Shahina C. v. State of Kerala & 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. 3184 of 2019** ## **PETITIONER:** **SHAHINA C., D/O.LATE MUHAMMEDKUTTY, AGED 46 YEARS, CHEMMALA HOUSE, P.O.CHANDAKKUNNU, VELLIYAMTHODE, NILAMBUR, MALAPPURAM DISTRICT-679329.** **BY ADV. SMT.C.LEENA** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 ASSISTANT REGISTRAR, COOPERATIVE SOCIETIES, CIVIL STATION, 1ST FLOOR, P.O.CIVIL STATION, MALAPPURAM-679505.** - **3 JOINT REGISTRAR(GENERAL), COOPERATIVE SOCIETIES,CIVIL STATION, 1ST FLOOR, P.O.CIVIL STATION, MALAPPURAM-679505.** - **4 CHANDAKKUNNU VANITHA CO OPERATIVE SOCIETY LTD. NO.M733, NILAMBUR, P.O.CHANDAKKUNNU, MALAPPURAM DISTRICT-679329, REPRESENTED BY ITS SECRETARY.** - **5 PRESIDENT, CHANDAKKUNNU VANITHA CO OPERATIVE SOCIETY LTD. NO.M733,NILAMBUR, P.O.CHANDAKKUNNU, MALAPPURAM DISTRICT-679329.** **WP(C).No. 3184 of 2019** -2- **6 DISCIPLINARY SUB COMMITTEE, CHANDAKKUNNU VANITHA CO OPERATIVE SOCIETY LTD. NO.M733, NILAMBUR, P.O.CHANDAKKUNNU, MALAPPURAM DISTRICT-679329, REPRESENTED BY ITS PRESIDENT.** **SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 3184 of 2019** -3- ## **JUDGMENT** The petitioner, who is the Secretary of the 4[th] respondent Society, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, is placed under suspension by Ext.P10 order of suspension dated 11.01.2019 issued by the 5[th] respondent, after serving Ext.P5 memo of charges dated 27.12.2018, alleging certain misconducts. Now the petitioner is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 memo of charges and Ext.P10 order of suspension. The petitioner has also sought for a writ of mandamus commanding respondents 4 to 6 to drop the disciplinary proceedings initiated against her and permit her to join back and resume duty in the post of Secretary with full wages for the period she is kept out of job; or in the alternative a writ of mandamus commanding the 2[nd] respondent Assistant Registrar (wrongly stated as 3[rd] respondent in relief No.ii) to consider and act upon Ext.P9 representation dated 10.01.2019 (wrongly stated as Ext.P10 in relief No.ii) and **WP(C).No. 3184 of 2019** -4- Ext.P11 representation dated 16.01.2019, without any delay. 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 to 3. 3. The sole issue that arises for consideration in this writ petition is as to whether the petitioner is entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India to quash Ext.P5 memo of charges and Ext.P10 order of suspension dated 11.01.2019 issued by the 5[th] respondent; and also whether a writ of mandamus can be issued to the 2[nd] respondent Assistant Registrar to consider and act upon Exts.P9 and P11 representations made by the petitioner. 4. The pleadings and materials on record would show that the petitioner, who is the Secretary of the 4[th] respondent Society is being proceeded against in a disciplinary proceedings, by the issuance of Ext.P5 memo of charges. Thereafter, by Ext.P10 order dated 11.01.2019, she has been placed under suspension, by invoking the powers under Rule 198 of the Kerala Co-operative Societies Rules. **WP(C).No. 3184 of 2019** -5- 5. As per sub-rule (6) of Rule 198 of the Kerala Cooperative Societies Rules, 1969 (for brevity, 'the Rules), an authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (Act 27 of 1973). As per the proviso to sub-rule (6), an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act, 1972 (Act 27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules. 6. 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, **WP(C).No. 3184 of 2019** -6- 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 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. 7. In **Commissioner of Income Tax v. Chhabil** **WP(C).No. 3184 of 2019** -7- **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. 