P.S. Karthikeyan v. Registrar of Co-operative Societies, Thiruvananthapuram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** **WP(C).No. 21454 of 2017** ## **PETITIONERS:** **P.S.KARTHIKEYAN AGED 52 YEARS SUPERINTENDENT,THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD,ESTATE SECTION,HEAD OFFICE,THIRUVANANTHAPURAM,RESIDING AT 'NANDANAM'.TC 50/74-4,THETTIKAD LANE,KARAMANA.P.O,THIRUVANANTHAPURAM-695002.** **BY ADV. SRI.T.R.HARIKUMAR** ## **RESPONDENTS:** - **1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM-695001.** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM-695001.** - **3 THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE,EAST FORT, THIRUVANANTHAPURAM-695001.** - **4 THE PART -TIME ADMINISTRATOR THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD, HEAD OFFICE,EAST FORT, THIRUVANANTHAPURAM-695001. (JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),THIRUVANANTHAPURAM).** W.P.(C)No.21454/2017 -2- **5 INDIRA.T.V CHIEF ACCOUNTANT,THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD,NANTHANCODE BRANCH, RESIDING AT TC NO.6/246(7),NETHAJI ROAD, VATTIYOORKAVU.P.O,THIRUVANANTHAPURAM-695011.** **BY ADVS. R1 & R2 BY GOVERNMENT PLEADER SMT.MABLE C.KURIAN R5 BY SRI.S.JUSTUS R3 & R4 BY SRI.THOMAS ABRAHAM SC THIRUVANANTHAPURAM DIST. CO.OP BANK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.21454/2017 -3- ## **JUDGMENT** The petitioner, who is working as Superintendent in the Estate Section and Head Office of the 3[rd] respondent District Cooperative Bank has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 order dated 16.05.2017 to the extent it regularises the promotion of the 5[th] respondent in the 35[th] vacancy and fixation of pay. 2. On 30.06.2017 when this writ petition came up for admission, learned Government Pleader took notice for respondents 1 and 2. Learned Standing Counsel took notice for respondents 3 and 4. Notice by speed post was ordered to the 5[th] respondent returnable within two weeks. In the meanwhile , an interim direction not to regularise the promotion of the 5[th] respondent for a period of one month was granted. Though the said interim order was extended from time to time, it expired on 14.08.2018. Thereafter, the order was revived and extended on 04.12.2018, which is still in force. In the interregnum, the 5[th] respondent was granted promotion against a regular vacancy and W.P.(C)No.21454/2017 -4- she is continuing as such. 3. Heard the learned counsel for the petitioner, learned Senior Government Pleader appearing for respondents 1 and 2, the learned Standing Counsel for the District Co-operative bank representing the respondents 3 and 4 and also the learned counsel for the 5[th] respondent. 4. 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 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 W.P.(C)No.21454/2017 -5- 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 nonentertainment 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 W.P.(C)No.21454/2017 -6- 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 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 W.P.(C)No.21454/2017 -7- 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 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. W.P.(C)No.21454/2017 -8- 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. 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 W.P.(C)No.21454/2017 -9- 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 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 W.P.(C)No.21454/2017 -10- ## 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 challenge made by the petitioner against the promotion of the 5th respondent by Ext.P9 order 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 subsection (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 W.P.(C)No.21454/2017 -11- 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. The learned counsel for the 5[th] respondent would submit that the 5[th] respondent has already been granted promotion against a regular vacancy, during the pendency of this writ petition, and she is continuing as such. 11. Therefore, if the petitioner is having any dispute as to the promotion granted to the 5[th] respondent, it is for him to challenge the same before the Co-operative Arbitration Court, invoking Section 69 of the Kerala Co-operative Societies Act. Such a dispute cannot be decided in a writ petition filed under Article 226 of the Constitution of India. In the result, this writ petition is dismissed; however W.P.(C)No.21454/2017 -12- without prejudice to the right of the petitioner to invoke the statutory remedy under Section 69 of the Act, if so advised. Sd/- **ANIL K. NARENDRAN JUDGE** dsn W.P.(C)No.21454/2017 -13- ## **APPENDIX OF WP(C) 21454/2017** **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS NOI.C.B(3)9755/2014 DATED 04.09.2014 OF THE 1ST RESPONDENT** - **EXHIBIT P2 A TRUE COPY OF THE RESOLUTION NO.3 DATED 13.04.2016 FOR THE MANAGING COMMITTEE OF THE 3RD RESPONDENT BANK** - **EXHIBIT P3 A TRUE COPY OF THE APPLICATION DATED 15.04.2016 SUBMITTED BY THE 3RD RESPONDENT BANK BEFORE THE 1ST RESPONDENT** - **EXHIBIT P4 A TRUE COPY OF THE DETAILS OF THE CLASSIFICATION AS ON 31/03/2016** - **EXHIBIT P5 A TRUE COPY OF THE PROCEEDINGS NO.ADM/ESTT/E1/362/2016-17 DATED 19-04-2016 OF THE 1ST RESPONDENT** - **EXHIBIT P6 A TRUE COPY OF THE ORDER NO.CB(3)47298/16 DATED 20-05-2017 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P7 A TRUE COPY OF THE INTERIM ORDER DATED 06.06.2017 IN WP(C)NO.18687 0F 2017** - **EXHIBIT P8 A TRUE COPY OF THE CIRCULAR NO.15/2011 DATED 09.02.2011** - **EXHIBIT P9 A TRUE COPY OF THE PROCEEDING NO.ADM/ESTT/E1/2322/2017-18 DATED 16-05-2017 OF THE 1ST RESPONDENT** - **EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE TDCB EMPLOYEES UNION BEFORE THE 1ST RESPONDENT DATED 06.06.2017.** W.P.(C)No.21454/2017 -14- **RESPONDENTS' EXTS:** **EXT.R5(A): TRUE COPY OF RELEVANT PAGES OF NOTIFICATION DT.4.3.2016 OF THE ELECTION COMMISSION OF INDIA.** **EXT.R5(B): TRUE COPY OF QUALIFYING EXAMINATION PASS CERTIFICATE DT.19.9.2016.** **EXT.R5(C): TRUE COPY OF REPRESENTATION DT.19.4.17 SUBMITTED BEFORE THE 3RD RESPONDENT.**