IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No. 19483 of 2005(T) -------------------------- PETITIONER(S): --------------- T.P.SAITH MOHAMMED(RETIRED SECRETARY, EAST ERNAD SERVICE CO-OPERATIVE BANK LTD.), PERIMKULAM, EDAKKARA P.O., NILAMPUR. BY ADV. SRI.P.K.VIJAYAMOHANAN RESPONDENT(S): --------------- 1. THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM-695 001. 2. THE EAST ERNAD SERVICE CO-OPERATIVE BANK LTD. NO.D.1946, EDAKAKARA P.O., NILAMBUR, REP. BY ITS SECRETARY. ADDL.3. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MANJERI, MALAPPURAM. (ADDL.R3 IMPLEADED AS PER ORDER DT.11.10.08 ON I.A.NO.13867/06) R1 BY ADV. SRI.P.N.MOHANAN, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.19483/05. PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE DEMAND NOTICE NO.MPM/0058/PA DATED 31.1.2005 ADDRESSED TO THE 2ND REPSONDENT. EXT.P2: TRUE COPY OF THE PENSION APPLICATION OF THE PETITIONER SHOWING THE RELEVANT ENTRIES DULY COUNTERSIGNED BY THE CHIEF EXECUTIVE OF THE BANK SHOWING THE PENSION. EXT.P3: TRUE COPY OF THE COMMUNICATION NO.N.3621/02/L.DIS. DATED 26.3.2003 FROM THE ASSISTANT REGISTRAR ADDRESSED TO THE 2ND RESPONDENT RETURNING THE PENSION APPLICATION OF THE PETITIONER. EXT.P4: TRUE COPY OF THE JUDGMENT DATED 8.11.2004 IN W.P(C).8996/04 OF THIS HON'BLE COURT. EXT.P5: TRUE COPY OF THE PENSION SANCSTION ORDER VIDE PROCEEDINGS NO.PB.PPO/164/MPM DATED 26.2.2005. EXT.P6: TRUE COPY OF THE RESOLUTION DATED 6.5.2000 OF THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF THE PAY FIXATION STATEMENT DATED 6.5.2000. EXT.P8: TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF PAY OF THE PETITIONER AND THE PENSION CONTRIBUTION. EXT.P9: TRUE COPY OF THE PENSION CALCULATION BY THE 1ST RESPONDENT PENSION BOARD. RESPONDENT'S EXHIBITS: EXT.R1(a): TRUE COPY OF THE LETTER ISSUED TO SECRETARY OF THE SECOND RESPONDENT BANK DATED 24.1.2005. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.19483 OF 2005 ------------------------------------------- Dated this the 1st day of January, 2009 JUDGMENT The petitioner retired from the service of the second respondent bank on 31.12.2002. The Assistant Registrar of Co- operative Societies took the stand that the bank was re-classified as Class III with effect from 3.10.1998 and hence, the petitioner's salary had to be re-fixed with effect from that date. The classification has, according to the Assistant Registrar, changed the society from Class II to Class III. 2. That stand of the Co-operation Department was not countenanced by this Court in Ext.P4 judgment, wherein, it was held that the petitioner was drawing salary as if the bank had Class II status and he had also made pension contribution accordingly. This Court found that there was no audit objection or other embargo at any point of time to the drawal of emoluments by the petitioner. It is also noticed by this Court WPC.19483/05 Page numbers that there was no departmental proceedings regarding re- classification. Accordingly, the decision of the Assistant Registrar was quashed and he was directed to countersign the pension application and forward it. 3. However, later, the first respondent Pension Board has issued Ext.R1(a) to the Secretary of the bank, stating that the fixation of the salary of the petitioner with effect from 1.4.1999 has not been approved by the competent authority in accordance with G.O(P) No.47/00/Co-op. dated 22.3.2000. On the basis of that defect, the pension payments in accordance with the legitimate entitlement in terms of the Class II status is yet to be released, taking into consideration the pension contribution. The question of putting an executive order against the petitioner does not arise at this point of time because Ext.P4 judgment was rendered with the Pension Board, the Assistant Registrar and the employer bank on the array and there is a clear declaration thereon that the petitioner is entitled to calculation and disbursement of his pension, treating that he was working in the bank which had Class II status. This is the effect of the WPC.19483/05 Page numbers declaration and direction contained in Ext.P4 judgment. Therefore, this writ petition is only to succeed. 4. In the result, the petitioner's monthly pension shall be reckoned on the basis of the average salary drawn by him for the last 10 months of his clarifying service and revised pension shall be reckoned and paid to him in accordance with law, at the earliest. The necessary contribution for this purpose shall be demanded by the Pension Board from the employer. However, the pension shall be disbursed without awaiting such payment of contribution since it will be open to the Pension Board to enforce distress action even to recover the contribution. Payments due to the petitioner following this judgment shall be released within an outer limit of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above directions. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.1/1.