IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(C).No. 16953 of 2011(T) -------------------------- PETITIONER(S): --------------- 1. PURUSHOTHAMAN.K., (RETIRED ASSISTANT SECRETARY, S.L.PURAM SERVICE CO-OPERATIVE BANK LTD NO.A64, S.L.PURAM SERVICE CO-OPERATIVE BANK LTD. NO.A64, S.L.PURAM P.O.),RESIDING AT PUTHUPPARAMBIL HOUSE, KOMALAPURAM, EAST OF GURUPURAM, AVALUKUNNU P.O., ALAPPUZHA-688 006. 2. SUGUNAN.K., (RETIRED HEAD CLERK, S.L.PURAM SERVICE CO-OPERATIVE BANK LTD.NO.A64, S.L.PURAM P.O.), RESIDING AT PALATHINKAL, S.L.PURAM P.O., ALAPPUZHA-688 523. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENT(S): --------------- 1. THE KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD, P.B.NO.85, KALA NIVAS,T.C.NO.27/156 157, CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM, PIN 695001, REPRESENTED BY ITS ADDITIONAL REGISTRAR/SECRETARY. 2. S.L.PURAM SERVICE CO-OPERATIVE BANK LTD. NO.A64, S.L.PURAM P.O., PIN 688 523, ALAPPUZHA DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.V.MOHANAN, SC FOR FIRST RESPONDENT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.16953 OF 2011 EXT.P1 TRUE COPY OF THE PENSION PAYMENT ORDER NO.525/ALP OF THE FIRST PETITIONER. EXT.P2 TRUE COPY OF THE PENSION PAYMENT ORDER NO.526/ALP OF THE 2ND PETITIONER. EXT.P3 TRUE COPY OF THE LETTER NO.1034/07-08 DATED 20.11.07. EXT.P4 TRUE COPY OF THE LETTER NO.PB/EM/ADMN./5306/ALP DATED 26.12.2007 OF THE FIRST RESPONDENT INFORMED THE BANK. EXT.P5 TRUE COPY OF THE STATEMENT FOR THE REMITTANCE OF PENSION FUND CONTRIBUTION IN FORM NO.4 EXT.P6 TRUE COPY OF THE PAY SLIP NO.8016 DATED 31.7.2009. EXT.P7 TRUE COPY OF THE REPRESENTATION DATED NIL FILED BY THE FIRST PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P8 TRUE COPY OF THE REPRESENTATION DATED NIL FILED BY THE 2ND PETITIONERs BEFORE THE FIRST RESPONDENT. EXT.P9 TRUE COPY OF THE LETTER NO.PB/PPO/525/ALP DATED 18.5.2011 OF THE FIRST RESPONDENT. //TRUE COPY// P.A. TO JUDGE. “C.R.” P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.16953 of 2011 ------------------------------- Dated this the 23rd day of June, 2011 J U D G M E N T The short question that arises for consideration in this writ petition is whether the employees of a co-operative society who joined the Contributory Provident Fund established by the employer society in terms of section 61 of the Kerala Co-operative Societies Act, 1969 read with rule 58 of the Kerala Co-operative Societies Rules, long before the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994 was introduced, are entitled to have their service prior to the date on which they joined the Contributory Provident Fund reckoned for the purpose of computing the of length of qualifying service for the purpose of determining the pension payable to them. The brief facts of the case are as follows. 2. The petitioners are former employees of the second respondent bank. They entered service on 6.5.1981 and 27.7.1981 respectively. The petitioners joined the Contributory Provident Fund established by the second respondent bank under section 61 of the Kerala Co-operative Societies Act, 1969 read with rule 58 of the Kerala Co-operative Societies Rules, 1969 on 1.5.1982 and 1.10.1983 respectively, the dates on which their probation in the entry post was W.P.(C) No.16953 of 2011 2 declared as satisfactorily completed. While the petitioners were in service, the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994 (hereinafter referred to as 'the Pension Scheme' for short) was introduced and it came into force with effect from 3.6.1993. Thereafter, the employer's share of contribution made by the second respondent to the Contributory Provident Fund was transferred to the Kerala State Co-operative Employees Pension Board (hereinafter referred to as 'the Pension Board' for short) constituted under the Pension Scheme in terms of Paragraph 39 thereof. The first petitioner retired from service on 30.11.2010 while he was working as Assistant Secretary and the second petitioner retired from service on 31.12.2010 while he was working as Head Clerk. Upon retirement, by Exts.P1 and P2 pension payment orders, the petitioners were sanctioned pension under the Pension Scheme. For the purpose of computing the pension payable to them, the length of qualifying service was reckoned only with effect from 1.5.1982 and 1.10.1983 respectively, the dates on which their probation in the entry post was declared as satisfactorily completed and they became members of the Contributory Provident Fund. 3. Before the petitioners retired from service, the second respondent bank sent Ext.P3 letter dated 20.11.2007 to the Secretary W.P.