Holding

The Supreme Court quashed the High Court’s order, holding that disputed questions of fact regarding the workers’ service tenure must be decided by the appropriate labour authority under the Industrial Disputes Act, and the writ jurisdiction should not be exercised where an effective alternative remedy exists.

Summary

The Ernakulam Regional Cooperative Milk Producers Union Ltd. issued a 2011 notification for regular recruitment of Plant Attender, Grade‑III, prompting several workers to claim they were casual labourers who had served over 240 days in the preceding year and thus were entitled to regularisation under the Industrial Disputes Act, 1947. The workers filed writ petitions under Article 226 of the Constitution, bypassing the statutory remedy under the ID Act, and the Kerala High Court directed the Society to prepare a list of casual workers for regularisation. On appeal, the Supreme Court held that the questions of fact regarding the workers' service tenure were disputed and should be decided by the appropriate labour forum, not by a writ court. The Court emphasized that when an effective alternative remedy exists, the writ jurisdiction is discretionary and should not be exercised unless exceptional circumstances arise. Consequently, the Supreme Court set aside the High Court’s order, granted the workers liberty to pursue remedies under the ID Act, and stayed any disturbance of their service for six months. The appeals were allowed and disposed of with these directions.

Issues considered

The High Court's direction to the cooperative society to prepare a list of casual labourers for regularisation was justified under Article 226.
Whether the workers were entitled to permanent employment under the Industrial Disputes Act, 1947 based on their period of service.
Whether the writ court should entertain the petition when an alternative statutory remedy under the ID Act was available.
Whether the cooperative society, as a private entity, is amenable to judicial review under Article 12 of the Constitution.

Legislation cited

Industrial Disputes Act, 1947

Subjects

Judicial ReviewWritDiscretionary RemedyAlternative RemedyExtraordinary JurisdictionStatutory RemediesIndustrial Disputes ActRegularisationCooperative Society

Judgment

[2024] 1 S.C.R. 1235 : 2024 INSC 230

Ernakulam Regional Cooperative Milk Producers
Union Ltd. Etc.
v.
Nithu & Ors. Etc.
(Civil Appeals No. 1455 - 1459 of 2024)
With
(Civil Appeals No. 1460 - 1461 of 2024)
With
(Civil Appeal No. 1462 of 2024)
31 January 2024
[Hima Kohli and Ahsanuddin Amanullah, JJ.]

Issue for Consideration
The appellant, a Cooperative Society, had issued a notification
dated 29.01.2011 inviting applications for regular recruitment to,
inter alia, the post of Plant Attender, Grade-III. The Respondents
challenged the notification before the High Court of Kerala and
prayed, inter alia, for their regularization on the post of Plant
Attenders. The Respondents, admittedly, did not avail the remedy
under the Industrial Disputes Act, 1947 (ID Act) but directly invoked
Article 226 of the Constitution of India and filed a writ petition
before the High Court. The appellant-Society had pleaded, before
the High Court, inter alia, that the nominees did not have any
right of permanent employment, and even otherwise, none of the
Respondents had worked for over 200 days in a calendar year
which disentitled them from any claim of permanent employment.
However, the appellant was directed by the High Court to prepare
a list of casual labourers from amongst the Respondents and
consider their claims for regularization ; Whether the High Court
was justified in directing the appellant to consider the Respondents’
claims for regularisation.

Headnotes
Constitution of India – Art.226 – Industrial Disputes Act, 1947
– Appeal against common judgment of the High Court of
Kerala dated 09.01.2018 – Appellant was directed to prepare
a list of casual labourers from amongst the Respondent
and consider their claims for regularization in terms of
State of Karnataka and Others v. Umadevi (2006) 4 SCC 1 –
1236 [2024] 1 S.C.R.

