IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 8302 of 2009(G) ------------------------------------ PETITIONER(S): ---------------------- CHACKO.T.O, S/O.LATE JOSEPH, THUNDIYIL HOUSE, ERAVIPEROOR, THIRUVALLA, PATHANAMTHITTA (RETIRED BRANCH MANAGER), THIRUVALLA EAST CO-OPERATIVE BANK LTD.NO.3260, OTHARA BRANCH, OTHARA). BY ADV. MR.S.SUBHASH CHAND RESPONDENT(S): -------------------------- 1. KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, TC NO. 27/156, 157, KALANIVAS, CHINMAYA LANE, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE GENERAL MANAGER, THIRUVALLA EAST CO-OPERATIVE BANK LTD.NO. 3260, HEAD OFFICE OF THIRUVALLA EAST CO-OPERATIVE BANK LTD., ERAVIPEROOR, P.B.NO.4, THIRUVALLA. 3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PATHANAMTHITTA. 4. THIRUVALLA EAST CO-OPERATIVE BANK LTD.NO. 3260, HEAD OFFICE OF THIRUVALLA EAST CO-OPERATIVE BANK LTD., ERAVIPEROOR REPRESENTED BY ITS GENERAL MANAGER. BY SPL. GOVT. PLEADER SMT.A.G.ANEETHA BY ADVS.MR.D.SOMASUNDARAM FOR R2 & 4 MR.P.V.MOHANAN,SC,K.ST.CO.OP.EMP.PENSI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.8302/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMON JUDGMENT DT. 4.1.02 PASSED BY THIS HONOURABLE COURT IN WA. NO.1340/01 (D) AND THE CONNECTED WRIT APPEAL BEARING WA NO.2111/2001. P2:- COPY OF THE COMMUNICATION DT. 17.4.02 ISSUED BY RESPONDENT NO.2 BANK TO THE PETITIONER. P2(a):- COPY OF THE PROCEEDINGS DT. 2.7.05 ISSUED BY RESPONDENT NO.2. P3:- COPY OF THE JUDGMENT DT. 19.7.07 PASSED BY THIS HONOURABLE COURT IN WPC. NO.25992/03. P4:- COPY OF THE PENSION DOCKET FILLED UP BY THE PETITIONER. P5:- COPY OF THE ORDER DT. 13.2.09 PASSED BY RESPONDENT NO. 2 BANK. P6:- COPY OF THE REPRESENTATION DT. 2.3.09 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.3. RESPONDENT'S EXHIBITS R1(A):- COPY OF THE CIRCULAR NO.K.R/P.CELL-II/CO-OPERATIVE EXEM/ 2008 DT. 7.11.08. R1(b):- COPY OF THE CIRCULAR NO.1/09 DT. 22.1.09. TRUE COPY P.S. TO JUDGE TSS ANTONY DOMINIC,J. --------------------- W.P.(C).No.8302 OF 2009 ------------------------ Dated this the 21st day of May, 2009. JUDGMENT Petitioner was working as the Branch Manager of the 4th respondent bank. While so, on 10.6.1994, following a theft that occurred in the branch where the petitioner was posted, disciplinary proceedings were initiated against employees including the petitioner and he was placed under suspension. It is stated that on conclusion of the proceedings he was dismissed on 28.8.1996. Appeal and revision filed by him were rejected. Challenging the proceedings O.P.No.1713/2000, was filed by the petitioner, which was allowed by court by judgment dated 20.3.2001 leaving it open t the bank to initiate fresh proceedings. Aggrieved by the judgment writ appeals were filed by the petitioner and the 4th respondent, as W.A.Nos.1340/01 and 2111/01. These writ appeals were disposed of by Ext.P1 common judgment. The relevant portion of which reads as under. WP(c).No.8302/09 2 `“Having regard to the facts of the case and taking into account the views expressed by the Bar, we affirm the judgment of the learned single Judge to the extent it quashes the impugned orders. But we vacate the direction to take a fresh decision in the disciplinary proceedings, since the employees has already retired from service in August, 1998. We feel that interest of justice would be met if a direction is issued to the Bank to pay the petitioner all consequential benefits with fifty per cent of the back wages. We do so, The Bank will pay fifty per cent of the arrears of pay and pay other benefits in full payable by it to the writ petitioner within three months from the date of receipt of a copy of this judgment.” 2. A reading of the operative portion of the judgment shows that the Division Bench gave a quietus to the dispute, by directing that the petitioner be paid 50% of the back wages and WP(c).No.8302/09 3 further ordering that he shall be paid other benefits in full. According to the petitioner in pursuance to the judgment benefits were paid and he refers to Exts.P2 and P2(a). Here, it is to be noticed that it is the case of the petitioner which is also not contradicted, that he has been paid gratuity adopting full salary, as the last drawn wages. 