P.M. Mohandas and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940** **WP(C).No. 23889 of 2018** ## **PETITIONERS:** |**1**|**P.M.MOHANDAS**| |---|---| ||**AGED 53, S/O.MADHAVAN,**| ||**ASSISTANT SECRETARY,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**2**|**P.U.THOMAS,**| ||**AGED 58, S/O.ULHANNAN,**| ||**INTERNAL AUDITOR,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**3**|**SHEENA K.D.,**| ||**AGED 36, D/O.DAMODARAN,**| ||**SENIOR CLERK,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**4**|**NISHA K.P.,**| ||**AGED 35, D/O.PRABHAKARAN,**| ||**JUNIOR CLERK,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**5**|**R.SUGHESH,**| ||**AGED 46, S/O.DAMODARAN,**| ||**HEAD CLERK,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| **WP(C).No. 23889 of 2018** -2- |**6**|**DOLLYAMMA K.M.,**| |---|---| ||**D/O.MATHEW,**| ||**CHIEF ACCOUNTANT,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**7**|**T.C.LISSYMOLE,**| ||**D/O.CHANDY,**| ||**BRANCH MANAGER,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**8**|**K.K.KRISHNANKUTTY,**| ||**S/O.KUMARAN,**| ||**HEAD CLERK,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**9**|**SALY M.J.,**| ||**AGED 43, D/O.JOSEPH,**| ||**JUNIOR CLERK,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**10**|**PRINCE K.A.,**| ||**D/O.AUGUSTINE,**| ||**ATTENDER,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**11**|**SHISIL SEBASTIAN,**| ||**AGED 36, D/O.SEBASTIAN T.J.,**| ||**JUNIOR CLERK,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**12**|**SEEMA POULOSE,**| ||**AGED 39, D/O.POULOSE,**| ||**SALESMAN,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| **WP(C).No. 23889 of 2018** -3- |**13**|**ELDOSE K.Y.,**| |---|---| ||**AGED 35, S/O.YOHANNAN,**| ||**SALESMAN,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**14**|**SUKUPRASAD K.T.,**| ||**AGED 33, S/O.THANKAPPAN,**| ||**SENIOR CLERK,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**15**|**SIBIN P.M.,**| ||**AGED 32, S/O.MATHEW,**| ||**JUNIOR CLERK,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**16**|**PRAMEELA V.T.,**| ||**AGED 44, D/O.THANKAPPAN,**| ||**SWEEPER,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**17**|**SWAPNA V.B.,**| ||**AGED 36, D/O.BABU,**| ||**PHARMACIST,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| |**18**|**SOUMYA S.,**| ||**AGED 30, D/O.SASIDHARAN,**| ||**PHARMACIST,**| ||**PULPALLY SERVICE CO-OPERATIVE SOCIETY,**| ||**PULPPALLY P.O.,**| ||**WAYANAD - 673 579.**| **BY ADVS.SRI.S.RENJITH SRI.K.R.PRATHISH** **WP(C).No. 23889 of 2018** -4- ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695 001.** - **3 ASSISTANT REGISTRAR (GENERAL), OFFICE OF THE CO-OPERATIVE ASSISTANT REGISTRAR, SULTHANBATHERY, WAYANAD.** - **4 THE PULPALLY SERVICE CO-OPERATIVE BANK LTD.NO.10153 PULPPALLY P.O., WAYANAD - 673 579 REPRESENTED BY ITS SECRETARY.** - **5 THE BOARD OF DIRECTORS, PULPALLY SERVICE CO-OPERATIVE BANK, WAYANAD - 673 579 REPRESENTED BY ITS PRESIDENT.** **BY ADVS.SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN** **R1-R3 SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 23889 of 2018** -5- ## **JUDGMENT** The petitioners, who are employees of the 4[th] respondent Service Co-operative Bank, which is a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 decision taken by the 5[th] respondent Society on 23.06.2018 as the same is illegal and in violation of sub-section (6) of Section 80 of the Act. The petitioner has also sought for an order directing respondents 4 and 5 to reimburse the dearness allowance to the petitioners, which were deducted by Ext.P3. 2. On 17.07.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 3. This Court issued urgent notice on admission by special messenger to respondents 4 and 5. 3. A counter affidavit has been filed by the **WP(C).No. 23889 of 2018** -6- 4[th] respondent, opposing the reliefs sought for in this writ petition. The petitioners have also filed a reply affidavit reiterating the contentions raised in this writ petition. 4. The 3[rd] respondent has also filed a counter affidavit, opposing the reliefs sought for in this writ petition. 5. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for respondents 1 to 3. 6. The reliefs sought for in this writ petition is a writ of certiorari to quash Ext.P3 decision taken by the 5[th] respondent Service Co- operative Bank. The learned counsel for the petitioners would contend that Ext.P3 decision of the 5[th] respondent Co-operative Bank is contrary to sub-section (6) of Section 80 of the Act and as such, an interference is warranted under Article 226 of the Constitution of India. 