(C) No.16953 of 2011 3 of the Pension Board requesting the Pension Board to reckon the period during which the 9 employees named therein including the petitioners were on probation, as qualifying service for computation of pension. Along with the said letter, copies of the resolutions adopted by the Board of Directors in respect of each of the 9 employees were enclosed. It was also stated that the Contributory Provident Fund was established in the bank on 1.6.1967. The Pension Board in turn sent Ext.P4 letter dated 26.12.2007 in reply wherein inter alia it was mentioned that the contribution relating to the period of probation can also be calculated and remitted. It is stated that accordingly on 31.7.2009 the second respondent bank remitted the proportionate share of employer's contribution for the period during which the petitioners and the other 7 employees were on probation along with interest. It is further stated that though the second respondent bank had thus remitted the proportionate share of employer's contribution in respect of the petitioners and others, upon retirement, the period during which they were on probation was not reckoned as qualifying service for the grant of pension and therefore, the petitioners submitted Exts.P7 and P8 representations to the Secretary of the Pension Board requesting the Board to reckon the period during which they were on probation as service qualifying for the grant of pension and to re-fix the pension. By Ext.P9 letter dated 18.5.2011, the W.P.(C) No.16953 of 2011 4 Board informed the first petitioner that his request cannot be granted and that his qualifying service has been properly fixed. Hence this writ petition seeking the following reliefs:- i) call for the records leading to Exts.P1, P2 and P9 and quash Exts.P1 and P2 to the extent by them the petitioner are not sanctioned monthly pension treating the period of their probation as qualifying service and Ext.P9 in full by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii) declare that petitioners are entitled to pension treating the period of their probation also as qualifying service. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to re-compute the pension of the petitioners, treating 27.7.1981 and 6.5.1981 respectively as their dates of entry in service and disburse the arrears within a time limit to be fixed by this Hon'ble Court. 4. The main contention raised by the petitioners which was reiterated by the learned counsel appearing for the petitioners during the course of arguments is that under the third proviso to clause (1)(a) of paragraph 19 of the Pension Scheme, the period during which the petitioners were on probation is also liable to be reckoned as qualifying service for pension, if the proportionate share of employer's contribution together with interest is credited to the Pension Scheme. In the instant case, the second respondent bank has already remitted the proportionate share of employer's W.P.(C) No.16953 of 2011 5 contribution together with interest with the Pension Board and therefore the Board was bound to reckon the period during which the petitioners were on probation as qualifying service for pension, it is contended. 5. I have considered the submissions made at the Bar by the learned counsel appearing for the petitioners. The fact that the petitioners became members of the Contributory Provident Fund only with effect from 1.5.1982 and 1.10.1983 respectively is not in dispute. The fact that their probation in the entry post was declared satisfactorily completed only with effect from the said dates is also not in dispute. The short question that arises for consideration in this writ petition is whether on the terms of paragraph 19 of the Pension Scheme, the petitioners are entitled to have their service during the period of probation and prior to their enrolment in the Contributory Provident Fund reckoned for the purpose of computing the length of qualifying service. Paragraph 19 of the Pension Scheme reads as follows:- 19. Qualifying Service:- Qualifying service for granting pension under the Scheme shall be- (1)(a) in the case of an employee who was in the service of a society on the date of application of this Scheme to that society the length of service commencing from the date of joining the Contributory Provident Fund: Provided that the qualifying service shall be limited to the period for which the employer's contribution towards the Provident Fund has been fully paid by the Society in W.P.(C) No.16953 of 2011 6 respect of that employee. Provided further that where the employee was a Subscriber to any pre-existing Provident Fund Scheme implemented in that Society and contribution made thereon has been transferred to the Pension Fund, such period will also qualify for pension. Provided also that an employee who was on probation and on whose behalf the Contributory Provident Fund contribution has not been remitted at the time of implementation of the scheme, such period of probation shall also qualify for pension, if proportionate employers' contribution together with interest thereon has been credited to the Pension Fund. Provided also that in the case of an employee who was in the service of a society coming under the purview of functional Registrars as on the