R. Gopalakrishnan Nair v. The Thiruvananthapuram Regional Co-operative Producers Union Ltd. (MILMA) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940** **WP(C).No. 3345 of 2019** ## **PETITIONERS:** **R.GOPALAKRISHNAN NAIR, AGED 57 YEARS S/O RAGHAVAN PILLAI, T.C.28/399, CHAKKALAVILAKAM, VANCHIYOOR, THIRUVANANTHAPURAM 35.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS:** - **1 THE THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE PRODUCERS UNION LTD., (MILMA), KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, KERALA 695 004,REPRESENTED BY ITS MANAGING DIRECTOR.** - **2 THE MANAGING DIRECTOR,** - **THE THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE PRODUCERS UNION LTD.(MILMA), KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, KERALA 695 004.** - **3 THE SENIOR MANAGER (P AND I), THE THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE PRODUCERS UNION LTD, (MILMA),KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, KERALA 695 004.** - **4 THE JOINT REGISTRAR (CO-OPERATIVE SOCIETY), THIRUVANANTHAPURAM-695 001.** - **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER SMT LATHA ANAND, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.3345/2019 -2- ## **JUDGMENT** The petitioner who is presently working as Milk Procurement Officer at Kollam Unit of the 1[st] respondent Thiruvananthapuram Regional Co-operative Producers Union Ltd., which is a society registered under the provisions of the Kerala Co-operative Societies Act, 1969 and the rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order dated 14.1.2015 of the 2[nd] respondent (wrongly stated as Ext.P5 in relief No.(ii) and Ext.P7 order dated 16.4.2015 of the said respondent and a writ of mandamus commanding the 2[nd] respondent to sanction and disburse the financial benefits pursuant to the time bound higher grade promotion, while implementing the decision of the Board of Directors at its meeting held on 22.1.2014 in Item No.18(5) forthwith. 2. Heard the learned counsel for the petitioner, learned Standing Counsel for MILMA representing respondents 1 to 3 and also the learned Senior Government Pleader appearing for the 4[th] W.P.(C)No.3345/2019 -3- respondent. 3. The sole issue that arises for consideration in this writ petition is as to whether the petitioner who is an employee in the Kollam Unit of the 1[st] respondent Society is entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India challenging Exts.P4 and P7 orders of the 2[nd] respondent. 4. The petitioner is challenging Ext.P4 order of the 2[nd] respondent on the ground that it is one issued in deviation from Ext.P3 decision of the Board of Directors of the 1[st] respondent in its meeting held on 22.11.2014 vide Item No.18(5). Contrary to Ext.P3, it was decided in Ext.P4 that the period of suspension of the petitioner pending enquiry from 16.07.1991 to 06.03.1992 has to be treated as loss of pay leave for the limited purpose of granting higher grade. 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 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 W.P.(C)No.3345/2019 -4- 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 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. 6. Section 70(B) of the Act would make it explicitly clear that, on constitution of a Co-operative Arbitration Court, every dispute pending before the Registrar or any person invested with W.P.(C)No.3345/2019 -5- the power to dispose of the dispute by the Government or the Arbitrator appointed by the Registrar, in respect of non-monetary disputes, relating to the local area of jurisdiction of the Arbitration Court, shall be transferred to such Arbitration Court and the Court shall dispose of the same as if it were a dispute referred to it under Section 69. 7. 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 High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists W.P.(C)No.3345/2019 -6- sufficient ground to invoke the extraordinary jurisdiction under Article 226. 8. 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 down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd.** W.P.(C)No.3345/2019 -7- **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. 9. 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. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode W.P.(C)No.3345/2019 -8- 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 the machinery so set up. 10. In **Titaghur Paper Mills' case (supra)** a Three- W.P.(C)No.3345/2019 -9- 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 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." W.P.(C)No.3345/2019 -10- 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. 11. In the instant case, the challenge made by the petitioner against Exts.P4 and P7 orders of the 2nd respondent and to sanction and disburse the financial benefits pursuant to the time bound higher grade promotion by regularising his period of suspension from 16.07.1991 to 06.03.1992, as sought for in Ext.P6 representation 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 subsection (2) of Section 70 of the Act, the Co-operative Arbitration Court is empowered to make such interlocutory orders as it may W.P.(C)No.3345/2019 -11- 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 Societies in connection with their employment, including promotion and inter se seniority. 12. 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 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 W.P.(C)No.3345/2019 -12- petition is of any statutory violation on the part of the Cooperative 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 meaning of Article 12 of the Constitution. 13. 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 W.P.(C)No.3345/2019 -13- 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 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. 14. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reliefs sought for in this writ petition cannot be entertained in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. The question as to whether the petitioner can raise a belated challenge against Exts.P4 and P7 orders of the year 2015 is left open to be decided by the statutory authority. In such circumstances this writ petition filed on 4.2.2019 is dismissed for the aforesaid reason, however without prejudice to W.P.(C)No.3345/2019 -14- the right, if any, of the petitioner to invoke the statutory remedy under Section 69 of the Kerala Co-operative Societies Act. Sd/- **ANIL K. NARENDRAN JUDGE** dsn W.P.(C)No.3345/2019 -15- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 2.7.2014** **EXHIBIT P2** **TRUE COPY OF THE REPORT OF THE SERVICE CONSULTANT SRI. B.SASIKUMAR DATED 21.11.2014** **EXHIBIT P3** **TRUE COPY OF THE DECISION OF THE BOARD OF DIRECTORS AT ITS MEETING HELD ON 22.11.2014 IN ITEM NO 18(V)** **EXHIBIT P4 TRUE COPY OF THE ORDER NO TRU/PER/33/2015-447/DATED 14.1.2015** **EXHIBIT P5** - **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 27.2.2015 WHEREBY HE EXPRESSED HIS WILLINGNESS TO REIMBURSE THE SUBSISTENCE ALLOWANCE.** **EXHIBIT P6** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR DATED 27.2.105** - **EXHIBIT P7** **TRUE COPY OF THE ORDER DATED 16.4.2015 ISSUED BY THE 2ND RESPONDENT** **RESPONDENTS' EXTS: NIL**