HONEYMOL K.U v. KUNNUKARA SERVICE CO-OPERATIVE BANK LTD; THE CO-OPERATIVE SERVICE EXAMINATION BOARD; THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 3RD DAY OF FEBRUARY 2014/14TH MAGHA, 1935** ## **WP(C).No. 602 of 2014 (A)** ## **------------------------------------** ## **PETITIONER:** ## **-------------------** **HONEYMOL K.U, KUNNATHPARAMBIL HOUSE, ALWAYE DESOM, ERNAKULAM.** ## **BY ADV. SRI.P.P.JACOB.** ## **RESPONDENTS:** **-----------------------** **1. KUNNUKARA SERVICE CO-OPERATIVE BANK LTD. NO. 827, KUNNUKARA P.O., KUNNUKARA, ERNAKULAM, PIN- 683 524, REPRESENTED BY ITS SECRETARY.** **2. THE CO-OPERATIVE SERVICE EXAMINATION BOARD, THIRUVANANTHAPURAM, PIN - 695 001, REPRESENTED BY ITS SECRETARY.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), ERNAKULAM, CIVIL STATION, B2-BLOCK, 5TH FLOOR, KAKKANADU, KOCHI, PIN - 682 030.** **R1 BY ADV. SRI.VIJ AI MATHEWS, R2 BY SMT.RASHMI. K.V., S.C, R3 BY GOVERNMENT PLEADER SRI. JOSEPH GEORGE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.602/2014-A:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P-1: TRUE PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE FIRST RESPONDENT DATED 30.11.2012.** - **EXT.P-2: TRUE PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE ERNAKULAM DISTRICT GOVERNMENT SERVANTS HOUSING - CO-OPERATIVE SOCIETY LTD.NO.E.321 DATED 26.11.2013.** - **EXT.P-3: TRUE PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 17.12.2013.** - **EXT.P-4: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FIRST - RESPONDENT DATED 20.12.2013.** - **EXT.P-5: TRUE PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 26.12.2013.** - **EXT.P-6: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT DATED 31.12.2013.** - **EXT.P-7: TRUE PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DATED 3.1.2014.** - **EXT.P-7(A): TRUE PHOTOCOPY OF THE JUDGEMENT IN W.P.(C).NO.10350/2012 DATED 27.4.2012.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No.602 of 2014** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** **Dated this the 3[rd] day of February, 2014** ## **J U D G M E N T** The petitioner was a junior Clerk with the first respondent, who on her own volition applied to the post of Secretary in the Ernakulam District Government Servants Housing Co-operative Society Ltd. No. E 321. She was successful and she was appointed as per Ext.P2 order dated 26.11.2013. She resigned from the post of Junior Clerk in the first respondent and joined the post of Secretary in the above mentioned Society, continued there for eight days and filed an application for re-employment as Junior Clerk in the first respondent. The petitioner in the above writ petition is aggrieved by the rejection of such application by Ext.P6 on the ground that she had a lien in the post, from which she resigned. WPC.602/2014 : 2 : 2. The learned counsel for the petitioner would rely on the application submitted for being relieved from the post of Junior Clerk, Ext.P3 and the decision taken by the Bank to accept such application by Ext.P4. The petitioner contends that she had a lien in the post, which she was entitled to retain till such time she was confirmed in the post to which she had applied for and joined after being relieved from the first respondent bank. The learned counsel for the petitioner would also rely on a decision of the Hon'ble Supreme Court in **Maddanappa v. Chandramma (AIR 1965 SC 1812)** to contend that the Bank having accepted her application is estopped from declining the valid exercise of lien, retained in the post. The learned counsel for the first respondent, however, relies on an unreported judgment of this Court in W.P(C)34465/2011 dated 2.1.2012 to WPC.602/2014 : 3 : contend that the facts in the said decision are similar and the law stated is applicable on all fours to the instant case too. 3. This Court has to consider first whether there was a lien validly created in the post on the petitioner being relieved and whether the claim of estoppel can be successfully urged against the first respondent. It is to be primarily noticed that there is no stipulation either pointed out from the bye-laws of the Society or from the Kerala Co-operative Societies Act, as to the entitlement of an employee to retain lien in a post, on an employee moving out by way of resignation, for better prospects of employment in another organisation. 4. The learned counsel would refer to Rule 196 and contend that the “other Act” referred to in the said Rule would take in the Kerala State and WPC.602/2014 : 4 : Subordinate Service Rules, 1955 (for brevity KS&SSR) the adoption of the provisions of which are made by the Co-operative Societies intermittently to regulate the employment of its employees. That, according to this Court, is as vague a submission as that can be made on the provisions, especially when there is nothing to indicate that the KS&SSR are applicable to the first respondent Society. 5. Reference in this context is apposite to the unreported judgment placed by the 1[st] respondent. That was a case in which the petitioner therein joined as a Clerk/Cashier in a Co-operative Bank and later accepted appointment as a Junior Clerk/Auditor in the Co-operative Department. For reasons best known to the petitioner therein, she sought for re-appointment as Clerk/Cashier from which post she was relieved, on the contention that as per Rule 8 of Part I of WPC.602/2014 : 5 : KS&SSR, an employee is permitted to maintain lien on the post from which she has been relieved for taking up other employment, till such employee is confirmed in the other post. This Court specifically referred to the contention of the petitioner therein, based on KS&SSR, as also a decision of a Full Bench of this Court to hold that neither the rule in the former nor the dictum in the latter would be applicable to the Societies. It was also found that there was no specific reference to any provision of law which enables the petitioner to seek repatriation to an employment from which she had voluntarily resigned. 6. This Court is of the opinion that the facts are identical in the present case too. As was noticed, there is no provision pointed out, which would enable the petitioner seeking resignation to seek WPC.602/2014 : 6 : appointment in a post in another establishment, to maintain lien and to seek repatriation even till confirmation is obtained in the other post. The reference made to Ext.P3 is on the ground that she had specifically sought for retaining a lien, when seeking to be relieved. The petitioner also has a contention that what she sought for was not resignation but only for being relieved from the post. There can be no such distinction and the prayer to be relieved from the post in which she was working in the 1[st] respondent bank, was to accept the appointment order received from another society; and that in effect is a resignation. Further, in Ext.P4, there is no reference to the lien sought for and the order passed is only with respect to acceptance of the resignation of the petitioner and her being relieved from the post she occupied in the 1[st] respondent; to WPC.602/2014 : 7 : join the post of Secretary in the other society. 7. The petitioner being unable to point out any provision by which she could seek a lien in the post cannot also contend that the 1[st] respondent Bank is estopped from refusing her repatriation to the post of junior Clerk. Estoppel as has been found by the Hon'ble Supreme Court, has to be determined on the particular conduct of the party to understand whether such conduct would amount to an estoppel, especially since, a finding on that aspect could not travel beyond the provisions of Section 115 of the Evidence Act. This Court finds that no valid claim of estoppel can be made by the petitioner against the first respondent Bank since there is no provision enabling the petitioner to seek for a lien nor is even such request seen considered or granted by Ext.P4. There is nothing in the conduct of the 1[st] respondent Bank, to WPC.602/2014 : 8 : construe the same as justifying an inference of estoppel. The resignation of the petitioner was voluntary, obviously to join another employment and cannot be said to have been actuated by any consent from the 1[st] respondent Bank to repatriate her at an early or distant future date. The petitioner acted on her own volition. In such circumstance the petitioner is found to have absolutely no claim to be repatriated to the first respondent Bank and she is held to have not retained any lien on the post from which she resigned. Writ petition is dismissed. No costs. ## Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge