Navas A.J. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** ## **WP(C).No. 29694 of 2018** ## **PETITIONER:** **NAVAS A.J., AGED 43 YEARS, S/O LATE ABDUL JABBAR, ACCOUNTANT (BRANCH MANAGER IN- CHARGE) (UNDER SUSPENSION), MAYYANAD SERVICE CO-OPERATIVE BANK LIMITED NO.2294, JANMAMKULAM BRANCH, KOOTTIKKADA P.O., KOLLAM, RESIDING AT THOPPIL VEEDU, AKKOLIL CHERRY, KOOTTIKKADA P.O., KOLLAM - 691 020** **BY ADVS.SRI.B.MOHANLAL SMT.P.S.PREETHA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695001. 2 THE REGISTRAR OF CO-OPERATIVE SOCIETEIES, GOVERNMENT OF KERALA, STATUE, THIRUVANANTHAPURAM- 1. 3 THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, COLLECTORATE, CUTCHERY P.O., KOLLAM- 691013.** **WP(C).No. 29694 of 2018** -2- - **4 THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, COLLECTORATE, CUTCHERY P.O., KOLLAM- 691013.** - **5 THE MAYYANAD SERVICE CO-OPERATIVE BANK LIMITED NO.2294, KOOTTIKKADA P.O., KOLLAM, REPRESENTED BY ITS SECRETARY, PIN- 691 020.** - **6 THE BOARD OF DIRECTOS OF MAYYANAD SERVICE CO-OPERATIVE BANK LIMITED NO.2294, JANMAMKULAM BRANCH, KOOTTIKKADA P.O., KOLLAM REPRESENTED BY ITS PRESIDENT, PIN- 691020.** - **7 MADHU, CO-OPERATIVE INSPECTOR, MAYYANAD UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, COLLECTORATE, CUTCHERY P.O., KOLLAM- 691013.** **8 THE PRESIDING OFFICER, INTERNAL AUDITOR, MAYYANAD SERVICE CO-OPERATIVE BANK LIMITED NO.2294, KOOTTIKKADA P.O., KOLLAM, PIN- 691020.** ## **R1-R4 SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 29694 of 2018** -3- ## **"C.R."** ## **JUDGMENT** The petitioner, who is an accountant in the 5[th] respondent Service Co-operative Bank, is placed under suspension, while holding charge as Branch Manager, Janmamkulam Branch, by Ext.P1 order dated 07.02.2018 issued by the President of the said Bank. Thereafter, he was issued with Ext.P3 charge memo, along with Ext.P4 statement of allegations. On receipt of Exts.P3 and P4, the petitioner submitted Ext.P5 explanation. Now the grievance of the petitioner is that by Ext.P7 order dated 07.08.2018 issued by the President of the Bank, the period of suspension stands extended, on the ground that the disciplinary proceedings initiated against him could not be completed within six months from the date of suspension. Feeling aggrieved by Ext.P7, the petitioner moved Exts.P8 and P9 representations before respondents 2 and 3. The petitioner is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of **WP(C).No. 29694 of 2018** -4- certiorari to quash Ext.P7 order issued by the President of the Bank, whereby the period of suspension stands extended. The petitioner has also sought for other consequential reliefs, including a writ of mandamus commanding the respondents to revoke Ext.P7 order and reinstate him in service with effect from 07.08.2018. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1 to 4. 3. The petitioner, who is an employee of the 5[th] respondent Bank, which is a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 (for brevity, 'the Act') is before this Court, invoking the writ jurisdiction under Article 226 of the Constitution of India, challenging Ext.P7 order, whereby the period of his suspension stands extended beyond six months. The petitioner seeks reinstatement in service, with effect from 07.08.2018, by revoking the order of suspension. 4. As per sub-rule (6) of Rule 198 of the **WP(C).No. 29694 of 2018** -5- Kerala Co-operative Societies Rules, 1969 (for brevity, 'the Rules), an authority competent to appoint an employee may suspend him pending enquiry 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). 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. 5. 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 **WP(C).No. 29694 of 2018** -6- 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 Cooperative 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 **WP(C).No. 29694 of 2018** -7- their promotion and inter se seniority, shall also be deemed to be disputes. 6. 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. 7. In **Authorised Officer, State Bank of** **WP(C).No. 29694 of 2018** -8- **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 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 **WP(C).No. 29694 of 2018** -9- 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. 8. 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 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 **WP(C).No. 29694 of 2018** -10- 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. 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 **WP(C).No. 29694 of 2018** -11- under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 9. 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, viz., where a liability not existing at common law is created by a statute which at the same **WP(C).No. 29694 of 2018** -12- 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. 10. In the instant case, the challenge made by the petitioner against Ext.P7 order dated 07.08.2018 issued by the President of the 5[th] respondent Bank and also 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 ## **WP(C).No. 29694 of 2018** -13- clause (c) of sub-section (1) of Section 69 of the Act, read with clause (d) of sub-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. 11. When statutory forums are created under Sections 69 and 70 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 this court under Article 226 of the Constitution of India challenging Ext.P7 order, whereby the period of his suspension stands extended beyond six months, and seeking **WP(C).No. 29694 of 2018** -14- reinstatement in service by revoking the order of suspension. 12. In the result, this writ petition filed on 07.09.2018 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 Ext.P7 order and seeking other consequential 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** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COP OF THE ORDER NO.36/18 DATED 07.02.2018 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P2 THE TRUE COPY OF THE ORDER NO.M/137/18 DATED 14.02.2018 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P3 THE TRUE COPY OF THE MEMO NO.327/2018 DATED 14.02.2018 ISSUED BY THE 4TH RESPONDENT.** **WP(C).No. 29694 of 2018** -15- - **EXHIBIT P4** **THE TRUE COPY OF THE MEMO OF CHARGES NO.327/2018 DATED 13.03.2018 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P5** - **THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER AGAINST EXT.P4 AND P5 BEFORE THE 6TH RESPONDENT.** **EXHIBIT P6** - **THE TRUE COPIES OF THE DOCUMENTS EXT.P1 TO P8 SUBMITTED BY THE 8TH RESPONDENT BEFORE THE ENQUIRY OFFICER.** **EXHIBIT P7** - **THE TRUE COPY OF THE ORDER ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER EXTENDING THE PERIOD OF SUSPENSION FROM 07.08.2018.** - **EXHIBIT P8 THE TRUE COPY OF THE REPRESENTATION DATED 09.08.2018 FILED BY PETITIONER BEFORE THE RESPONDENTS.** - **EXHIBIT P9 THE TRUE COPY OF THE APPLICATION DATED 12.09.2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT AND ITS POSTAL RECEIPT.** **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** ## **bpr**