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Respondents’ claimed before the High Court that they were
working as casual labourers on contract basis with the
appellant-Society for several years; engaged continuously
for a period of 60 days and then on rotational basis; all of
them were in continuous service for a period of over 240
days in a period of 12 calendar months; and ought to be
treated as permanent workers under the provisions of ID Act;
and that Appellant-Society is an organization covered under
the provisions of the ID Act – Remedy under the ID Act not
invoked by the Respondents – During pendency of conciliation
proceedings before the District Labour, instead of seeking
remedies under the ID Act, Respondents continued to press
the writ petition filed by them – Respondents admittedly did
not invoke the provisions of the ID Act after the conciliation
proceedings had failed – Did not seek a reference of the
dispute to the Competent authority – Submissions of the
Appellant that Respondents were engaged purely on a casual
basis; nominated from amongst the members of the Apex
Cooperative Society and that Terms and conditions of the
Circulars made it clear that the nominees would not have any
right of permanent employment and further that none of the
Respondents had worked for over 200 days in a calendar year
and therefore not entitled to claim permanent employment.
Held: 1. All questions fall in the realm of disputed questions of fact
– Would have required evidence to be lead and proper adjudication
before an appropriate authority which would have been a remedy
under the ID Act- Disputed questions of facts go to the very root of
the matter – Judgment dated 09th January, 2018 which is quashed
and set aside – Liberty granted to the Respondents to seek their
remedies under the ID Act – Respondents continuing in service
under the appellant-Society shall not be disturbed for a period
of six months to enable them to seek appropriate legal recourse
under the ID Act. [Paras 12, 21-24]
2. Powers of judicial review can always be exercised by a writ
Court under Article 226 of the Constitution of India but wherever
there are disputed questions of facts that need adjudication, it
is best left to the competent forum to adjudicate the same by
examining the evidence brought on record before any findings can
be returned- Writ is a discretionary remedy; High Court to refuse
grant of any writ if the aggrieved party can have an adequate or
[2024] 1 S.C.R. 1237

Ernakulam Regional Cooperative Milk Producers
Union Ltd. Etc. v. Nithu & Ors. Etc.

suitable remedy elsewhere unless the party makes out a strong
case that there exist convincing grounds to invoke its extraordinary
jurisdiction- When there is a hierarchy of appeals provided under
the statute, a party ought to exhaust the statutory remedies before
resorting to approaching a writ court. [Paras 15, 17, 18]

Case Law Cited
Gazula Dasaratha Rama Rao v. State of Andhra
Pradesh and Others [1961] 2 SCR 931 : AIR 1961 SC
564; Yogender Pal Singh and Others v. Union of India
and Others [1987] 2 SCR 49 : (1987) 1 SCC 631; G.
Veerappa Pillai v. Raman & Raman Ltd. and Others
[1952] 1 SCR 583 : (1952) 1 SCC 334 : AIR 1952 SC
192; C.A. Abraham v. ITO and Another [1961] 2 SCR
765 : AIR 1961 SC 609; Titaghur Paper Mills Co. Ltd.
and Another v. State of Orissa and Others [1983] 2
SCR 743 : (1983) 2 SCC 433 : 1983 SCC (Tax) 131 :
AIR 1983 SC 603; Whirlpool Corporation v. Registrar
of Trade Marks, Mumbai and Others [1998] Supp. 2
SCR 359 : (1998) 8 SCC 1 : AIR 1999 SC 22; Punjab
National Bank v. O.C. Krishnan [2001] Supp. 1 SCR
466 : (2001) 6 SCC 569; Radha Krishan Industries v.
State of Himachal Pradesh and Others [2021] 3 SCR
406 : (2021) 6 SCC 771 – relied on.
State of Karnataka and Others v. Umadevi [2006] 3 SCR
953 : (2006) 4 SCC 1; K.S. Rashid and Son v. Income
Tax Investigation Commission and Another [1954] 1
SCR 738 : AIR 1954 SC 207; Sangram Singh v. Election
Tribunal [1955] 2 SCR 1 : AIR 1955 SC 425; Union of
India v. T.R. Varma [1958] 1 SCR 499 : AIR 1957 SC
882; State of U.P. v. Mohd. Nooh [1958] 1 SCR 595 :
AIR 1958 SC 86; K.S.Venkatraman and Co. (P) Ltd.
v. State of Madras [1966] 2 SCR 229 : AIR 1966 SC
1089; U.P. State Spinning Co. Ltd. v. R.S. Pandey &
Another [2005] Supp. 3 SCR 603 : (2005) 8 SCC 264;
Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and Others
(2003) 2 SCC 107 – referred to.

