IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 WP(C).No. 17409 of 2007(V) -------------------------------------- PETITIONER: ------------------- C.K.SHAJI MOHAN, JR.SUPERVISOR, CHERTHALA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.A-327, CHERTHALA, ALAPPUZHA. BY ADV. SRI.D.SOMASUNDARAM RESPONDENTS: ----------------------- 1. CHERTHALA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.A-327, CHERTHALA, ALAPPUZHA DISTRICT REPRESENTED BY ITS SECRETARY. 2. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, CORPORATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL) ALAPPUZHA. 4. P.N.PHALGUNAN, SIDHARTHA MANDIRAM, PATTANAKKAD P.O. CHERTHALA. R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND R2 & R3 SPL.GOVT.PLEADER SMT.A.G.ANEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17409/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE RESOLUTION 154 DT. 16.5.06. EXT.P2:- COPY OF THE LETTER 1.6.06 ISSUED BY THE SECRETARY OF THE BANK. EXT.P3:- COPY OF THE PROCEEDINGS DT. 16.5.06 OF THE IST RESPONDENT . EXT.P4:- COPY OF THE ORDER NO.CRB.1928/06 DT. 29.6.06 OF THE 3RD RESPONDENT . EXT.P5:- COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P6:- COPY OF THE GOVT. ORDER DT. 25.5.07. EXT.P7:- COPY OF THE ORDER NO.CRB-1928/06 DT. 19.7.06. /TRUE COPY/ P.A. TO JUDGE tss Thottathil B. Radhakrishnan, J. ================================== W.P.(C)No.17409 of 2007 ================================== Dated this the 24th day of March, 2008. JUDGMENT Petitioner, an employee of the first respondent, submitted his resignation on 27-3-2006. That resignation from service was accepted by the committee of the first respondent with effect from 1-4-2006 and he was relieved accordingly. Thereafter, as per Ext.P1, the committee resolved to re-admit him to duty accepting his request to withdraw the resignation, subject to concurrence of the department. By Ext.P4, the Joint Registrar rescinded that resolution. Petitioner's Ext.P5 appeal was dismissed by the Government as per Ext.P6. Thereafter, relying on Ext.P4, Ext.P7 was issued by the Joint Registrar refusing to grant concurrence to the decision of the committee of the society permitting the petitioner to withdraw his resignation. Exts.P4, P6 and P7 are under WPC17409/2007 -:2:- challenge. 2. The plea of the petitioner is that the resignation was submitted by him on 27-3-2006 in a confused state of affairs in connection with his candidature for general election to the State Legislative Assembly and he has no other avocation in life and he found extremely difficult to pull on without any employment. He is 52 years old when he filed this writ petition in June, 2007, going by his affidavit. On law, it is contended and argued on his behalf that Ext.P4 has been issued in excess of authority under Rule 176 of the Kerala Co- operative Societies Rules, 1969, hereinafter referred to as the “Rules”, in as much as no ground is established to rescind the resolution in terms of that rule. 3. Supporting the decision of the committee, the learned counsel for the first respondent argued WPC17409/2007 -:3:- that in the absence of any provision in the Kerala Co-operative Societies Act and Rules or any other enabling provision directly governing the field, the committee of the first respondent took the Kerala Service Rules as a guiding yardstick and adopted the principle contained in the last limb of Clause (d) of Government Decision No.1 occurring under Rule 23 of Part I KSR, which contemplates and provides permission to withdraw the resignation even after it has been accepted and has come into effect, subject only to the condition that the concurrence of the PSC and finance department are required to give the benefit of that limb of the State Government decision. 4. Learned special Government Pleader for Co- operation, on the other hand, argued that the petitioner resigned on 27-3-2006 to contest in the election and such resignation cannot be characterized as one on a mistake of fact and that WPC17409/2007 -:4:- there is no provision in the KCS Act and Rules authorizing the committee of the first respondent society to do what it has done as per Ext.P1. It is argued that, by the acceptance of the resignation, the jural relationship between the employer and the employee had snapped and the exercise undertaken by the society by the issuance of Ext.P1 would result in re-employment without any competition. It is argued that, in the absence of any empowering statutory provision, the resolution, Ext.P1, is against the interest of the society and is illegal and therefore the Registrar was within authority to rescind the same. 5. At the outset, I may deal with the arguments on behalf of the petitioner on the ground that Ext.P4 has been issued without any pre- decisional notice and aopportunity of hearing. The facts and law are not in dispute. The question in hand gained the attention of the Government in an WPC17409/2007 -:5:- appeal and the petitioner was heard by the Government in relation to his appeal against Ext.P4. Therefore, any infirmity of Ext.P4 on account of absence of hearing cannot be considered to further survive, calling for interference under Article 226 of the Constitution of India, solely on that ground. 