Kerala State Cooperative Bank Ltd. , Represented By Its Managing Director v. Mathew C. C. , Son of Chinnappan
2024-08-22
ANIL K.NARENDRAN, P.G.AJITHKUMAR
body2024
DigiLaw.ai
JUDGMENT : (P.G. Ajithkumar, J.) : The judgment dated 22.11.2022 in W.P.(C) No.32957 of 2022 is under challenge. Ext.P4 order of attachment was sought to be quashed. The further relief claimed was a direction to disburse Rs.6,69,450/-, which was held under attachment as per Ext.P4. The learned Single Judge allowed the writ petition. Respondents No. 1 and 2 in the writ petition assail the said judgment in this appeal filed under Section 5(i) of the Kerala High Court Act, 1958. 2. Heard the learned counsel for the appellants, the learned counsel for the 1st respondent and the learned Senior Government Pleader. 3. The 1st respondent retired as the Manager, Yendayar branch of the 1st appellant-Bank on 30.04.2022. His pensionary benefits were withheld by the 1st appellant stating that a huge amount was to be realised from him on account of his dereliction of duty. Hence, he filed W.P.(C) No.15990 of 2021 challenging that order, which was Ext.P6 therein. That writ petition was allowed ordering as follows: “Ext.P6 issued by the 2nd respondent in so far as it imposes preconditions therein for payment and disbursement of terminal benefits of gratuity, welfare fund benefits and leave encashment benefits shall stand quashed. The petitioner shall be entitled to arrears of salary consequent to pay revision effected from 01.04.2017 as per G.O. (MS)No.5/2021/Co-op. dated 09.02.2021. The amounts due to the petitioner shall be disbursed within a period of three months from today. The right of the 1st respondent to initiate proceedings against the petitioner under the provisions of the Co-operative Societies Act and in accordance with law and to recover loss/damages will stand reserved.” 4. In compliance to the said judgment the retiral benefits due to the 1st respondent were credited to his account. Later, the 1st appellant approached the 3rd respondent-Joint Registrar (General), Kottayam seeking an order of attachment before judgment. The Joint Registrar in exercise of his powers under Section 78 of the Kerala Cooperative Societies Act, 1969 (KCS Act) ordered to attach Rs.6,69,450/-from the amount of the retiral benefits of the 1st respondent. Ext.P4 is the said order. 5. The contentions of the 1st respondent in the writ petition were two-fold. Firstly, that the retirement benefits, which comprises gratuity, provident fund, welfare fund benefits, leave encashment benefits etc.
Ext.P4 is the said order. 5. The contentions of the 1st respondent in the writ petition were two-fold. Firstly, that the retirement benefits, which comprises gratuity, provident fund, welfare fund benefits, leave encashment benefits etc. was not liable for attachment and secondly, that the remedy of the 1st appellant was not to attach the retiral benefits, but to resort to the provisions under the Co-operative Societies act for realisation of the amount, if any is due. The contentions were accepted by the learned Single Judge and allowed the writ petition. 6. The learned counsel for the appellants would submit that the Registrar, as the case may be, the Joint Registrar of the Co-operative Societies, is empowered under Section 78 of the KCS Act to order attachment before judgment and the remedy for the person concerned is to challenge such an order by filing objection before that authority. It is also submitted that sufficient appellate and revisional resources are provided under the statute itself and therefore a writ petition in the matter is not maintainable. It is further submitted that the benefits were already disbursed and the money in the account of the 1st respondent was attached wherefore also the writ petition has to fail. 7. The learned counsel for the 1st respondent besides supporting the impugned judgment, refuted the contention that the retiral benefits at the hands of the employee also is amenable to attachment. It is also submitted that no sufficient ground for ordering an attachment has been made out. The learned counsel for the 1st respondent avails assistance to his contentions from the decisions in Govt. Servants Co-op.Society Ltd. v. Sukumaran Nair [ 1986 KLT 1354 ], Radhey Shyam Gupta v. Punjab National Bank and another [ (2009) 1 SCC 376 ] and Mohanan Nair v. Omallur Service Co-operative Bank Ltd. [2022 (3) KLT OnLine 1055]. 8. The contention of the appellants is that the 1st respondent while working as the Branch Manager disbursed various loans without verifying the title of the debtors and ensuring execution of proper documents. The appellants filed arbitration cases, i.e., ARC Nos.548 and 549 of 2021 before the Arbitrator seeking realisaton of amounts of Rs.7,19,725/-and Rs.14,39,450/-respectively. After deducting the value of security available, the balance due would be Rs.6,69,450/-.