List of Acts
Industrial Disputes Act, 1947.
1238 [2024] 1 S.C.R.

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List of Keywords
Judicial Review; Writ; Discretionary Remedy; Alternative Remedy;
Extraordinary Jurisdiction; Statutory Remedies.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1455-1459 of
2024
From the Judgment and Order dated 09.01.2018 of the High Court
of Kerala at Ernakulam in WA Nos.2484, 2532, 2569, 2613 and 2614
of 2017
With
Civil Appeal Nos.1460-1461 And 1462 of 2024
Appearances for Parties
Chander Uday Singh, Sr. Adv., E. M. S. Anam, Advs. for the Appellants.
Kaleeswaram Raj, Ms. Thulasi K. Raj, Ms. Aparna Menon, Suvidutt
M. S., C. K. Sasi, Ms. Meena K. Poulose, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Order
1. Leave granted.
2. The appellant, a Cooperative Society has filed the present appeals
being aggrieved by the common judgment dated 09th January, 2018
passed by the High Court of Kerala at Ernakulam in writ appeals1
preferred by it against the common judgment dated 11th August,
20172 passed by the learned Single Judge of the High Court. By the
said judgment, the learned Single Judge has directed the Managing
Director of the appellant-Society to prepare a list of casual labourers
from amongst the writ petitioners as on the date of the judgement and
forward it to the Director, Dairy Development Department to consider
their claims for regularization in terms of the judgement of this Court
in the case of State of Karnataka and Others v. Umadevi 3.

1 Writ Appeals No.2484, 2532, 2564, 2569, 2578, 2612, 2613, 2614/2017
2 Writ Petitions No.12126, 12353, 12354, 13469, 13998, 15931, 20085, 20848/2011
3 [2006] 3 SCR 953 : (2006) 4 SCC 1
[2024] 1 S.C.R. 1239

Ernakulam Regional Cooperative Milk Producers
Union Ltd. Etc. v. Nithu & Ors. Etc.

4. The appellant-Society took a specific plea, both in the writ petitions
as also before the Appellate Court that it is Cooperative Society and
not a State or any other authority, as contemplated under Article 12
of the Constitution of India and therefore, is not amenable to judicial
review. On merits, it was submitted that the judgment in Umadevi
(supra) cannot have any application to the facts of the instant case
for the reason that the respondents-writ petitioners were not irregular
appointees but appointed illegally and therefore, not entitled for
regularization.
5. We may note that the respondents-writ petitioners were appointed
temporarily on a daily wage basis in terms of the Circulars dated
15th December, 1992 and 10th December, 2010 which stated in clear
terms that their appointments were made on a temporary basis and
on daily wages on the recommendations by the members of the
Society. Some of the relevant stipulations in the Circular dated 15th
December, 1992 are extracted hereinbelow for ready reference:
“(1) Only persons who are members of the member-
Societies and their dependants will be considered;
(2) Only one person from one member-Society will be
included in the list;
(3) Preference will be given to members of the member-
Societies first and only thereafter dependants will be
considered;
Xxxxxx
(10) Those who are engaged in this manner will not be
given any preference for permanent job.”
6. The Circular dated 10th December, 2010 has elaborated in para 1 that :
“1. Only persons who are members of the member-
Societies and their dependants will be considered
(Dependants means children of member of Society, wife/
husband).”
7. On 29th January, 2011, the appellant-Society issued a Notification
inviting applications for regular recruitment to several posts including
the post of Plant Attender, Grade-III. It is not in dispute that the
nature of work being undertaken by the respondents was that of
1240 [2024] 1 S.C.R.