date of application of this Scheme to that society, the length of service shall commence from the date from which the society resolves to contribute the amount towards Pension Fund in respect of each of the employees, at the time of enrolment in the Pension Scheme. (b)in the case of an employee who has entered into service of a society on or after the date of application of this Scheme to that society, the service from the date of entry into service. (2) The service of an employee of a society in another society shall be treated as qualifying service, provided the other society has transferred to the Pension Fund the employer's contribution paid to the Provident Fund by the society in respect of that employee for the period the employee was in the service of that other society, or the employee has refunded to the Pension Fund the amount of employer's contribution in the Provident Fund, if any, received by him from that other society. (3) The period spent on leave except leave without allowances shall be counted for qualifying service. Provided that in the case of employees who were on leave without allowance and elected as President or Chairman of any Local Self Government Institutions, such period shall be treated as qualifying service, if the pension contribution with interest thereof in respect of the employee has been fully remitted by the society for such period. W.P.(C) No.16953 of 2011 7 (4) The period spent on training by an employee shall be treated as qualifying service. (5) The period under suspension of such extent of that period as declared by the competent authority to be counted shall he treated as qualifying service. (6) Any period of break in service and service prior to 18 years and beyond 58 years shall not be counted for reckoning qualifying service. (emphasis supplied) 6. Clause (1)(a) of paragraph 19 stipulates that in the case of an employee who was in the service of a society on the date of application of the Scheme to that society, the length of service commencing from the date of joining the Contributory Provident Fund shall be the qualifying service for the purpose of grant of pension. The first proviso however stipulates that the qualifying service shall be limited to the period for which the employer's contribution towards the provident fund has been fully paid by the society in respect of that employee. The Pension Scheme came into force with effect from 3.6.1993. The petitioners entered service in the second respondent bank long before that date. Therefore, in accordance with the stipulations contained in clause (1)(a) of paragraph 19 of the Pension Scheme, the length of service which the petitioners had commencing from the date of joining the Contributory Provident Fund alone can be treated as service qualifying for pension. Even in Ext.P3 letter, the second respondent bank had no case that it had remitted the employer's share of contribution in the Contributory Provident Fund W.P.(C) No.16953 of 2011 8 for any period prior to the date on which the probation of the petitioners was declared as satisfactorily completed, before the Pension Scheme was introduced. 7. Then the only question is whether the third proviso to clause (1)(a) of paragraph 19 of the Pension Scheme applies to the petitioners. The third proviso to clause (1)(a) of paragraph 19 of the Pension Scheme stipulates that in the case of an employee who was on probation and on whose behalf the Contributory Provident Fund contribution has not been remitted at the time of implementation of the scheme, such period of probation shall also qualify for pension, if the proportionate employers' contribution together with interest thereon has been credited to the Pension Fund. Clause 1A of paragraph 39 of the Pension Scheme discloses that date of implementation of the Pension Scheme was 14.3.1995. From the words 'at the time of implementation of the scheme' occurring in the third proviso to clause (1)(a) of paragraph 19 of the Pension Scheme, it is evident that the third proviso applies only to those employees who were on probation at the time of implementation of the scheme, viz., 14.3.1995 and on whose behalf the Contributory Provident Fund contribution had not been remitted at the time time of implementation of the scheme. In other words, the third proviso applies only to those employees who were probationers at the time W.P.