all the petitions These writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the surcharge order Nos.3,4 and 5/2003-2004 dated 21.6.2004 respectively of the second respondent made under Section 87 of the Tamil Nadu Coop. Societies Act, 1983 and to quash the same insofar as the petitioner is concerned.
For Petitioner : Mr.S.Venkataraman For Respondents : Mr.M.S.Palanisamy for R1 Mr.R.Neelakantan, GA for RR2 and 3
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COMMON ORDER Heard both sides. The same petitioner has filed all the three writ petitions.
2.All the writ petitions have challenged the orders of the second respondent, who was the Deputy Registrar of Co-operative Societies, Tiruchendur made under Section 87 of the Tamil Nadu Co-op. Societies Act, 1983, surcharging the petitioner for certain liabilities towards the first respondent Cooperative Society.
3.The first order is made in Surcharge order No.3/2003-2004, dated 21.6.2004 and liability of the petitioner was fixed on several heads. The liability was also fixed on the petitioner (who was the then Special Officer) along with the Cashier, Writer and Peon as well as the former President of the Board of Directors. Liability was also fixed jointly and severally on the then Secretary of the Society. During the pendency of the proceedings, he had passed away. In the first order, the total liability payable due to surcharge proceedings came to Rs.46,04,705/-.
4.The second writ petition challenges the proceedings in Surcharge order No.4/2003-2004, dated 21.6.2004, in which joint and several liabilities were fixed against all concerned including the petitioner. The total liability in the proceedings came to Rs.21,19,625/-. In the third writ petition, the challenge is to the proceedings in Surcharge order No.5/2003-2004, dated 21.6.2004 and the total liability of all concerned including the petitioner came to Rs.5,89,989/-.
5.As against the final order passed under Section 87 of the Tamil Nadu Cooperative Societies Act, the petitioner has a remedy by way of Appeal to the Cooperative Tribunal under Section 152 of the Tamil Nadu Cooperative Societies Act, 1983. The Tribunal is presided by a Senior District Judge and he has a right to go into both questions of law and facts. There is also no condition of pre-deposit in filing such appeals. The petitioner for various reasons had not moved the Tribunal as contemplated under the Act and has chosen to challenge the same in these proceedings initiated under
Article 226 of the Constitution.
6.In paragraph 8 of the affidavits filed in support of the three writ petitions, the petitioner had stated that the appeal remedy provided is not efficacious and alternate in such a situation, since the impugned orders were without jurisdiction, opposed to principles of natural justice, abuse of power and on the face of it biased.
7.The above writ petitions were admitted on 26.11.2004 and the petitioner had the benefit of an unconditional interim stay granted in all the three writ petitions.
8.Though on behalf of the first respondent Co-operative Society, vacate stay petitions were filed immediately thereafter in WVMP Nos.1952, 1946 and 1953 of 2005 respectively, the matters were not taken up for reasons not explained. Subsequently, the very same Society has filed vacate stay applications again in WVMP Nos.42 to 44 of 2009 for vacating the interim orders. Thus, the matters were listed and arguments were heard.
9.In paragraph 7 of the counter affidavit filed in support of the vacate stay applications, dated 11.7.2005, the second respondent had stated that the petitioner ought to have filed appeals and the averments made in paragraph 8 of the affidavits in the writ petitions cannot be accepted. The writ petitions are liable to be rejected on the sole ground of not availing the alternative remedy.
10.In a common counter affidavit, dated 27.4.2009 filed in support of the fresh vacate stay applications, the very same contentions were also raised. Apart from the surcharge proceedings, it was also stated that a charge memo was also framed against the petitioner initiating disciplinary proceedings and a criminal case is also pending before the Judicial Magistrate Court No.2, Tirunelveli.
11.Mr.S.Venkataraman, learned counsel appearing for the petitioner relied upon the following decisions in support of his contentions.
a)1996 II MLJ 69 (P.Venkatachalam (deceased) and others Vs. The Special Tribunal for Co-operative Cases, Madras and others).
b)1978 (1) MLJ 284 (S.Venkataraman Vs. The Deputy Registrar of Co-operative Societies, Thanjavur and others).
c)2001 (1) SCC 182 (Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant and others).
d)2003 AIHC 19 (Lankala Koderu Co-operative Rural Bank Ltd. Vs. Ungarala Pullaiah Naidu and another)
12.The petitioner also made an attack against the conduct of the enquiry and submitted that the petitioner was not responsible for the huge liability fastened on him. At this stage, this court is not inclined to go into the merits of his contentions.
13.The contention raised by the petitioner that the alternative remedy is not efficacious cannot be accepted. In fact, The alternative remedy by way of an appeal under Section 152 of the Act is the only efficacious remedy available for the petitioner. The petitioner ought to have moved the Tribunal before filing the writ petitions under
Article 226 of the Constitution. In fact, several disputed question of facts are involved. The petitioner had also made personal attack on the enquiry officer, who is the third respondent. One of the contention was that the impugned orders are stage-managed and even before the petitioner could attend the enquiry, the orders were made ready. For this purpose, a statement made in the counter affidavit read in isolation was pressed into service. This Court is not inclined to go into the allegations as the said question is again a disputed question of fact which can be decided only in an Appeal provided under the Act itself.
14.The counsel for the petitioner contended that once the writ petitions were admitted, that too as early as five years ago, the same cannot be dismissed at the time of final hearing on the ground of alternative remedy. The concept of alternative remedy is only a self imposed restriction and the petitioner should not be non-suited at this stage. In fact, in the present case, the respondents have filed counter affidavits in the vacate stay petitions as early as 2005 and it was not listed.
