IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 WA.No. 1617 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.11935/2004 DATED 02/06/2008 .................... APPELLANT/ PETITIONER: -------------------------------------- A.K.SHANMUGHAN, XX/1476, KALAPURAKKAL, PERUMPADAPPU, PALLURUTHY, COCHIN-682 006. BY ADV. SRI.P.N.MOHANAN. RESPONDENTS: ----------------------- 1. THE JOINT REGISTRAR, CO-OPERATIVE SOCIETY, JOINT REGISTRAR OFFICE, ERNAKULAM. 2. CORPORATION OF COCHIN EMPLOYEES CO-OPERATIVE SOCIETY LTD., NO.331, THOPPUMPADY COCHIN, REP. BY ITS SECRETARY 3. THE PRINCIPAL SECRETARY TO GOVERNMENT, CO-OPERATION(C) DEPARTMENT, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER SRI. BENNY GERVACIS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- W.A. Nos.1617 of 2008 --------------------------------------- Dated this the 4th day of August, 2008 Judgment Koshy,J. Appellant, while working as Secretary of the Bank, was suspended from service with effect from 14.10.1999 and finally compulsorily retired by Ext.P3 order dated 14.4.2000 with effect from 14.10.1999, the date of suspension. Contention of the appellant is that during the period when he was suspended pending enquiry, he was not paid subsistence allowance and on that ground the enquiry itself is vitiated. His appeal to the Board as well as final appeal to the Government were rejected as can be seen from Ext.P9 order. When Ext.P9 order was challenged, the learned single Judge directed that the matter has to be placed before the Appellate Tribunal. The contention of the appellant is that there is no point in pursuing this remedy before the Appellate Tribunal as his dispute regarding the dismissal was finally settled by the Government. Before section 69 of the Kerala Co-operative Societies Act was amended, the claimants can only approach the Joint Registrar under section 198 (2) and, thereafter, to the Government. Since he W.A.No.1617/2008 2 has exhausted all the remedies, writ petition is maintainable. The arbitration pending is entirely different. We make it clear that merely because subsistence allowance was not paid, enquiry cannot be set aside on the facts and circumstances of the case. 2. Then the question is whether he was compulsorily retired with effect from the date of original suspension. From the Rules of the society, there is no provision in dismissing the employee retrospectively from the date of suspension, but, at the same time, he is entitled to subsistence allowance for the period of suspension pending enquiry. That is a compulsory obligation. If he is found not guilty, the difference between subsistence allowance and full wages has to be paid. Even if he is found guilty, subsistence allowance paid cannot be taken back. This is a statutory obligation. 3. Then, the next question is whether he is entitled to pension and retiral benefits. He is only compulsorily retired from service. Compulsory retirement means he is allowed to retire on a date prior to the date of superannuation. In such case, he is entitled to all retiral benefits. Petitioner was a member of the Co-operative Societies Pension Scheme, 1994. It is a self-financing pension W.A.No.1617/2008 3 scheme. Eligibility for pension is mentioned in clause 18 of the Co- operative Societies Pension Scheme which is as follows: “18. Eligibility for Pension.-(1) Every employee of a society to which this Scheme applies shall, subject to the other provisions of the Scheme, be eligible for pension under this Scheme; Provided that an employee, who has received the contributory Provident Fund shall be eligible for pension only on the refund of that portion of the employers' contribution in the Contributory Provident Fund together with interest thereon to the Pension Fund before applying for pension. (2) An employee who has been dismissed or removed for misconduct, insolvency or inefficiency shall not be eligible for pension; Provided that the authority to impose such penalty may, recommend to the Board to grant compassionate allowance to the employee so dismissed or removed in deserving cases; Provided further that such compassionate allowance shall not exceed two third of the pension which would have been admissible to him, had he retired on the date of dismissal or removal, as the case may be.” Sub-clause (2) shows that if a person is dismissed or removed for misconduct, insolvency or inefficiency, pension can be denied. In this case, petitioner was not dismissed or removed. Hence, he is entitled to pension. He is only compulsorily retired. He is entitled to pension from the date of compulsory retirement, that is, with effect W.A.No.1617/2008 4 from 14.10.1999. However, he cannot be paid subsistence allowance and pension simulstaneously if the pension amount is less than the subsistence allowance payable for the period 14.10.1999 and 14.4.2000. Even if the above amount is less than the subsistence allowance payable from 14.10.1999 to 14.4.2000, the subsistence allowance payable cannot be withheld and, during this period, full subsistence allowance has to be paid and in no circumstances no further pension need be paid for that period, but, if the pension amount payable is more than the subsistence allowance payable for the period 14.10.1999 to 14.4.2000, the petitioner will be entitled to subsistence allowance and difference between the subsistence allowance and pension payable during the period 14.10.1999 to 14.4.2000. Ext.P11 arbitration case filed by the employer society before the competent arbitrator can be decided independently untrammelled by the observations in the judgment of the learned single Judge as well as in this judgment. We see no ground to interfere with the punishment of cmpulsory retirement imposed with effect from 14.10.1999 by exercise of judicial review as misconducts were proved in a properly constituted domestic enquiry, but, that will not prevent him from getting his pension from the date of compulsory retirement and also W.A.No.1617/2008 5 subsistence allowance. But, he is entitled to get subsistence allowance or pension whichever is more for the period he was under suspension though he was compulsorily retired from the date of suspension pending enquiry and he will not be entitled to both benefits together. The writ appeal is disposed of accordingly. J.B.Koshy Judge K.P.Balachandran Judge vaa W.A.No.1617/2008 6 J.B. KOSHY AND K.P.BALACHANDRAN,JJ. ------------------------------------- W.A. No.1617/2008 ------------------------------------- Judgment Dated:4th August, 2008