(C) No.16953 of 2011 9 when the Pension Scheme was implemented, viz., on 14.3.1995. The petitioners entered service on 6.5.1981 and 27.7.1981 respectively and their probation was declared satisfactorily completed with effect from 1.5.1982 and 1.10.1983 respectively. They became members of the Contributory Provident Fund established by the second respondent bank only on the said dates. The employer's share of contribution to the Contributory Provident Fund in respect of the petitioners with the interest accrued thereon was transferred to the Pension Board in December, 1995 i.e., after 14.3.1995. Therefore, it cannot be said that the petitioners were on probation on 14.3.1995 when the Pension Scheme was implemented or that the Contributory Provident Fund contribution in respect of the petitioners had not been transferred to the Pension Fund upon its implementation. If that be so, the mere fact that the second respondent bank voluntarily paid the proportionate share of employer's contribution to the Contributory Provident Fund in relation to the period during which the petitioners were on probation together with interest will not in my opinion entitle the petitioners or the second respondent bank to contend that as the stipulation in the third proviso to clause (1)(a) of paragraph 19 of the Pension Scheme regarding payment has been complied with, the petitioners are entitled to reckon the period during which they were on probation, as qualifying service for the grant of pension. As the W.P.(C) No.16953 of 2011 10 petitioners were admittedly not on probation on 14.3.1995, the third proviso to clause (1)(a) of Paragraph 19 has no application to them. The stipulation in the third proviso can apply only if the three conditions stipulated therein, viz., (1) the employee was on probation on the date of implementation of the Pension Scheme (2) the Contributory Provident Fund contribution had not been remitted at the time of implementation of the Pension Scheme, and (3) the proportionate employer's contribution together with interest is credited to the Pension Fund; are satisfied. 8. The petitioners were admittedly not on probation on the date of implementation of the Pension Scheme. The employer's share of contribution standing to the credit of the petitioners in the Contributory Provident Fund established by the second respondent society with the interest accrued thereon was transferred to the Pension Board in December, 1995 upon implementation of the Pension Scheme. Therefore, the petitioners do not satisfy two out of the three conditions for the applicability of the third proviso. As the first two conditions for the applicability of the third proviso have not been satisfied, the mere fact that the third stipulation was satisfied will not entitle the petitioners to contend that the third proviso to clause (1)(a) of Paragraph 19 applies to them. A learned single Judge of this Court has in Sukumaran.N. v. Kerala State Co- W.P.(C) No.16953 of 2011 11 operative Employees Pension Board, Tvm. and another (2010 (4) KHC 859) held, after an elaborate analysis of the relevant provisions of the Pension Scheme, that going by clause 19 read with clause 39 of the Pension Scheme, the relevant date for computing the length of qualifying service is the date on which the employee joined the Contributory Provident Fund. It was held that in cases where an employee had joined the Contributory Provident Fund before the Pension Scheme was introduced, the employee cannot contend that because of the remittance of the employer's share of contribution to the Contributory Provident Fund, for a period prior to the date of joining the Contributory Provident Fund, on a date after the coming into force of the Pension Scheme, he will be entitled to compute the length of qualifying service from a date anterior in point of time to his joining the Contributory Provident Fund. In the instant case, the petitioners became members of the Contributory Provident Fund on 1.5.1982 and 1.10.1983, long before the Pension Scheme was even thought of. The Contributory Provident Fund scheme was introduced in the second respondent Bank with effect from 1.6.1967. In the light of the principles laid down by this Court in Sukumaran.N. v. Kerala State Co-operative Employees Pension Board, Tvm. and another (supra) the case set out by the petitioners that with the remittance of the employer's share of contribution to the Contributory W.P.(C) No.16953 of 2011 12 Provident Fund for the period prior to 1.5.1982 and 1.10.1983 with the Pension Board, on a subsequent date after the commencement of the Pension Scheme, they became entitled to compute the length of qualifying service for the purpose of pension from a date anterior in point of time to the dates on which they joined the Contributory Provident Fund, cannot be sustained. The petitioners are not in my opinion, entitled to reckon the period during which they were on probation for the purpose of computing the length of qualifying service. I am therefore of the considered opinion that the stand taken by the Pension Board in Ext.P9 letter cannot be assailed. In the view that I have taken, the Pension Board cannot retain with it the excess amount, if any, remitted by the second respondent bank in respect of the petitioners. The Pension Board will necessarily have to refund the said amount to the second respondent bank. For the reasons stated above, I hold that there is no merit in the writ petition. The writ petition fails and is dismissed. P.N. RAVINDRAN, JUDGE. nj.