IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 18774 of 2004(I) -------------------------------------- PETITIONER: ------------------- NARAYANAN.K., S/O. BATTIYAN, KOVVAL HOUSE, NEAR RAILWAY STATION, HOSDURG VILLAGE, P.O. KANHANGAD, KASARAGOD DIST., (RETIRED SECRETARY, HOSDURG SERVICE CO-OP. BANK). BY ADV. MR.D.SOMASUNDARAM. RESPONDENTS: ----------------------- 1. THE KERALA STATE CO-OPERATIVE PENSION BOARD, T.C.156/57, AYURVEDA JUNCTION, CHINMAYA LANE, P.B.NO.85, THIRUVANANTHAPURAM-01, REPRESENTED BY ITS SECRETARY. 2. HOSDURG SERVICE CO-OPERATIVE BANK LTD. NO.1068, HOSDURG, P.O. KANHANGAD, KASARAGOD DIST., REPRESENTED BY ITS SECRETARY. R1 BY MR.P.V.MOHANAN, S.C, R2 BY ADV. MR.A.DINESH RAO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18774/2004-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMMUNICATION SENT BY THE R.2. TO THE R.1. DTD. 04/09/2003. EXT.P.2: COPY OF THE ORDER NO. 21/2004 DTD. 17/03/2004. EXT.P.3: COPY OF THE CHART SHOWING THE WORK OF THE INTEREST CHARGED AND DEMAND BY THE BOARD. EXT.P.4: COPY OF THE NOTICE ISSUED BY THE R.2. TO THE PETITIONER DTD. 06/05/2004. EXT.P.5: COPY OF THE STATEMENT SENT BY THE R.2. DTD. NIL. EXT.P.6: COPY OF THE COMMUNICATION NO.CRP.2961/97 DTD 25/08/1998 ISSUED BY THE JOINT REGISTRAR. RESPONDENTS' EXHIBITS: EXT.R2.C: COPY OF THE LETTER DTD. 25/08/98 OF J.R. EXT.R2.D: COPY OF THE LETTER DTD 26/11/2002. EXT.R2.E: COPY OF THE LETTER DTD. 28/08/2003. EXT.R2.F: COPY OF THE FIXED DEPOSIT RECEIPT DTD. 28/08/03. EXT.R2.G: COPY OF THE LETTER DTD. 19/06/04. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRIJAGAN,J. -------------- WP(C)NO. 18774 OF 2004 ---------------------- DATED THIS THE 10TH DAY OF SEPTEMBER 2009 JUDGMENT -------- The Petitioner is the retired Secretary of the 2nd respondent Society which is a Society registered under the Kerala Co-operative Societies Act. He retired on 31-5-1997,after 35 years of service. Prior to his retirement, in 1994,the Govt.of Kerala brought into force the Kerala Co-operative Societies Employees Self Financing Pension Scheme 1994. Although the 2nd respondent Society was liable to take steps to implement the scheme in respect of the employees of the 2nd respondent Society, they did not take any steps in that regard for quite sometime. They implemented the Scheme in the Society only on 22-9-1998. The Petitioner was told that for becoming eligible for pension under the WP(C)NO. 18774 OF 2004 2 Scheme, the Petitioner has to re-fund employer's share of the contributory provident fund received by him under Section 62 of the Kerala Co-operative Societies Act read with Rule 58 of the Kerala Co- operative Societies Rules. Accordingly the Petitioner deposited an amount of Rs. 1,82,198.65/- with the 2nd respondent Society as the employer's contribution with interest thereon payable by him. By Ext.P1 letter dated 4-9-2003, the 2nd respondent addressed the 1st respondent confirming that the Petitioner has deposited the said amount with them and requested the 1st respondent to allot a code number so as to enable the Society to remit the said pension contribution in respect of the Petitioner to the 1st respondent. By Ext.P2 letter dated 17-3-2004 the 1st respondent directed the 2nd respondent Society to pay an amount of Rs.4,89,261/- which is the amount payable by the WP(C)NO. 18774 OF 2004 3 Petitioner for becoming eligible for pension which includes interest on Rs. 1,82,198.65. The Society has not paid that amount. Consequently the Petitioner was not given pension. It is under the above circumstances, the Petitioner has approached this Court seeking the following reliefs: i) writ of Certiorari or appropriate writ, direction or order calling for records leading to Ext.P2 order of 1st respondent and quash the same; ii) writ of mandamus or appropriate writ, direction or order directing the respondents to pay to the Petitioner the pension with effect from his date of retirement without delay; iii) declare that the Petitioner need remit Rs.1,82,199/-with its interest thereon and the Board is not eligible to demand Rs.3,07,062/-towards interest thereon; iv) such other order as deem fit to meet the ends of justice. 2. Counter Affidavits have been filed by both respondents. The 1st respondent's contention is that unless and until the 2nd respondent Society pays the amount covered by Ext.P2, the Pension Board are not WP(C)NO. 18774 OF 2004 4 liable to pay any pension to the Petitioner. The stand of the 2nd respondent in their counter affidavit is that they were prepared to deposit the amount with the 1st respondent eversince the Petitioner deposited the amount on 28-8-2003, but they could not do so only because the 1st respondent did not allot a code number to the 2nd respondent. 3. I have considered the rival contentions in detail. 