Sulochana B and others v. Kasaragod District Co-operative Bank and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940** ## **WP(C).No. 37781 of 2016** ## **PETITIONERS:** - **1 SULOCHANA B** **PART TIME SWEEPER, THALANGARA BRANCH,KASARAGOD DISTRICT COOPERTIVE BANK,KASARAGOD.** - **2 SHANKARI M PART TIME SWEEPER, HEAD OFFICE,KASARAGOD DISTRICT COOPERTIVE BANK,KASARAGOD.** - **3 MADHU P** - **PART TIME SWEEPER, PANATHUR BRANCH,KASARAGOD DISTRICT COOPERTIVE BANK,KASARAGOD.** - **4 RAJI K** **PART TIME SWEEPER, CHERKALA BRANCH,KASARAGOD DISTRICT COOPERTIVE BANK,KASARAGOD.** - **5 LATHA P** **PART TIME SWEEPER, MADIYAN BRANCH,KASARAGOD DISTRICT COOPERTIVE BANK,KASARAGOD.** **6 LALITHA K PART TIME SWEEPER, KALIKADAVU BRANCH,KASARAGOD DISTRICT COOPERTIVE BANK,KASARAGOD.** ## **7 SHYMA K** **PART TIME SWEEPER, MELPARAMBA BRANCH,KASARAGOD DISTRICT COOPERTIVE BANK,KASARAGOD.** **BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** **BY SR.GOVERNMENT PLEADER SRI.BIMAL K NATH** ## **RESPONDENTS:** **KASARAGOD DISTRICT COOPERATIVE BANK REPRESENTED BY ITS GENERAL MANAGER,KASARAGOD - 671 120.** **1** **WP(C).No. 37781 of 2016** **2** - **2 BOARD OF DIRECTORS KASARAGOD DISTRICT COOPERATIVE BANK,REPRESENTED BY ITS PRESIDENT,KASARAGOD - 671 120.** - **3 JOINT REGISTRAR OF COOPERTIVE SOCIETIES GENERAL OFFICE OF JOINT REGISTRAR OF COOPERATIVE SOCIETIES,CIVIL STATION, B BLOCK, VIDYA NAGAR P.O.,KASARAGOD - 671 123.** - **4 REGISTRAR OF COOPERATIVE SOCIETIES OFFICE OF REGISTRAR OF COOPERATIVE SOCIETIES,THIRUVANANTHAPURAM - 695 001.** ## ***ADDL.R5 & R6 IMPLEADED** - **ADDL.R 5 BIJITH M, S/O.MOHANAN, BANGARAKUNNU, NELLIKUNNU, KASARGODE, KANNUR DT.** - **ADDL.R 6 K.SAJITHA, AGED 32, D/O.KUNHIKANNAN, 'SUSHEELA GOPALAN' HOUSING COLONY, KELOTHE P.O., HARIPURAM, KASARGODE.** ***ADDL.R5 & ADDL.R6 IMPLEADED AS PER ORDER DATED 20.12.2016 IN I.A.NO.20828/16** **BY ADVS. SRI.M.SASINDRAN, SC, KASARAGOD DISTRICT COOPERATIVE BANK LIMITED SMT.P.SHEEBA SRI.JAWAHAR JOSE SC KASARAGOD DIST. CO.OP BANK LTD. SRI.K.S.PRAVEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 37781 of 2016** **3** ## **JUDGMENT** The petitioners, who are working as Part Time Sweepers at different branches of the 1[st] respondent District Co-operative Bank, which is a Society registered under the Kerala Co- operative Societies Act, 1969 and the rules made thereunder, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 memo dated 05.11.2016 issued by the 1[st] respondent. The petitioners have sought for a writ of mandamus commanding the 2[nd] respondent to consider their claim for promotion to the cadre of Peon, either temporarily or on working arrangement basis, in accordance with law, within a time limit to be fixed by this Court. The petitioners have also sought for a declaration that they are entitled to be appointed as Peons either temporarily or working arrangement basis, as they are discharging duties of Peons. **WP(C).No. 37781 of 2016** ## **4** 2. On 25.11.2016, when this writ petition came up for admission, the learned Standing Counsel for the 1[st] respondent Bank was directed to get instructions. Thereafter, on 21.12.2016, when this writ petition came up for consideration, this Court admitted the matter on file. The learned Standing Counsel took notice for respondents 1 and 2 and the learned Senior Government Pleader took notice for respondents 3 and 4. This Court passed an interim order directing respondents 1 and 2 to provisionally promote the petitioners as Peons to the existing vacancies, until regular hands are appointed. It was made clear that the said order will not confer any right on the petitioners to claim regular promotion to the post of Peon, otherwise than in accordance with the rules applicable. Paragraphs 3 and 4 of the said order read thus: _“3. Petitioners are working as Part Time Sweepers in the service of the first_ **WP(C).No. 37781 of 2016** **5** _respondent District Co-operative Bank ('the bank'). There are vacancies in the cadre of Peon in the service of the bank. The petitioners are entitled to be promoted to the post of Peon, but only at the ratio 1:19. The existing vacancies are, therefore, not sufficient to enable the petitioners to claim promotion in accordance with the said ratio. According to the petitioners, since vacancies are existing, they are required to work as Peon and are working as Peon. The petitioners, therefore, claim promotion to the post of Peon provisionally till regular hands are appointed._ _4. The bank does not dispute the fact that the petitioners are working as peons. Since the petitioners are working as Peons, in the light of the decision of the Apex Court in_ _**State of Punjab v. Jagjith Singh** [ILR 2016(4) Kerala 419], they are entitled to be paid wages applicable to Peons. If work of the Peon can be extracted from the petitioners, I find no reason why they shall not be promoted provisionally until regular hands occupy the vacancies. In the circumstances, I deem it appropriate to pass an interim order directing respondents 1 and 2 to provisionally promote the petitioners as peons to the existing vacancies until regular hands are appointed. It is made clear that this order will not confer the petitioners any right to claim regular promotion to the post of Peon_ **WP(C).No. 37781 of 2016** **6** _otherwise that in accordance with the rules applicable.”