3. He claimed pension from the first respondent and when his claim was not accepted he filed a writ petition before this court as WP(c).No.25992/03. By Ext.P3 judgment, this Court directed the Regional Provident Fund Commissioner to transfer to the Ist respondent the employer's share as far as the petitioner is concerned and the first respondent was directed to take appropriate action for the disbursement of petitioner's pension. Petitioner specifically contends that in pursuance to Ext.P3 judgment referred to above, the first respondent has transferred the contribution and he was issued Ext.P4 Pension docket where the petitioner claimed his full salary as the last drawn salary, to work out his average pay as contemplated in clause 2(c)of the Kerala Co-operative Societies Employees Self-financing Pension Scheme 1994. It would appear that there upon the Bank issued WP(c).No.8302/09 4 Ext.P5 taking the position that since in Ext.P1 judgment this court directed 50% alone to be paid as back wages, the last drawn wages drawn was 50% only and therefore the average amount, has to be quantified on that basis. 4. Thereupon, this writ petition is filed contending mainly, that since this court has directed that apart from the back wages petitioner shall be paid other benefits in full, he is entitled to the pension under the Scheme, reckoning his full salary for the purpose of working out his average pay. A counter affidavit has been filed by respondents 1 to 3. The bank mainly refers to Ext.P1 judgment and submits that since the petitioner has received back wages at 50%, on 31.8.1998.when he attained the age of superannuation, his average pay has to be worked out only on that basis. According to the bank for that reason the stand taken by them in Ext.P5 is perfectly justified. 5. In the light of the above what essentially arises for consideration in this writ petition is whether the petitioner is entitled to have the full wages taken as the basis for reckoning the average pay as contemplated in clause 2(c) of the Scheme referred to above. In my view the petitioner is entitled to succeed WP(c).No.8302/09 5 in the writ petition. 6. A reading of Ext.P1, the common judgment rendered by the Division Bench shows that, though it has restricted back wages at 50% of the amount that was due to the petitioner, in so far as the other benefits are concerned, the Division Bench has specifically directed that the same shall be paid in full. In my view, the direction to pay benefits in full, should take within its fold, the pension that is due to the petitioner also. If that be so, the petitioner is justified in its contention that for working out his pension he is entitled to have full salary adopted as the basis. Secondly the figure shown as his last drawn wages in Ext.P4, the Pension Docket has been accepted as the basis for reckoning last drawn wages for paying gratuity and for further reason also, the stand adopted by the bank in Ext.P5 cannot be upheld. 7. In the counter affidavit filed on behalf of the first respondent although it is not stated that the contribution in respect of the petitioner has not been transferred to it as directed in Ext.P3 judgment, referring to Ext.R1(a), the counsel contends that the employer's contribution transferred is only in respect of the employees on roll as on 30.6.2006. However the submission WP(c).No.8302/09 6 now made is strongly refuted by the petitioner and is fully supported by his pleadings and the directions contained in Ext.P3 judgment. 8. In any case, the first respondent can be called upon to make payment only if the employer's contribution has been transferred to it as the first respondent cannot have any independent liability. In view of this, it is directed that, if as asserted by the petitioner, the contribution in respect of the employer as ordered in Ext.P3 has been transferred to it, the first respondent shall pay pension to the petitioner reckoning his full salary for quantifying his average pay. Pay shall be made, at any rate within 8 weeks of receipt of a copy of the judgment. It is also directed that the bank shall forward Ext.P4 Pension Docket submitted to them to the first respondent, within 2 weeks from the date of production of a copy of the judgment. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.8302/09 7