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 **WP(C).No. 3184 of 2019** -8- 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 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, **WP(C).No. 3184 of 2019** -9- 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 Article. 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 **WP(C).No. 3184 of 2019** -10- 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 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 **WP(C).No. 3184 of 2019** -11- 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 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 **WP(C).No. 3184 of 2019** -12- and has been followed by the Apex Court throughout. 11. In the instant case, the challenge made by the petitioner against Ext.P10 order of suspension dated 11.01.2019 issued by the President of the 5[th] respondent Bank and also reinstatement in service by revoking Ext.P10 order of suspension, are disputes which have to be raised for adjudication before the Co-operative Arbitration Court, in view of the provisions under clause (c) of sub-section (1) of Section 69 of the Act, read with clause (d) of sub-section (2) of Section 69. 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 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. 12. When statutory forums are created under Sections 69 and 70 of the Act for resolution of any disputes arising in connection with employment of officers and servants of the **WP(C).No. 3184 of 2019** -13- different classes of societies specified in sub-section (1) Section 80 of the Act, including promotion and _inter se_ seniority, without availing the same, the petitioner cannot invoke the writ jurisdiction of this court under Article 226 of the Constitution of India challenging Ext.P10 order of suspension or Ext.P5 memo of charges. 13. Now the issue that remains to be considered is as to whether the 2[nd] respondent Assistant Registrar can be directed to consider and pass appropriate orders on Exts.P9 and P11 representations made by the petitioner. A perusal of Exts.P9 and P11 representations would show that the reliefs sought for in those representations are reinstatement in service, by setting aside Ext.P10 order of suspension. In view of the provisions under Section 70A and Section 70B of the Kerala Co-operative Societies Act, the Registrar of Cooperative Societies or the officers who are authorised to exercise the powers of the Registrar, has absolutely no jurisdiction to interfere with the non-monetary dispute, which is referrable to the Co-operative Arbitration Court, under Section 69 of the Act. **WP(C).No. 3184 of 2019** -14- In such circumstances, this writ petition is dismissed; however, without prejudice to the right of the petitioner to approach the Co-operative Arbitration Court under Section 69 of the Kerala Co-operative Societies Act, for redressal of her grievances. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 3184 of 2019** -15- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF SHOW CAUSE NOTICE DATED NIL, ISSUED BY 5TH RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF REPLY DATED 28.11.2018 SENT BY PETITIONER IN REPLY TO EXHIBIT P1.** - **EXHIBIT P3 TRUE COPY OF LETTER DATED 25.10.2018 SENT BY AUDIT ASST. DIRECTOR, NILAMBUR.** **EXHIBIT P4 TRUE COPY OF REQUEST DATED 25.10.2018 SENT BY PETITIONER TO 5TH RESPONDENT. EXHIBIT P5 TRUE COPY OF CHARGE MEMO DATED 27.12.2018. EXHIBIT P6 TRUE COPY OF REQUEST DATED 2.1.2019 SENT BY PETITIONER TO 6TH RESPONDENT SEEKING TIME TO REPLY TO P5. EXHIBIT P7 TRUE COPY OF REPLY DATED 4.1.2019 TO P5. EXHIBIT P8 TRUE COPY OF LETTER DATED 7.1.2019 SENT BY PETITIONER TO 4TH RESPONDENT. EXHIBIT P9 TRUE COPY OF REPRESENTATION DATED 10.1.2019 SENT BY PETITIONER TO 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF SUSPENSION ORDER DATED 11.1.2019 ISSUED BY 5TH RESPONDENT. EXHIBIT P11 TRUE COPY OF REPRESENTATION DATED 16.1.2019 SENT BY PETITIONER TO 3RD RESPONDENT SEEKING TO SET ASIDE P9.** **RESPONDENTS' EXHIBITS:** **//TRUE COPY// P.A. TO JUDGE**