Saheer Kalady v Malabar Co-operative Textiles Ltd & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **WP(C).No. 2551 of 2019** ## **PETITIONER :** **SAHEER KALADY,AGED 38 YEARS S/O.KUNHEEDUTTY, MANAGER (ACCOUNTS) THE MALABAR COOPERATIVE TEXTILES LTD, (MALCOTEX),KARTHALA CHUNGAM, ATHAVANAD P.O., MALAPPURAM, RESIDING AT KALADY MUDUVIL HOUSE, NH,CHINAKKAL, RANDATHANI P.O., MALAPPURAM DISTRICT.** **BY ADV. SRI.P.V.BABY** ## **RESPONDENTS:** - **1 THE MALABAR CO-OPERATIVE TEXTILES LTD, (MALCOTEX),KARTHALA CHUNGAM, ATHAVANAD P.O., MALAPPURAM, -676 301, REPRESENTED BY ITS MANAGING DIRECTOR** - **2 THE DIRECTOR OF HANDLOOM AND TEXTILES, DIRECTORATE OF HANDLOOM AND TEXTILE, 4TH FLOOR, VIKAS BHAVAN, THIRUVANANTHPAURAM-695 001** - **3 THE KERALA STATE CO-OPERATIVE TEXTILE FEDERATION LTD, (TEXFED),T.C.4/1759, MUTHUSWAMY LANE, DEVASWOM BOARD JUNCTION, THIRUVANANTHAPURAM-695 003, REPRESENTED BY ITS MANAGING DIRECTOR** - **4 THE ADMINSTRATIVE COMMITTEE OF THE MALABAR COOPERATIVE TEXTILES LTD,(MALCOTEX),KARTHALA CHUNGAM, ATHAVANAD P.O., MALAPPURAM-676 301, REPRESENTED BY ITS CHAIRMAN** **BY ADVS. SMT.LATHA ANAND SRI.P.U.SHAILAJAN SRI.JOSEPH SEBASTIAN (PARACKAL)** **BY SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2551 of 2019** **2** ## **JUDGMENT** The petitioner, who is an employee of the 1[st] respondent Malabar Co-operative Textiles Ltd. (a primary society under the 3[rd] respondent Apex Federation), which is presently administered by the 4[th] respondent Administrative Committee, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 show cause notice dated 17.01.2019 issued by the 1[st] respondent and seeking a writ of mandamus commanding the respondents to consider Ext.P2 application dated 17.01.2019, before 01.03.2019, and to sanction the leave as applied for in Ext.P2. 2. On 29.01.2019, when this writ petition came up for admission, the learned counsel for the 1[st] respondent and also the learned counsel for the 2[nd] respondent sought time to get instructions. While adjourning the matter, it was made clear that it would be open to the said respondents to file counter affidavits. **WP(C).No. 2551 of 2019** **3** 3. A counter affidavit has been filed by the 1[st] respondent opposing the reliefs sought for in this writ petition. In the said counter affidavit, a contention as to the maintainability of this writ petition under Article 226 of the Constitution of India, in view of the statutory remedy under Section 69 of the Kerala Co-operative Societies Act, 1969, is also raised. 4. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent, learned Senior Government Pleader appearing for the 2[nd] respondent and also the learned Standing Counsel for the 3[rd] respondent. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P3 show cause notice dated 17.01.2019 issued by the 1[st] respondent. By Ext.P3 show cause notice, the petitioner has been asked to offer explanation why disciplinary action should not be taken against him for the reason that in the Sales Invoice No.48 dated 12.01.2019 **WP(C).No. 2551 of 2019** **4** prepared by him for the sale of 6500 Kgs of 60s Karded Yarn and 2000 Kgs of 60s Combed Yarn sent to M/s.Sagar Enterprises where in the rate for 60s Combed yarn was shown as Rs.252 per Kg instead of Rs.255 per kg. It has resulted in short payment of Rs.6,300/-. A mistake in the same manner was noted in a waste sale previously, which was later found out and corrected. On receipt of Ext.P3 show cause notice, the petitioner has submitted Ext.P4 reply dated 19.01.2019. 6. The fact that the 1[st] respondent is a Society registered under the Kerala Co-operative Societies Act and the rules made thereunder, is not in dispute. Therefore, the petitioner, who is an employee of a Co-operative Society, cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, once a show cause notice is issued by the employer, alleging any misconduct. 7. Section 69 of the Kerala Co-operative Societies Act, 1969 deals with disputes to be decided by Co-operative Arbitration Court and Registrar. As per clause (c) of sub- **WP(C).No. 2551 of 2019** **5** 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 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 **WP(C).No. 2551 of 2019** **6** promotion and inter se seniority, shall also be deemed to be disputes. ## 8. 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. 9. In _**Authorised Officer, State Bank of**_ **WP(C).No. 2551 of 2019** **7** _**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 held that High Court **WP(C).No. 2551 of 2019** **8** 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. 10. 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 **WP(C).No. 2551 of 2019** **9** 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 **WP(C).No. 2551 of 2019** **10** resort to the machinery so set up. 11. 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_ **WP(C).No. 2551 of 2019** **11** _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. 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 **WP(C).No. 2551 of 2019** **12** 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 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. ## 13. 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 **WP(C).No. 2551 of 2019** **13** 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 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 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. Having considered the submissions 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 petitioner is not entitled to invoke the writ jurisdiction of this Court under Article 226 of the **WP(C).No. 2551 of 2019** **14** Constitution of India for the reliefs sought for in this writ petition. In such circumstances, the writ petition fails and the same is dismissed, without prejudice to the right of the petitioner to invoke the statutory remedy available under Section 69 of the Kerala Co-operative Societies Act. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/14/2 **WP(C).No. 2551 of 2019** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 17/1 2019 SUBMITTED BY THE PETITIONER OT THE 1ST RESPONDENT** - **EXHIBIT P2 A TRUE PHOTOCOPY OF THE APPLICATION DATED 17/1/2019 SUBMITTED BY THE PETITIONER ADDRESSED TO THE ADMINISTRATIVE COMMITTEE OF THE 1ST RESPONDENT** - **EXHIBIT P3 A TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 17/1/2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER** - **EXHIBIT P4 A TRUE PHOTOCOPY OF THE EXPLANATION DATED 19/1/2019 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT** - **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF MINUTES OF MEETING DATED 9.1.2019 EXHIBIT R1(B) TRUE COPY OF EMAIL SENT BY THE PETITIONER EXHIBIT R1(C) TRUE COPY OF PROFORMA INVOICE**