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Plant Attenders which is the lowest post in that category. Aggrieved
by the aforesaid notification, the respondents filed a writ petition in
the High Court praying inter alia for quashing of the notification and
for issuing directions to the appellant-Society to regularize them on
the post of Plant Attenders in their establishment and further, not
to alter the conditions of their service pending the conciliation of
disputes raised by them.
8. We have specifically inquired from Mr. Kaleeswaram Raj, learned
counsel for the respondents as to whether the respondents had
subsequently invoked the provisions of the Industrial Disputes Act,
19474 after the conciliation proceedings had failed and sought a
reference of their dispute to the Competent authority. He submits that
in view of the exigencies of the situation, where the appellant-Society
had issued a notification inviting applications for appointments to the
subject posts, the respondents were left with no other alternative
but to invoke Article 226 of the Constitution of India and file a writ
petition before the High Court.
9. A perusal of the averments made in the writ petition filed by the
respondents shows that they claimed that they were working as
casual labourers on contract basis with the appellant-Society herein
for the past several years and they claimed that they were engaged
continuously for a period of 60 days and thereafter, engaged for
short intervals for the same work on rotational basis.
10. At the same time, in ground (A) taken by the respondents in the writ
petition they have averred that all of them were in continuous service
for a period of over 240 days in a period of 12 calendar months
and therefore, ought to be treated as permanent workers under the
provisions of ID Act. It has also been asserted that the appellant-
Society herein is an organization covered under the provisions of
the ID Act. Despite that, the respondent did not raise a dispute for
it to be referred for adjudication by the State Government. Instead,
while the conciliation proceedings were still pending before the District
Labour Officer, who has been impleaded as respondent No.11 herein
and the same did not bear any positive result instead of seeking
their remedies under the ID Act, the respondents continued to press
the writ petition filed by them.

4 For short ‘the ID Act’
[2024] 1 S.C.R. 1241

Ernakulam Regional Cooperative Milk Producers
Union Ltd. Etc. v. Nithu & Ors. Etc.

11. Despite a specific plea taken by the appellant-Society in its counter
affidavit filed in response to the writ petition, as pointed out by Mr. C.U.
Singh, learned Senior counsel appearing for the appellant-Society,
that the writ petitioners were engaged purely on a casual basis and
that they were nominated from amongst the members of the Apex
Cooperative Society (APCOS) and the terms and conditions of the
Circulars issued by the appellant-Society had made it abundantly
clear that the nominees would not have any right of permanent
employment, such a plea did not find favour with the High Court.
Further, the appellant-Society had specifically averred in its counter
affidavit that as none of the writ petitioners had worked for over 200
days in a calendar year, even otherwise, they were not entitled to
claim permanent employment.
12. In our opinion, all the aforesaid questions would fall in the realm of
disputed questions of fact that would have required evidence to be
lead and proper assessment and adjudication before an appropriate
authority which in the instant case, even as per the respondents-writ
petitioners, would have been a remedy available under the ID Act.
This aspect seem to have been lost sight of by the learned Single
Judge as also the Division Bench. The learned Single Judge appears
to have got swayed by the judgement in the case of Umadevi (supra)
to hold that the respondents - writ petitioners had put in service for
over two decades and were therefore entitled to be regularized in
terms of the directions issued in the said decision, unmindful of the
fact that the appellant-Society had categorically refuted the plea taken
by the respondents-writ petitioners that they had put in 240 days of
regular service in the past 12 months and instead, had asserted
that they failed to satisfy the criteria laid down in Umadevi (supra)
for purposes of regularization.
13. In such circumstances, the services rendered by the respondents-
writ petitioners could not be treated as irregular and would fall in the
category of illegal appointments without meeting the requisite criteria
for being appointed to the subject post. Moreover, the Circulars
dated 15th December, 1992 and 10th December, 2010, reveal that
the pool of appointees were confined by the appellant-Society
to persons who were members of the Member-Society and their
dependents while excluding all others. This itself runs contrary to
the very spirit of Article 16 of the Constitution of India, as expounded
1242 [2024] 1 S.C.R.