The appellants filed arbitration cases, i.e., ARC Nos.548 and 549 of 2021 before the Arbitrator seeking realisaton of amounts of Rs.7,19,725/-and Rs.14,39,450/-respectively. After deducting the value of security available, the balance due would be Rs.6,69,450/-. It was for securing realisation of that amount, the appellants approached the 3rd respondent for an attachment before judgment invoking the provisions of Section 78 of the KCS Act. Under Section 78, the Registrar is empowered to order attachment of the property of the debtor before an award. Section 78 reads as follows: “78. Attachment of property before award or order.-If the Registrar is satisfied on an application, report, inquiry or otherwise that any person with intent to delay or obstruct the enforcement of any order, decision or award that may be made against him under the provisions of this Act- (a) is about to dispose of the whole or any part of his property; or (b) is about to remove the whole or any part of his property from the jurisdiction of the Registrar, the arbitrator or the liquidator, as the case may be,he may, unless adequate security is furnished, by order in writing, direct the attachment of the said property, and such attachment shall have the same effect as if made by a competent civil court.” 9. In Govt. Servants Co-op. Society Ltd. [ 1986 KLT 1354 ] a Division Bench of this Court considered the extent of jurisdiction of the Registrar to order an attachment before judgment. It was held that unless it is shown that the debtor is about to dispose of the whole or any part of his property or is about to remove the whole or part of a property from the jurisdiction of the Registrar/Arbitrator, there cannot be a valid attachment. 10. The contention is that no circumstance envisaged in Section 78 of the KCS Act exists in this case. When the very case of the 1st respondent is that he is entitled to withdraw the amount under attachment for which he has filed the writ petition, it implies that his intention is to appropriate the amount. Therefore, the law laid down in Govt. Servants Co-op. Society Ltd. [ 1986 KLT 1354 ] is not of avail in favour of the 1st respondent. 11.
Therefore, the law laid down in Govt. Servants Co-op. Society Ltd. [ 1986 KLT 1354 ] is not of avail in favour of the 1st respondent. 11. Before we consider whether Rs.6,69,450/-, which was attached as per Ext.P4, is immune from attachment in view of the provisions of Section 10 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, Section 13 of the Payment of Gratuity Act, 1972 and Section 60(1) of the Code of Civil Procedure, 1908, it is apposite to consider the maintainability of the writ petition. 12. When Section 78 of the KCS Act empowers the Registrar/Joint Registrar to order attachment before judgment, Ext.P4 is not an order vitiated by lack of jurisdiction. The appellants filed ARC Nos.548 and 549 of 2021 for realisation of Rs.7,19,725/-and Rs.14,39,450/-respectively. Out of said claim amounts, Rs.6,69,450/-was computed to be the liability of the 1st respondent. Of course, that is only a claim. But when such arbitral proceedings are pending, the appellants are well within their right to seek attachment before award under Section 78 of the KCS Act. The question is, whether a writ petition under Article 226 of the Constitution of India is the appropriate remedy to challenge such an order, Ext.P4. 13. Rule 90 of the Kerala Co-operative Societies Rules, 1969 (KCS Rules) envisages that in the event of an attachment of a property, it is possible for preferring an objection. Once such an objection is preferred, the attaching officer shall decide it on merits. The provisions concerning attachment and sale of the properties in execution of an award are applicable to an attachment before judgment also in view of the provisions of Rule 93 of the KCS Rules. Therefore, the 1st respondent did have remedy under the statute itself to challenge Ext.P4 order. 14. It may also be noted that an order for attachment of a property before judgment under Section 78 is made appealable under Section 83 of the KCS Act. If such an order is rendered by the Registrar by overruling the objection, if any, an appeal lies to the Government and in all other cases to the Registrar. A revision by the Co-operative Appellate Tribunal is also provided under Section 84 of the KCS Act. 15. Thus, sufficient measures to challenge an order of attachment before award issued by a Joint Registrar is provided under the Statute itself.
A revision by the Co-operative Appellate Tribunal is also provided under Section 84 of the KCS Act. 15. Thus, sufficient measures to challenge an order of attachment before award issued by a Joint Registrar is provided under the Statute itself. It is the settled law that when an effective alternative remedy is available, the jurisdiction of this Court under Article 226 of the Constitution of India shall not ordinarily be invoked. In Commissioner of Income Tax v. Chhabil Dass 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. 16. 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 Chhabil Dass Agarwal (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, a writ petition should not be entertained ignoring the statutory dispensation. 17. In Thansingh Nathmal 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 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.
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 of India 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. 18. Retirement benefits such as provident fund, gratuity and pension enjoy exemption from attachment. (See: Mohanan Nair [2022 (3) KLT OnLine 1055]. Such retiral benefits would stand exempted from attachment even when the same has been received by the retiree as held by the Apex Court in Radhey Shyam Gupta [ (2009) 1 SCC 376 ]. The other amounts due to the 1st respondent towards arrears of salary, terminal leave surrender encashment, welfare fund benefits, etc. may not get such statutory immunity. Indisputably, a part of the retiral benefits due to the 1st respondent alone was attached as per Ext.P4. Whether the attached amount includes such exempted sums also is a question of fact to be decided based on the evidence. 19. Aforementioned aspects were not taken into account by the learned Single Judge while rendering the impugned judgment. The 1st respondent ought to have challenged Ext.P4 order before such statutory authority, who could decide the question whether or not the amount is required to be attached and the amount under attachment enjoys such statutory immunity. Accordingly, we find that the impugned judgment is unsustainable in law and liable to be set aside. 20. This writ appeal is allowed. On setting aside the impugned judgment, W.P.(C) No.32957 of 2022 is dismissed. The 1st respondent is relegated to avail the remedies available under the KCS Act and the KCS Rules. His contentions, both factual and legal, are left open.