15.In this context, it is necessary to refer to a judgment of the Supreme Court in State of U.P. v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti reported in (2008) 12 SCC 675. The Supreme Court had rejected the theory that the writ petition after admission cannot be dismissed on the ground of alternative remedy. It is necessary to refer to the following passages found in paragraphs 37 and 38, which reads as follows:
"37. We have given most anxious and thoughtful consideration to the rival contentions of the parties. So far as preliminary objection raised by the Corporation before the High Court is concerned, in our considered view, the same was well founded and ought to have been upheld. It was urged before the High Court on behalf of the Corporation and the State Government that the writ petition was premature inasmuch as no retrenchment had been affected. Several disputed questions of fact were involved in the petition. If the contention of the Samiti was that there was illegal closure of undertaking or there was non-payment of wages by the employer, appropriate proceedings could have been initiated under industrial law. In fact, one of the Judges of the Division Bench upheld the contention and observed that the employees could have claimed closure compensation under Section 25-FFF of the Act or could have approached prescribed authority under the Payment of Wages Act relying upon Section 33-C(2) of the Act or Section 6-H(2) of the U.P. Industrial Disputes Act. The other Single Judge of the Division Bench, however, held that the writ petition had been entertained and interim orders were also passed. Relying upon Suresh Chandra Tewari1, the learned Judge held that the petition cannot be dismissed on the ground of alternative remedy if the same has been entertained and interim order has been passed. (emphasis supplied)
38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari1 that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p.331), it is stated that petition cannot be rejected on the ground of availability of alternative remedy of filing appeal. But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case1, AIR p. 331) 2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed. (emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under
Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner.
16.In the very same judgment, the Supreme Court also held that when there is disputed questions of fact, the same should not be entertained in a writ petition under
Article 226 of the Constitution and parties must be allowed to avail the statutory remedy provided under the relevant law. In this context, it is necessary to refer to the following passages found in paragraphs 41,50,51 and 53, which may be usefully extracted below:
"41. Now, whether such action could or could not have been taken or whether the action was or was not in consonance with law could be decided on the basis of evidence to be adduced by the parties. Normally, when such disputed questions of fact come up for consideration and are required to be answered, appropriate forum would not be a writ court but a Labour Court or an Industrial Tribunal which has jurisdiction to go into the controversy. On the basis of evidence led by the parties, the court/Tribunal would record a finding of fact and reach an appropriate conclusion. Even on that ground, therefore, the High Court was not justified in allowing the petition and in granting relief.
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50. In our considered view, however, all such actions could be examined by an appropriate court/tribunal under the industrial law and not by a writ court exercising power of judicial review under
Article 226 of the Constitution. If the impugned action of the Corporation of retrenchment of several employees is not in consonance with law, the employees are certainly entitled to relief from an appropriate authority.
51. If any action is taken which is arbitrary, unreasonable or otherwise not in consonance with the provisions of law, such authority or court/tribunal is bound to consider it and legal and legitimate relief can always be granted keeping in view the evidence before it and considering statutory provisions in vogue. Unfortunately, the High Court did not consider all these aspects and issued a writ of mandamus which should not have been done. Hence, the order passed and directions issued by the High Court deserve to be set aside.
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53. Since we are of the view that one of the Judges of the Division Bench of the High Court which decided the matter at the initial stage was right in relegating the petitioners to avail of alternative remedy under the industrial law and as we hold that the High Court should not have entertained the petition and decided the matter on merits, we clarify that though the writ petition filed by the petitioners stands dismissed, it is open to the employees to approach an appropriate court/tribunal in accordance with law and to raise all contentions available to them. It is equally open to the Corporation and the State authorities to defend and support the action taken by them. As and when such a course is adopted by the employees, the court/tribunal will decide it strictly in accordance with law without being influenced by the fact that the writ petition filed by the writ petitioners is dismissed by this Court.
17.It will not be out of place to refer to the judgment of this Court in G.Pannerselvam and others Vs. Deputy Registrar of Co-operative Socieites, Dharmapuri and others reported in 2009 (2) MLJ 901, wherein this Court had elaborately dealt with similar contentions in paragraphs 31 to 33. Number of decisions of the Supreme Court were also referred to by R.Banumathi, J. In paragraph 34, this Court had observed as follows:
"34.Merely because writ petition was ordered to be admitted, it cannot be contended that this Court has to necessarily go into the merits of the matter. In view of the alternative remedy available by way of statutory appeal under Section 152 of the Act, all the writ petitions are liable to be dismissed as not maintainable."
18.The above said case was also confirmed by a Division Bench of this Court presided by A.K.Ganguly, C.J. (as he then was) in A.Balaraman and others Vs. Deputy Registrar of Co-operative Societies, Cheyyar, Thiruvannamalai District and others reported in 2009 (3) MLJ 1032.
19.In the light of the above, all the three writ petitions will stand dismissed. However, there will be no order as to costs. In view of the dismissal of the writ petitions, all the miscellaneous petitions will also stand closed.
20.The dismissal of the writ petitions will not disentitle the petitioner from availing such remedies that are open to him under law.
vvk Note to Office:
The Registry is directed to return the original of the impugned orders to the petitioner after substituting the same with the photostate copy.
To
1.The 0.556 Manappadu Catholic Coop Urban Credit Society, Manappadu, Tuticorin District.
2.The Deputy Registrar of Coop Societies, Office of the Deputy Registrar of Coop Societies, 5, East Car Street, Thiruchendur.
3.The Additional Registrar of Coop Societies, Kilpauk, Chennai 10