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in Gazula Dasaratha Rama Rao vs. State Of Andhra Pradesh
and Others5 and Yogender Pal Singh and Others vs. Union of
India and Others6.
14. The following observations made in the case of Yogender Pal Singh
(supra) are pertinent:
“16. We should, however, point out at this stage a
fundamental defect in the claim of the appellants, namely,
that Rule 12.14(3) of the Punjab Police Rules, 1934
which authorised the granting of preference in favour of
sons and near relatives of persons serving in the police
service became unconstitutional on the coming into force
of the Constitution. Clauses (1) and (2) of Article 16 of the
Constitution which are material for this case read thus:
“16. (1) There shall be equality of opportunity for
all citizens in matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race,
caste, sex, descent, place of birth, residence or any
of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State.”
17. While it may be permissible to appoint a person who
is the son of a police officer who dies in service or who
is incapacitated while rendering service in the Police
Department, a provision which confers a preferential
right to appointment on the children or wards or other
relatives of the police officers either in service or retired
merely because they happen to be the children or wards
or other relatives of such police officers would be contrary
to Article 16 of the Constitution. Opportunity to get into
public service should be extended to all the citizens
equally and should not be confined to any extent to
the descendants or relatives of a person already in the
service of the State or who has retired from the service.
In Gazula Dasaratha Rama Rao v. State of A.P. [AIR

5 [1961] 2 SCR 931 : AIR 1961 SC 564
6 [1987] 2 SCR 49 : 1987 (1) SCC 631
[2024] 1 S.C.R. 1243

Ernakulam Regional Cooperative Milk Producers
Union Ltd. Etc. v. Nithu & Ors. Etc.

1961 SC 564 : (1961) 2 SCR 931] the question relating
to the constitutional validity of Section 6(1) of the Madras
Hereditary Village Offices Act, 1895 (3 of 1895) came up
for consideration before this Court. That section provided
that where two or more villages or portions thereof were
grouped together or amalgamated so as to form a single
new village or where any village was divided into two or
more villages all the village officers of the class defined in
Section 3, clause (1) of that Act in the villages or portions
of the villages or village amalgamated or divided as
aforesaid would cease to exist and the new offices which
were created for the new village or villages should be
filled up by the Collector by selecting the persons whom
he considered best qualified from among the families of
the last holders of the offices which had been abolished.
This Court held that the said provision which required
the Collector to fill up the said new offices by selecting
persons from among the families of the last holders of
the offices was opposed to Article 16 of the Constitution.
The court observed in that connection at pp. 940-41 and
946-47 thus :
“Article 14 enshrines the fundamental right of
equality before the law or the equal protection
of the laws within the territory of India. It is
available to all, irrespective of whether the
person claiming it is a citizen or not. Article
15 prohibits discrimination on some special
grounds — religion, race, caste, sex, place of
birth or any of them. It is available to citizens
only, but is not restricted to any employment
or office under the State. Article 16 clause (1),
guarantees equality of opportunity for all citizens
in matters relating to employment or appointment
to any office under the State; and clause (2)
prohibits discrimination on certain grounds in
respect of any such employment or appointment.
It would thus appear that Article 14 guarantees
the general right of equality; Articles 15 and
16 are instances of the same right in favour of
1244 [2024] 1 S.C.R.

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citizens in some special circumstances. Article
15 is more general than Article 16, the latter
being confined to matters relating to employment
or appointment to any office under the State.
It is also worthy of note that Article 15 does
not mention ‘descent’ as one of the prohibited
grounds of discrimination, whereas Article 16
does. We do not see any reason why the full
ambit of the fundamental right guaranteed
by Article 16 in the matter of employment or
appointment to any office under the State
should be cut down by a reference to the
provisions in Part XIV of the Constitution
which relate to Services or to provisions in
the earlier Constitution Acts relating to the
same subject.... (pp. 940-41).
There can be no doubt that Section 6(1) of the
Act does embody a principle of discrimination
on the ground of descent only. It says that in
choosing the persons to fill the new offices,
the Collector shall select the persons whom he
may consider the best qualified from among the
families of the last holders of the offices which
have been abolished. This, in our opinion, is
discrimination on the ground of descent only
and is in contravention of Article 16(2) of the
Constitution.” (pp. 946-47)
(emphasis in original)
18. We are of the opinion that the claim made by
the appellants for the relaxation of the Rules in their
cases only because they happen to be the wards or
children or relatives of the police officers has got to
be negatived since their claim is based on “descent”
only, and others will thereby be discriminated against
as they do not happen to be the sons of police
officers. Any preference shown in the matter of public
employment on the grounds of descent only has to be
declared as unconstitutional. The appellants have not
[2024] 1 S.C.R. 1245