7. Per contra, the learned counsel for respondents 4 and 5, based on the contentions **WP(C).No. 23889 of 2018** -7- raised in the counter affidavit, would point out that the challenge made in this writ petition against Ext.P3 decision squarely falls within the ambit of Section 69 of the Kerala Co-operative Societies Act. Any challenge made against Ext.P1 circular No.73/13 dated 21.11.2013 of the 2[nd] respondent Registrar of Co-operative Societies, Ext.P2 communication dated 24.05.2018 of the 3[rd] respondent Assistant Registrar and Ext.R4(g) communication dtaed 25.04.2018 can be entertained in an appeal filed before the competent authority under Section 83(1)(j) of the Act. 8. 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 **WP(C).No. 23889 of 2018** -8- 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 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. 9. Section 83 of the Co-operative Societies Act deals with appeals to other authorities. As per clause (j) of sub-section (1) of Section 83, **WP(C).No. 23889 of 2018** -9- an appeal shall lie against any order made by any person exercising all or any of the powers of the Registrar. As per sub-section (2) of Section 83, an appeal under sub-section (1) of that Section shall be made within 60 days from the date of order or decision to the Government, if the order or decision was made by the Registrar; and to the Registrar, in other case. As per sub-section (2), the Government or the Registrar, as the case may be, shall pass such orders on such appeal as he may think fit. ## 10. In _**Commissioner of Income Tax V. Chhabil**_ _**Das Agarwal [(2014) 1 SCC 603]** ,_ the Apex Court reiterated 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 of 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 **WP(C).No. 23889 of 2018** -10- 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. ## 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** **WP(C).No. 23889 of 2018** -11- **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. 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 **WP(C).No. 23889 of 2018** -12- 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 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 **WP(C).No. 23889 of 2018** -13- 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 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 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 **WP(C).No. 23889 of 2018** -14- 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 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** **WP(C).No. 23889 of 2018** -15- **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 _**Pavithran V. State of Kerala (2009 (4)**_ _**KHC 4)**_ , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 15. Having considered the submission made by the learned counsel on both sides, in the light of the law laid down in the decisions referred to _supra_ , conclusion is irresistible that, the challenge made by the petitioners against Ext.P3 decision of the 5[th] respondent Society has to be raised before the Co-operative Arbitration Court in a petition filed under Section 69 of the Act. In such circumstances, leaving open all legal **WP(C).No. 23889 of 2018** -16- and factual contentions raised by the petitioners and also respondents 4 and 5, this writ petition is dismissed, reserving the right of the petitioners to challenge Ext.P3 order in appropriate proceedings under Section 69 of the Act. Sd/- ## **ANIL K.NARENDRAN** **JUDGE** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE CIRCULAR NO.73/13 OF THE 2ND RESPONDENT DATED 21.11.2013.** - **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 24.05.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE DECISION OF THE 5TH RESPONDENT DATED 23.06.2018.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 02.07.2017 SUBMITTED BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE DETAILS STATEMENTS OF ACCOUNTS OF THE 4TH RESPONDENT FOR THE FINANCIAL YEAR 2017-2018.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 10.04.2018 IN WP(C) NO.33131 OF 2010 BEFORE THIS HON'BLE COURT.** **WP(C).No. 23889 of 2018** -17- ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R4(A) TRUE COPY OF S.R.O.NO.198/69 DATED 12.05.1969. EXHIBIT R4(B) TRUE COPY OF CIRCULAR NO.28/96 DATED 07.11.1996. EXHIBIT R4(C) TRUE COPY OF RELEVANT PROVISION OF THE BYLAWS. EXHIBIT R4(D) TRUE COPY OF PROFIT AND LOSS ACCOUNT FROM 2012 TO 2017. EXHIBIT R4(E) TRUE COPY OF CIRCULAR NO.50/92 DATED 10.12.1992. EXHIBIT R4(F) TRUE COPY OF BALANCE SHEET AS ON 31.03.2018. EXHIBIT R4(G) TRUE COPY OF LETTER NO.414/2018 DATED 25.04.2018. EXHIBIT R4(H) TRUE COPY OF RESOLUTION DATED 30.04.2018. EXHIBIT R4(I) TRUE COPY OF RESOLUTION DATED 23.06.2018.** **//TRUE COPY// P.A. TO JUDGE** ## **bpr**