_ 3. A counter affidavit has been filed by respondents 1 and 2 opposing the reliefs sought for in this writ petition. Additional respondents 5 and 6 have also filed a counter affidavit. 4. Heard the learned counsel for the petitioners, the learned Standing Counsel for the 1[st] respondent District Co-operative Bank representing respondents 1 and 2, the learned Senior Government Pleader appearing for respondents 3 and 4 and also the learned counsel for additional respondents 5 and 6. 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 **WP(C).No. 37781 of 2016** **7** 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 **WP(C).No. 37781 of 2016** **8** seniority, shall also be deemed to be disputes. 6. 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. **WP(C).No. 37781 of 2016** **9** 7. 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 **WP(C).No. 37781 of 2016** **10** 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, a writ petition should not be entertained ignoring the statutory dispensation. ## 8. 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 **WP(C).No. 37781 of 2016** **11** 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 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 **WP(C).No. 37781 of 2016** **12** 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. 9. In **Titaghur Paper Mills' case (supra)** a Three-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 **WP(C).No. 37781 of 2016** **13** 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.** **WP(C).No. 37781 of 2016** **14** **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. 10. In the instant case, the claim made by the petitioners for promotion to the post of Peon 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 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- **WP(C).No. 37781 of 2016** **==> picture [15 x 9] intentionally omitted <==** 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 Banks in connection with their employment, including promotion and inter se seniority. 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 ## **WP(C).No. 37781 of 2016** ## **16** statutory violation on the part of the Cooperative Society or the action of the Cooperative 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. ## 12. 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 **WP(C).No. 37781 of 2016** **17** 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 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. 13. The learned counsel for the petitioners would submit that the petitioners shall invoke the statutory remedy available under Section 69 of the Act, for redressal of their grievances. **WP(C).No. 37781 of 2016** **18** The learned counsel would submit that since the petitioners have already been granted provisional promotion on the strength of the interim order granted by this Court on 21.12.2016, _status quo_ may directed to be maintained, till a decision is taken by the Cooperative Arbitration Court, on the reference to be made by the petitioners. 14. The learned Standing Counsel for the 1[st] respondent Bank would submit that the petitioners are continuing as Peons, on provisional basis, on the strength of the interim order granted by this Court on 21.12.2016. 15. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by relegating the petitioners to invoke the statutory remedy available under Section 69 of the Kerala Co- operative Societies Act, in order to challenge Ext.P5 memo dated 05.11.2016 and claiming **WP(C).No. 37781 of 2016** **19** promotion to the post of Peon in the 1[st] respondent District Co-operative Bank. The petitioners shall file ARC's before the Co-operative Arbitration Court, Kozhikode within two weeks from the date of receipt of a certified copy of this judgment. If any such ARC's are filed, _status quo_ as on today in respect of the post held by the respective petitioners, on the strength of the interim order granted by this Court on 21.12.2016, shall continue till the disposal of the respective ARC's. **Sd/-** ## **ANIL K.NARENDRAN,JUDGE** AV/31/1 **WP(C).No. 37781 of 2016** **20** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SENIORITY LIST OF EMPLOYEES OF THE 1ST RESPONDENT AS ON 01.4.2015. EXHIBIT P2 TRUE COPY OF THE LETTER BEARING NO. CR P2225/2016 DATED 10.8.2016 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC 31751/2016.** **EXHIBIT P4 TRUE COPY OF THE LETTER BEARING NO.E.M(1) 47567/16 DATED 05.11.2016.** **EXHIBIT P5 TRUE COPY OF THE MEMO BEARING NO. B/2016-17 DATED 05.11.2016. EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS BEARING NO.B/57/2016-17 DATED 02.01.2017 ISSUED BY THE GENREAL MANAGER OF THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE GO(MS)NO.79/86/CO-OP DATED 30.09.1986 EXHIBIT P8 TRUE COPY OF THE GO(MS) NO.63/89/CO-OP DATED 18.12.1989 EXHIBIT P9 TRUE COPY OF THE REVISED SERVICE REGULATION OF THE 1ST RESPONDENT** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R5(a) COPY OF THE COMMUNICATION NO.CRP/412/2011 DATED 10.6.2011 ISSUED BY THE 10TH RESPONDENT EXHIBIT R5(b) COPY OF THE REPRESENTATION DATED 01.12.2016 SUBMITTED BEFORE THE 10TH RESPONDENT.**