Ernakulam Regional Cooperative Milk Producers
Union Ltd. Etc. v. Nithu & Ors. Etc.

shown that they were otherwise eligible to be recruited as
Constables in the absence of the order of relaxation on
which they relied. Hence they cannot succeed.”
(emphasis added)
15. We also take note of the submission made by Mr. Kaleeswaram Raj,
learned counsel for the respondents-writ petitioners that the power
of judicial review cannot be excluded as that is a remedy which
was always available to the respondents-writ petitioners dehors
the equally alternative efficacious remedy available under the ID
Act. It is no doubt true that powers of judicial review can always
be exercised by a writ Court under Article 226 of the Constitution of
India but wherever there are disputed questions of facts that need
adjudication, it is best left to the competent forum to adjudicate the
same by examining the evidence brought on record before any
findings can be returned.
16. There are a line of decisions of this Court relating to entertaining
writ petitions when an alternative remedy is available. Constitution
Benches of this Court have held that Article 226 of the Constitution
of India confers a vide power on the High Courts in matters relating
to issuance of writs (Refer: K.S. Rashid and Son v. Income Tax
Investigation Commission and Another 7, Sangram Singh v.
Election Tribunal 8, Union of India v. T.R. Varma9, State of U.P.
v. Mohd. Nooh10 and K.S.Venkatraman and Co. (P) Ltd. V. State
of Madras11).
17. At the same time the remedy of writ is a discretionary remedy and
the High Court has always the discretion to refuse to grant any writ
if it is satisfied that the aggrieved party can have an adequate or
suitable remedy elsewhere (Refer: U.P State Spinning Co. Ltd. V.
R.S. Pandey & Another12). This discretion is more a rule of self-
imposed restrain than a statutory embargo. In essence, it can be
described as a rule of convenience and discretion. Conversely, even

7 (1954) SCR 738 : AIR 1954 SC 207
8 (1955) 2 SCR 1 : AIR 1955 SC 425
9 (1958) SCR 499 : AIR 1957 SC 882
10 (1958) SCR 595 : AIR 1958 SC 86
11 (1966) 2 SCR 229 : AIR 1966 SC 1089
12 [2005] Supp. 3 SCR 603 : (2005) 8 SCC 264
1246 [2024] 1 S.C.R.

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if there exists an alternative remedy, it is well within the jurisdiction
and the discretion of the High Court to grant relief under Article 226
of the Constitution of India, in some contingencies, as for example,
where the writ petition has been filed for enforcement of any of
the fundamental rights or where there has been a violation of the
principles of natural justice or where the orders or proceedings are
wholly without jurisdiction or further, where the vires of the Act is
under challenge (Refer: Harbanslal Sahnia v. Indian Oil Corpn.
Ltd. and Others13). The limitation imposed on itself by the High
Court is more a rule of good sense.
18. If a party approaches the High court without availing of the alternative
remedy provided under the statute, the High court ought not to
interfere except in circumstances where the party makes out a strong
case that there exist convincing grounds to invoke its extraordinary
jurisdiction. In the very same spirit, this Court has held that when there
is a hierarchy of appeals provided under the statue, a party ought
to exhaust the statutory remedies before resorting to approaching a
writ court. (Refer: G. Veerappa Pillai v. Raman & Raman Ltd. and
Others 14, C.A. Abraham v. ITO and Another15, Titaghur Paper Mills
Co. Ltd. and Another V. State of Orissa and Others16, Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai and Others17
and Punjab National Bank v. O.C. Krishnan18).
19. The rule of alternative remedy came up for discussion in in Whirlpool
Corporation (supra) and it was held thus:
“14. The power to issue prerogative writs under Article
226 of the Constitution is plenary in nature and is not
limited by any other provision of the Constitution. This
power can be exercised by the High Court not only for
issuing writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the enforcement
of any of the Fundamental Rights contained in Part III of
the Constitution but also for “any other purpose.

