IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 WP(C).No. 6226 of 2009(W) -------------------------------------- PETITIONER: ------------------- JACOB GEORGE , AGED 64 YEARS, S/O.GEORGE, RESIDING AT PALLIKKATHOTTIYIL HOUSE, KARIMBAN, MANIPARA P.O, IDUKKI DISTRICT, RETIRED SALESMAN THE KARIMBAN SERVICE CO-OPERATIVE LTD, KARIMBAN. BY ADV. MR.JOICE GEORGE. RESPONDENTS: ------------------------ 1. THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, REPRESENTED BY ITS SECRETARY, TC 25/2596,KALA NIVAS, CHINMAYA LANE, KUNNUMPURAM, THIRUVANANTHAPURAM. 2. THE KARIMBAN SERVICE CO-OPERATIVE BANK LTD.NO.K.414, REP. BY ITS SECRETARY, MANIPARA P.O, KARIMBAN, IDUKKI DISTRICT. R1 BY MR.P.V.MOHANAN, S.C, R2 BY ADV. MR.P.J.JOSEPH, MR.GEORGE MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6226/2009-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 09/11/2005 IN W.P.(C).NO.29576/2005. EXT.P.2: COPY OF THE RESOLUTION NO.6 DTD. 13/02/2006 OF THE R.2. CO-OPERATIVE BANK. EXT.P.3: COPY OF THE RESOLUTION NO.6 DTD. 30/08/2007 OF THE R.2. CO-OPERATIVE BANK. EXT.P.4: COPY OF THE RESOLUTION NO.4 DTD. 02/12/2008 OF THE R.2. CO-OPERATIVE BANK. EXT.P.5: COPY OF THE COMMUNICATION DTD. 26/12/2005 ISSUED BY THE R.1. TO THE R.2. EXT.P.6: COPY OF THE LETTER DTD. 15/07/2006 OF THE R.1. PENSION BOARD. EXT.P.7: COPY OF THE REPRESENTATION DTD. 17/12/2008 SUBMITTED BY THE PETITIONER BEFORE THE R.1. PENSION BOARD. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. K.SURENDRA MOHAN, J ........................................... WP(C).NO. 6226 OF 2009 ............................................ DATED THIS THE 5th DAY OF FEBRUARY, 2010 JUDGMENT The petitioner retired as a Sales man from the service of the second respondent, Co-operative Bank on 30.11.2002. According to the petitioner, he had continuous service from 26.6.1974. During the period of his service, he had been remitting contributions without fail, to the Contributory Pension Scheme of the employees of the Co- operative Society. Therefore, after his retirement, the petitioner approached the respondents for getting his pensionary benefits by filing an application in the prescribed form. However, he was not given his pension in spite of repeated requests. The enquiry of the petitioner revealed that pension was not being paid for the reason that the employer of the petitioner had not remitted their contribution to the first respondent. Therefore, the petitioner requested the second respondent to remit the necessary amounts to the first respondent. As a result of his persistent requests, the second respondent remitted an amount of Rs.2,04,141/- towards the contribution of the petitioner to Wpc 6226/09 2 the Pension Scheme. The said amount was remitted to the first respondent in two instalments on 7.11.2003 and 4.10.2004. The complaint of the petitioner is that in spite of the above amount being remitted, the retirement benefits due to the petitioner have not been paid. Therefore, he has approached this court for necessary directions for the disbursement of his pensionary benefits. 2. The first respondent has filed a counter affidavit stating that the Verification Officer of the first respondent had calculated the Pension Fund Contributions of four employees of the second respondent, Bank including the petitioner after inspecting their service records and have quantified the amount at Rs.7,72,738/-. Though a demand notice was issued to the bank on 8.11.2003, the bank has not remitted the entire amount, till date. Later, though the bank has remitted an amount of Rs.2,04,161/-, the balance amount is still not paid. Consequently, the employees of the bank are not enrolled in the Pension Scheme, which could be done only on remitting the entire amount that was due. Since the employees of the second respondent, Bank including the petitioner, have not been enrolled in the Pension Wpc 6226/09 3 Scheme, the petitioner is not liable to be paid any amount as claimed in the writ petition. 3. The first respondent has also pointed out that the petitioner had earlier approached this court by filing WP(C)No.29576 of 2005 complaining of the delay in sanctioning his pensionary benefits to him. As per judgment dated 9.11.2005, this court had directed the second respondent Bank to make all necessary remittances to the first respondent within a period of one month of the receipt of a copy of the said judgment. The first respondent had also been directed to consider and take a decision on the grievance of the petitioner within one month after remittance of the entire pension fund by the bank. In spite of the direction of this court, it is pointed out that the bank has not remitted the amount due and therefore the benefits of the petitioner could not be paid. Though the Government had reduced the rate of interest charged on the arrears of remittances to the pension fund that were remaining unpaid, the second respondent has not availed the said benefit also to clear the arrears that were due and payable to the first respondent. Therefore, the first respondent prays for dismissal of this writ petition. Wpc 6226/09 4 4. The second respondent, Bank has filed a counter affidavit contending that the bank was not in a position to make the entire payment that was due to be made to the pension fund because of acute financial difficulties. According to the second respondent, the accumulated loss of the second respondent is more than Rupees Two Crores. In spite of its financial difficulties, the bank had paid the entire pension fund contribution due in respect of the petitioner so as to facilitate payment of the retirement benefits due to the petitioner, without delay. Therefore, according to the second respondent, the delay in disbursing the pensionary benefits of the petitioner was not due to any fault on its part. 5. I have heard Adv.Joice George, who appears for the petitioner, Adv.P.V.Mohanan, who appears for the first respondent and Adv.George Mathew, who appears for the second respondent. I have also considered the rival contentions anxiously. 6. It is not disputed that the petitioner is a retired employee of the second respondent and that he is entitled to be paid his retirement benefits under the Contributory Pension Scheme. Clause (iii) of the Wpc 6226/09 5 Kerala Co-operative Societies Self-financing Pension Scheme, 1994 (hereinafter referred to as the Pension Scheme, for short), provides that a pension fund is to be established to which the employees of the Co- operative Societies as well as the employer Co-operative society shall contribute. The employer's contribution is to be 10% of the pay of each of the employees. Clause 38 of the Pension Scheme empowers the first respondent to recover the amounts that are remaining unpaid to the Pension fund by taking recourse to revenue recovery proceedings. Therefore, the first respondent has ample powers to recover the amount of contribution due from the second respondent by initiating revenue recovery proceedings. The omission to resort to such co-ercive steps is not due to any fault on the part of the petitioner. Though the petitioner had been requesting the first respondent to disburse the pensionary benefits due to him, the same was not done. The persons guilty of such inaction are the first and second respondents. The second respondent, Bank has denied to the petitioner, the pensionary benefits due to him by not remitting the amount of contribution due and payable by it. The first respondent also cannot condone the omission of the bank in not Wpc 6226/09 6 remitting the contributions by not initiating revenue recovery proceedings as contemplated by clause 38 of the Scheme. Therefore, it is found that there is no justification for denying to the petitioner, the pensionary benefits that are due to him. 7. In the above circumstances, this writ petition is allowed. The first respondent is directed to disburse the pensionary benefits of the petitioner within a period of one month of the date of receipt of a copy of this judgment. If the second respondent does not remit the contributions, the first respondent shall pay the benefits due to the petitioner and then recover the amount from the second respondent. It is made clear that the disbursement of the pensionary benefits of the petitioner shall not be delayed for the reason that the second respondent has not remitted the amounts due. K.SURENDRA MOHAN, JUDGE lgk