4. I am of the opinion that the Petitioner has been put to difficulties only because the respondents 1 and 2 have not cared to exercise their powers and comply with the duties cast upon them under law. Admittedly the Petitioner had deposited an amount of Rs.1,82,198.65/-with the Society as required under the proviso to Clause 18(1) of the Scheme on 28-8-2003. It is not because of any fault of him that the Society has not paid WP(C)NO. 18774 OF 2004 5 the amount to the 1st respondent. It is not as if the 1st respondent is without any power to enforce such payment by the 2nd respondent. Clause 38 of the 'Scheme' arms the 1st respondent with more than sufficient powers to enforce such payment. Clause 38 of the 'Scheme' reads thus:- “ If any amount due from a Society to the Pension fund under this Scheme is in arrears, the Secretary or any other officer authorized by him in this behalf and if the Society fails to clear the arrears within time as may be specified in the notice issued thereon, issue a certificate for that amount with interest at the rate of 24% p.a. till date or Rs.500/- whichever is higher, from the date of such notice to the Collector of the District in which the demand arises and the Collector on receipt of such certificate shall proceed to recover the amount with interest in the same manner as arrears of public revenue due on land”. The amount due from the Petitioner as on May 1997 is admitted in Ext.P2 communication issued by the 1strespondent to the 2ndrespondent as Rs.1,82,199/-. WP(C)NO. 18774 OF 2004 6 Their contention is that the Society is liable to pay interest also on that amount at the rate of 24% up to the date of payment, the total of which according to the 1st respondent comes to Rs. 4,89,261/-. I am of the opinion that in so far as Petitioner has deposited certain amount with the 2nd respondent Society on 28-8-2003, if at all he would be liable to pay interest on the principal amount only up to that date. Interest for subsequent period is to be paid by the Society and the Society alone. If the Society did not pay the amount deposited by the Petitioner it was the bounden duty of the 1st respondent to invoke the provisions of Clause 38 of the Scheme and enforce payment of the amount by the Society. The Counsel of the 1st respondent would submit that for remitting the contribution payable by the Petitioner, it was not necessary to allot a code WP(C)NO. 18774 OF 2004 7 number and even without a code number the Society could have deposited the amount with the 1st respondent. But it is not disputed before me that in reply to Ext.P1 letter, the 1st respondent has not cared to inform the 2nd respondent that for depositing the amount no code number is necessary. Instead six months later they simply issued demand notice (Ext.P2). Thereafter instead of taking steps against the Society for enforcing payment as required under Clause 38 of the Scheme, the 1st respondent just sat on it taking the stand that unless and until the Society pays the amount, they will not pay the pension to the Petitioner, which stand of the 1st respondent is not at all in accordance with the provisions of the Scheme. It is the primary responsibility of the 1st respondent to see that each Society pays the contributions payable by it in respect of its employees and also WP(C)NO. 18774 OF 2004 8 to pay pension to eligible employees. Employees do not have any power to force the Society to pay the amount to the 1st respondent. That is why the Pension Board has been clothed with the power to enforce such payment. That being so, I have no doubt in my mind that the 1st respondent failed in their duty to enforce the payment by the Society and to pay pension to the Petitioner. I do not mean that the 2nd respondent Society is not at fault. They are also at fault, in so far as it was their duty to pay the amount deposited by the Petitioner immediately after they received the said amount. Therefore the liability to pay interest after 28-8-2003 is squarely on the 2ndrespondent Society. An employee that too a retired employee may not have any source now to pay such huge amount to the 1st respondent to enable him to get pension. Moreover for all these years after 28-8-2003,the WP(C)NO. 18774 OF 2004 9 2nd respondent Society had the use of Petitioner's money and therefore they are liable any payment of interest on the amount deposited by the Pensioner for pension subsequent to 28-8-2003. 5. In the above circumstances this Writ Petition is allowed as follows:- Within 2 weeks from the date of receipt of copy of this judgment the 1st respondent shall issue a communication to the 2nd respondent giving details of amounts payable in respect of the Petitioner.The 1st respondent shall first calculate the amount due from the Petitioner as on 28-8-2003. The 1st respondent shall then calculate interest due thereafter and direct the 2nd respondent Society to pay the entire amount on receipt of the same. The 2nd respondent Society shall pay the same to the 1st respondent within a further period of 2 weeks from the date of receipt of the communication WP(C)NO. 18774 OF 2004 10 from the 1st respondent. If the 2nd respondent fails to remit the amount the 1st respondent shall take immediate steps to recover the amount from the 2nd respondent Society in exercise of powers vested with them under Clause 38 of the Scheme. The 1st respondent shall not wait till the amount is recovered from the Society to pay the pension to the Petitioner. They shall pay the pension to the Petitioner within one month from the date of receipt of copy of this judgment with arrears. The 2nd respondent Society would be free to recover that portion of the interest up to 28-8-2003 on Rs. 1,82,199/-alone from the Pension amount payable to the Petitioner in reasonable installments.I make it abundantly clear that interest for the period subsequent to the date 28-8-2003 shall be paid by the 2nd respondent Society and the Society alone, and that shall not be recovered from the WP(C)NO. 18774 OF 2004 11 Petitioner. This Writ Petition is disposed of as above. S.SIRIJAGAN JUDGE pkk