13 (2003) 2 SCC 107
14 [1952] 1 SCR 583 : (1952) 1 SCC 334 : AIR 1952 SC 192
15 (1961) 2 SCR 765 : AIR 1961 SC 609
16 [1983] 2 SCR 743 : (1983) 2 SCC 433 : 1983 SCC (Tax) 131 : AIR 1983 SC 603
17 [1998] Supp. 2 SCR 359 : (1998) 8 SCC 1 : AIR 1999 SC 22
18 [2001] Supp. 1 SCR 466 : (2001) 6 SCC 569
[2024] 1 S.C.R. 1247

Ernakulam Regional Cooperative Milk Producers
Union Ltd. Etc. v. Nithu & Ors. Etc.

15. Under Article 226 of the Constitution, the High Court,
having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition. But the High
Court has imposed upon itself certain restrictions one
of which is that if an effective and efficacious remedy is
available, the High Court would not normally exercise
its jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a bar
in at least three contingencies, namely, where the writ
petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation
of the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires of
an Act is challenged. There is a plethora of case-law on
this point but to cut down this circle of forensic whirlpool,
we would rely on some old decisions of the evolutionary
era of the constitutional law as they still hold the field”.
20. In Radha Krishan Industries v. State of Himachal Pradesh and
Others19, a matter relating to the interface between citizens and
their businesses with the fiscal administration in the context of the
Himachal Pradesh Goods and Service Tax Act, 2017, where the
High Court dismissed a writ petition filed under Article 226 of the
Constitution of India challenging the orders of provisional attachment
of the property of the assessee by the Commissioner of State Tax and
Excise, this Court had the occasion to discuss the maintainability of
the writ petition before the High Court and summarized the principles
of law in the following words:
“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.

19 [2021] 3 SCR 406 : (2021) 6 SCC 771
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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 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.
28. These principles have been consistently upheld by this
Court in Chand Ratan v. Durga Prasad [Chand Ratan v.
Durga Prasad, (2003) 5 SCC 399] , Babubhai Muljibhai
Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel v.
Nandlal Khodidas Barot, (1974) 2 SCC 706] and Rajasthan
SEB v. Union of India [Rajasthan SEB v. Union of India,
(2008) 5 SCC 632] among other decisions.”
21. In the instant case, the disputed questions of facts go to the very
root of the matter inasmuch as the appellant-Society has questioned
the plea of the respondents-writ petitioners that they have put in 240
days of continuous service in the previous 12 months and would
therefore, be entitled to regularization. This aspect requires evidence
and its evaluation before the proper forum.
[2024] 1 S.C.R. 1249

Ernakulam Regional Cooperative Milk Producers
Union Ltd. Etc. v. Nithu & Ors. Etc.

22. In view of the aforesaid discussion, we are unable to sustain the
impugned judgment dated 09th January, 2018 which is quashed and
set aside. At the same time, liberty is granted to the respondents-
writ petitioners to seek their remedies under the ID Act and have
their disputes adjudicated in accordance with law.
23. It is clarified that those of the respondents-writ petitioners who are
continuing in service under the appellant-Society shall not be disturbed
for a period of six months to enable them to seek appropriate legal
recourse under the ID Act and move an application for stay which
shall be heard and disposed of at the earliest on its own merits.
24. The appeals are allowed and disposed of with the aforesaid directions.

Headnotes prepared by: Result of the case:
Harshit Anand, Hony. Associate Editor Appeals allowed.
(Verified by: Shadan Farasat, Adv.)