S. Venugopal v. Joint Registrar of Co-operative Societies, Kollam and Kollam District Co-operative Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** ## **WP(C).No. 21221 of 2018** ## **PETITIONERS:** **S.VENUGOPAL** **AGED 40 YEARS, S/O. SIVARAMA PILLAI,MANGALASSERIL HOUSE,KIDANGAYAM, KANNIMEL, NORTH MYNAGAPALLY, KOLLAM.** ## **BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENTS:** **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES KOLLAM PIN 691 013.** **2 KOLLAM DISTRICT CO-OPERATIVE BANK, KOLLAM PIN 691 001 REPRESENTED BY ITS GENERAL MANAGER.** **R1 BY SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER R2 BY SRI P.C.SASIDHARAN, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 21221 of 2018** **2** ## **JUDGMENT** The petitioner, who is presently working as Part-Time Sweeper in Thevalakkara Branch of the 2[nd] respondent District Co-operative Bank, which is a Society registered under the Kerala Co-operative Societies Act and the Rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to ensure that Ext.P3 communication dated 13.06.2018 is complied with by the 2[nd] respondent Bank within a time limit to be specified by this Court. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to grant him promotion to the post of Peon from the date of acceptance of relinquishment of promotion of Smt.Pankiyamma, Sl.No.7 in Ext.P5 Circular dated 25.01.2016 of the 2[nd] respondent, within a time limit to be fixed by this Court. 2. On 27.06.2018, when this writ petition came up for admission, this Court admitted the matter on file. The **WP(C).No. 21221 of 2018** **3** learned Senior Government Pleader took notice for the 1[st] respondent and the learned Standing Counsel took notice for the 2[nd] respondent. 3. A counter affidavit has been filed by the 2[nd] respondent. In paragraph 6 of the said counter affidavit it is pointed out that there are no vacancies at present in the cadre of Peon/Watchman and as such, the petitioner cannot be promoted to that post. In the said counter affidavit it has also been stated that the 1[st] respondent can only direct the 2[nd] respondent that the petitioner be considered to be promoted to the post of Peon as and when the vacancy of Peon arises. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1[st] respondent and also the learned Standing Counsel appearing for the 2[nd] respondent District Co-operative Bank. 5. The petitioner, who is presently working as Part- Time Sweeper in the Thevalakkara Branch of the 2[nd] **WP(C).No. 21221 of 2018** **4** respondent District Co-operative Bank, is virtually seeking promotion to the post of Peon. In Ext.P3 communication dated 13.06.2018, the 1[st] respondent has only directed the 2[nd] respondent to consider the claim made by the petitioner for promotion, in accordance with law. If the petitioner has a case that he has denied promotion to the post of Peon, despite the availability of vacancy in the quota earmarked for promotees, it is for him to raise an appropriate dispute before the Co-operative Arbitration Court, by invoking the provisions under Section 69 of the Kerala Co-operative Societies Act, 1969. 6. Section 69 of the Kerala Co-operative Societies Act, 1969 deals with disputes to be decided by Cooperative 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, **WP(C).No. 21221 of 2018** **5** 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 subsection (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. 7. 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 **WP(C).No. 21221 of 2018** **6** 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. 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 **WP(C).No. 21221 of 2018** **7** 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 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 **WP(C).No. 21221 of 2018** **8** 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 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, **WP(C).No. 21221 of 2018** **9** 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- Judge Bench of the Apex Court held that, the Orissa Sales **WP(C).No. 21221 of 2018** **10** 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."_ The rule laid down in that passage was approved by the **WP(C).No. 21221 of 2018** **11** 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 _**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 petition is of any statutory violation on the part of the Cooperative **WP(C).No. 21221 of 2018** **12** 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 Cooperative 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 Cooperative Society, which is State or authority within the meaning of Article 12 of the Constitution. ## 12. In _**Association of Milma Officers' case**_ _**(supra)**_ , the 2[nd] petitioner was working as Senior Manager-in-charge of Thiruvananthapuram Regional Cooperative 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 2nd petitioner was eligible to be appointed in the post of Senior Manager (Diary) respondents 3 and 4 were taking hasty steps to **WP(C).No. 21221 of 2018** **13** 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 nonstatutory 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. In such circumstances, for claiming promotion to the post of Peon, it is for the petitioner to move the Cooperative Arbitration Court, by invoking the provisions under Section 69 of the Act. Leaving open the aforesaid right of the petitioner, this writ petition is dismissed. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/13/2 **WP(C).No. 21221 of 2018** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 01-06-2017 BEFORE THE GENERAL MANAGER.** **EXHIBIT P2** **TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT UNDER SEC. 69 OF THE COOPERATIVE SOCIETIES ACT DATED 30-102017.** **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 13-06-2018** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES DATED 11-06-2014.** **EXHIBIT P5 TRUE COPY OF CIRCULAR DATED 25-01-2016 OF 2ND RESPONDENT BANK.** **EXHIBIT P6 TRUE COPY OF THE ORDER IN WP(C) NO. 37781/2016 DATED 21-12-2016.**