6. Going by the submissions on both sides, some of the provisions of the laws as are applicable to Government servants, are adopted by the operation of some of the rules among the KCS Rules, thereby making them applicable to servants of Co-operative Societies. The KCS Act and Rules do not prescribe any mode of resignation of employees though they prescribe the mode of resignation of the members of a co-operative society or the members of the committee of a society. The field of resignation of employees of co-operative societies can therefore be treated as WPC17409/2007 -:6:- one which is not occupied in any manner by a form dictated by KCS Act and Rules. Nor is there any notification or circular, which could be treated as a binding direction of the Registrar. 7. In the absence of any law directly governing the field, it is improper to characterize the decision of the co-operative society as illegal, provided, it has acted in fairness and has some guiding yardsticks. Viewed in that angle, the last limb of Clause (d) of the Government Decision No.1 occurring after Rule 23 in Part I KSR provides the managerial wisdom to the society to conclude that the case in hand may require to be dealt with by permitting the petitioner to withdraw his resignation even though that resignation had already taken effect. But, as rightly pointed out by the learned Government Pleader, such an approach is impermissible without the concurrence of the Registrar, because, wherever there is absence of WPC17409/2007 -:7:- provision in the Act, Rules, Circulars, Notifications and Bye-laws, the society cannot act without the permission of the Registrar. As a corollary, it necessarily means that unless such a course is wholly unlawful, it can be taken recourse to with the permission of the Registrar. That it is not wholly unlawful is apparent from the fact that, an examination of the Government Decision would show that, the larger interest of the establishment and of the employee in question will be considered by the employer in permitting the employee to withdraw the resignation which has become final by acceptance. 8. The petitioner had spent 23 years of his career serving the first respondent. He is now 52 years old. No blemish in service has been pointed out, either by the Registrar or by the fourth respondent, at whose instance, the impugned proceedings were triggered. On the whole, it may WPC17409/2007 -:8:- be impossible to hold that the committee of the society acted against the interest of the establishment in drawing up Ext.P1 decision. 9. However, the question of sanction by the Registrar, though necessary, was obviously not appropriately considered while Ext.P7 was issued. I say so because, that decision refusing sanction for the decision contained in Ext.P1 is rendered by the Registrar solely with reference to the fact that Ext.P1 resolution stood rescinded as per Ext.P4. In a way, to issue Ext.P7 after Ext.P4 was to have the cart before the horse. At any rate, before consideration of such issue, it was improper to have issued Ext.P4 rescinding Ext.P1 resolution. Having found that the action taken and the decision rendered by the committee of the society as Ext.P1 resolution cannot be treated as illegal, but on the basis of a fair and rational basis, it has to be left to the Registrar to consider as to whether WPC17409/2007 -:9:- there are any reasons to refuse to sanction the decision. On that ground, Ext.P6 decision of the Government has also to go. Resultantly, Ext.P7 also has to be set aside paving way for the Joint Registrar to consider the decision of the approving and sanctioning of Ext.P1 after hearing the petitioner and the first respondent. The fourth respondent is not represented and no request is made before this Court on his behalf to be heard. 10. In the result, Exts.P4, P6 and P7 are quashed and it is directed that the third respondent Joint Registrar will take up the request of the first respondent for sanction and approval of Ext.P1 resolution. The petitioner and the first respondent shall be offered an opportunity of being heard and decide thereon taking into consideration all relevant facts and factums. Let this be done within an outer limit of one month from the date of receipt of a copy of this judgment. WPC17409/2007 -:10:- 11. Petitioner and the first respondent shall make appearance before the third respondent on 2-4- 2008. Writ petition is allowed accordingly. Thottathil B.Radhakrishnan, Judge. sl. 27-3-2008