12 of the Constitution of India. In that view of the matter, the employees of the District Co-operative Bank cannot seek a writ of mandamus commanding the respective Banks and its Administrators to provisionally promote them to the post of Branch Managers/Deputy General Managers with a rider that they will be reverted back as and when candidates advised by Public Service Commission join duty. 9. 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 ## **W.P.(C)No.25614 of 2018** ## **:-9-:** 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 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 sub- section (1) of Section 80 of the Act, including their promotion and inter se seniority, shall also be deemed to be disputes. ## **W.P.(C)No.25614 of 2018** **:-10-:** 10. 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 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. ## **W.P.(C)No.25614 of 2018** ## **:-11-:** 11. 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 procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of ## **W.P.(C)No.25614 of 2018** ## **:-12-:** 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. 12. 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 ## **W.P.(C)No.25614 of 2018** ## **:-13-:** 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 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 ## **W.P.(C)No.25614 of 2018** ## **:-14-:** 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. 13. 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 ## **W.P.(C)No.25614 of 2018** ## **:-15-:** 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, 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 ## **W.P.(C)No.25614 of 2018** ## **:-16-:** 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. 14. In the instant case, the claim made by the petitioner for provisional promotion to the post of Deputy General Manager is a dispute which has 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 ## **W.P.(C)No.25614 of 2018** ## **:-17-:** 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 subsection (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 Cooperative Banks in connection with their employment, including promotion and inter se seniority. 15. Having considered the submissions made by the learned counsel for the petitioner, the learned ## **W.P.(C)No.25614 of 2018** ## **:-18-:** Government Pleader and also the learned Standing Counsel for the 1[st] respondent Bank, this Court finds that if the petitioner is having any grievance regarding denial of provisional promotion or other consequential reliefs, it is for him to invoke the statutory remedy available under Section 69 of the Act instead of approaching this Court under Article 226 of the Constitution of India. 16. Placing reliance on Exts.P7, P8, P9 and P10 orders dated 26.10.2015, 9.9.2016, 31.10.2016 and 16.12.2017 respectively, the learned counsel for the petitioner would submit that the 1[st] respondent Bank has already granted provisional promotion to certain persons and as such the very same benefit has been extended in the case of petitioner also. The petitioner has to approach this Court in this writ petition when his claim for provisional promotion as Deputy General Manager in time scale ## **W.P.(C)No.25614 of 2018** ## **:-19-:** basis was not acceded to by the 1[st] respondent Bank. The denial of provisional promotion in time scale basis is a dispute, which has to be raised before the appropriate authority, by invoking the statutory remedy available under Section 69 of the Act. In such circumstances, this writ petition fails and the same is accordingly dismissed, however without prejudice to the right of the petitioner to invoke the statutory remedy available under Section 69 of the Act. Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/26.9.18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 30.05.2018 OF THE GENERAL MANAGER.** **EXHIBIT P2 A TRUE COPY OF THE RELEVANT PORTION OF THE SENIORITY LIST AS ON 02.12.2017.** **EXHIBIT P3 A TRUE COPY OF THE POSTS SANCTION ORDER DATED 21.05.2016.** ## **W.P.(C)No.25614 of 2018** ## **:-20-:** **EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 02.04.2015 OF THE FIRST RESPONDENT BANK. EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION DATED 10.08.2017 RECEIVED FROM THE PSC. EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 20.10.2017 OF THE PSC. EXHIBIT P7 A TRUE COPY OF THE PROMOTION ORDER DATED 26.10.2015 IN RESPECT OF SRI.CHANDRAN.P. EXHIBIT P8 A TRUE COPY OF THE PROMOTION ORDER DATED 09.09.2016 IN RESPECT OF SRI.RAJAN.K.P. EXHIBIT P9 A TRUE COPY OF THE PROMOTION ORDER DATED 31.10.2016 IN RESPECT OF SARASAN B.P. EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 16.12.2017 OF THE SECOND RESPONDENT. EXHIBIT P11 A TRUE COPY OF THE JUDGMENT DATED 07.04.2003 IN W.A.NO.111/2003. EXHIBIT P12 A TRUE COPY OF THE INTERIM ORDER DATED 21.12.2016 IN W.P[C]NO.37781/2016. EXHIBIT P13 A TRUE COPY OF THE JUDGMENT IN W.P[C]NO.29742/2017 DATED 27.09.2017. //TRUE COPY// P.A.TO JUDGE ami/**