Sindhu.P.G. v Vaikom Taluk Co-operative Agricultural and Rural Development Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945** ## **WP(C) NO. 39569 OF 2023** ## **PETITIONER:** SINDHU.P.G. AGED 42 YEARS NIKARTHIL HOUSE, CHEMMANATHU KARA P.O, VAIKOM, KOTTAYAM, PEON (NOW TERMINATED FROM SERVICE) VAIKOM TALUK CO-OPERATIVE AGIRCULTURAL AND RURAL DEVELOPMENT BANK LTD.NO. K.951, KACHERIKAVALA, VAIKOM, KOTTAYAM, PIN - 695002 BY ADVS. B.S.SWATHI KUMAR HARISANKAR N UNNI ANITHA RAVINDRAN NAIR RANJANA UNNIKRISHNAN SWATHY UNNIKRISHNAN K.K. ## **RESPONDENTS:** 1 THE VAIKOM TALUK CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO. K.951 KACHERIKAVALA VAIKOM, KOTTAYAM DISTRICT REPRESENTED BY ITS SECRETARY, PIN - 686141 2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES GENERAL COLLECTORATE, KOTTAYAM, PIN - 686002 3 THE MANAGING COMMITTEE OF THE VAIKOM TALUK CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO. K.951 KACHERIKAVALA VAIKOM, KOTTAYAM DISTRICT REPRESENTED BY ITS PRESIDENT, PIN - 686141 ## **OTHER PRESENT:** SMT. MARY BEENA JOSEPH, SR. GP. & SRI. T SHIHABUDHEEN FOR CO-OPERATIVE BANK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- **W.P.(C) NO.39569 OF 2023** ## **JUDGMENT** The petitioner joined the service of the 1[st] respondent Bank as a 'Peon' on 23.11.2017. She was confirmed in service after completing her probation. She has approached this Court being aggrieved by ExtP17 order issued by the President of 1st respondent holding that the appointment of the petitioner was illegal and the consequent order of termination from service. The petitioner asserts that the action is against the mandate of the Kerala Co-operative Societies Act and the Rules framed thereunder 2. Sri. Swathi Kumar B.S, the learned counsel appearing for the petitioner submits that it is pursuant to the directions issued by this Court in Exts.P14 and P15 judgments that Ext.P17 was passed. The learned counsel submits that this Court had directed that all relevant aspects and rival claims be considered and the statutory provisions scrupulously adhered to while taking a decision. Referring to Ext.P17, it is submitted that none of these aspects were considered by the concerned respondent while passing Ext.P17 order. -3- ## **W.P.(C) NO.39569 OF 2023** 3. In response, the learned Government Pleader, as well as the learned counsel appearing for the Society submits that the petitioner has an equally efficacious remedy in approaching the Jurisdictional Forum by invoking Section 69 of the Co-operative Societies Act. 4. I have considered the submissions advanced and I have gone through the records. I find that it is pursuant to the directions issued by this in Exhibit P12 and Exhibit P15 judgments that the Committee has proceeded to pass the order impugned. The petitioner therefore cannot raise a contention that the order has been passed wholly without jurisdiction. Section 69 of the KCS Act confers powers on the Co-operative Arbitration Court and Registrar to decide disputes mentioned therein. Section 62 (2) (d) provides that for the purpose of sub-section (1) any dispute arising in connection with employment of officers and servants of different classes of societies including their promotion and inter se seniority shall also be deemed to be a dispute which could be decided by the authorities mentioned therein. In that view of the matter, the petitioners have a remedy in approaching the jurisdictional authority by invoking Section 69 of the Co-operative Societies Act. 5. The question therefore is whether when the petitioner has an alternate efficacious remedy, which is effective and efficacious, there is any justification in approaching this Court to invoke its extraordinary -4- ## **W.P.(C) NO.39569 OF 2023** jurisdiction under Article 226 of the Constitution of India. 6. The Apex Court in **South Indian Bank Ltd and others v. Naveen Mathew Philip and another[1]** have outlined the principles. It was held as follows in paragraph 27 of the judgment. 27. The principles of law which emerge are that: 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is 1 2023 SCC Online SC 435 -5- ## **W.P.(C) NO.39569 OF 2023** provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 7. Having considered the principles above, I am of the considered opinion that it is for the petitioner to approach the jurisdictional forum constituted under Section 69 of the Act and there is no reason for this Court to entertain this petition by exercising its extraordinary powers under Article 226 of the Constitution of India. The petitioners can raise all their contentions, including the violation of the statutory rules. The rule of exhaustion of statutory remedies is a rule of policy convenience and discretion. 8. Reserving the right of the petitioner to -6- ## **W.P.(C) NO.39569 OF 2023** approach the jurisdictional forum, this writ petition is dismissed. **Sd/RAJA VIJAYARAGHAVAN V. JUDGE** rsr -7- **W.P.(C) NO.39569 OF 2023** ## **APPENDIX OF WP(C) 39569/2023** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER NO. 523/2017 DATED 23-11-2017 OF THE PETITIONER. - Exhibit P2 TRUE COPY OF THE RESOLUTION NO. 5(B) DATED 26-11-2018 OF THE 1ST RESPONDENT. - Exhibit P3 TRUE COPY OF TH ORDER DATED 26-11-2018 BY THE PRESIDENT OF THE 1ST RESPONDENT. - Exhibit P4 TRUE COPY OF THE LETTER DATED 3-1-2018 OF THE 1ST RESPONDENT. - Exhibit P5 TRUE COPY OF THE RELEVANT PORTION OF THE AUDIT CERTIFICATE FOR THE YEAR 2019-20 DATED 15-10-2020 - Exhibit P6 TRUE COPY OF THE RECTIFICATION OF THE DEFECTS NOTED BY THE AUDITOR DATED NIL. - Exhibit P7 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 19-5-2021 ISSUED BY THE ADMINISTRATIVE COMMITTEE OF THE 1ST RESPONDENT TO THE PETITIONER. - Exhibit P8 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 18-6-2021 - Exhibit P9 TRUE COPY OF THE ORDER NO. 92/2021 DATED 8-7-2021 ISSUED BY THE ADMINISTRATIVE COMMITTEE CONVENER OF THE 1ST RESPONDENT. - Exhibit P10 TRUE COPY OF THE JUDGMENT IN W.P.( C)NO. 14185/2021 DATED 2-6-2022 - Exhibit P11 TRUE COPY OF THE SHOW CAUSE NOTICE NO. 38/22-23 DATED 9-6-2022 ISSUED BY THE ADMINISTRATIVE COMMITTEE CONVENOR OF THE -8- ## **W.P.(C) NO.39569 OF 2023** 1ST RESPONDENT. Exhibit P12 TRUE COPY OF THE JUDGMENT IN W.P.( C)NO. 19820/2022 DATED 23-8-2022 Exhibit P13 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 2-2-2023 ISSUED BY THE PRESIDENT OF THE 1ST RESPONDENT TO THE PETITIONER. Exhibit P14 TRUE COPY OF THE JUDGMENT IN R.P.NO. 652/2023 DATED 5-7-2023 Exhibit P15 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 7670/2023 DATED 5-7-2023 Exhibit P16 TRUE COPY OF THE EXPLANATION DATED 4-92023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. Exhibit P17 TRUE COPY OF THE ORDER NO. 8/2023-24 DATED 14-11-2023 ISSUED BY THE PRESIDENT OF THE 1ST RESPONDENT