IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 OP.No. 2463 of 2002(R) ---------------------- PETITIONER(S): --------------- 1. M.SADASIVAN, (RETIRED GODOWN KEEPER II, (HIGHER GRADE), KERALA STATE WAREHOUSING CORPORATION), "SARASWATHI NIVAS",THEKKUMBHAGOM, NEAR BOYS, HIGH SCHOOL, THRIPUNITHURA. 2. C.G.MANOHARAN (RETIRED ASSISTANT, KERALA STATE WAREHOUSING CORPORATION), "DHANYALAM", ERUMATHALA P.O., KEEZHMAD, ALUVA. 3. K.N.ACHUTHAN PILLAI (RETIRED I GRADE OVEERSEER, KERALA STATE WAREHOUSING CORPORATION), KALLUPILLIL HOUSE, PURAPUZHA P.O.,VIA.VAZHITHALA, IDUKKI DISTRICT. 4. JOSEPH P.JOSEPH(RETIRED SENIOR ASSISTANT MANAGER, KERALA STATE WAREHOUSING CORPORATION), PAZHOOR HOUSE, PARIYARAM P.O., MALLAPPALLY WEST, PATHANAMTHITTA DISTRICT., PIN-689 596. 5. A.K.BABU (RETIRED GODOWN KEEPER HIGHER GRADE,KERALA STATE WAREHOUSING CORPORATION) KAYAMPILLIL HOUSE, PUNNURUNNY, VYTTILA P.O., KOCHI-682 019. 6. V.THOMAS, (RETIRED SENIOR ASSISTANT MANAGER, HIGHER GRADE, KERALA STATE WAREHOUSING CORPORATION), PALAKKODE PUTHEN VEEDU, MANGADU, ELAMANNUR P.O., VIA.ADOOR,PATHANAMTHITTA DISTRICT, PIN-691 524. 7. M.HARIHARAN (RETIRED ELECTRICAL OVERSEER GRADE II HIGHER GRADE, KERALA STATE WAREHOUSING CORPORATION),"HARI NIVAS",MEZHATHUR, P.O.TRITHALA, PALAKKAD DISTRICT,PIN-679 534. 8. V.N.VIKRAMANKUTTY (RETIRED GODOWN KEEPER KERALA STATE WAREHOUSING CORPORATION), "DILLEEP BHAVAN", KALLELIBHAGOM P.O.,NEAR S.W.C., KARUNAGAPPALLY, KOLLAM DISTRICT,PIN-690 546. 9. G.GOPINATHAN NAIR(RETIRED GODOWN KEEPER, (HIGHER GRADE), KERALA STATE WAREHOUSING CORPORATION), APPOZHIL HOUSE, THENNADY, CHIRAYAKOM P.O., THAKAZHI, ALAPPUZHA-688 562. 10. A.P.NALINI(RETIRED ASSISTANT MANAGER, KERALA STATE WAREHOUSING CORPORATION), MANGALATHU MANA, IRINGOLE P.O., PERUMBAVOOR. 11. SANTHA M.KURUP (RETIRED SENIOR ASSISTANT MANAGER (HIGHER GRADE),KERALA STATE WAREHOUSING CORPORATION), THIRUVELATH, THOTTACKATTUKARA,ALUVA. 12. C.V.THOMAS(RETIRED CLASS IV (HIGHER GRADE), KERALA STATE WAREHOUSING CORPORATION), CHIRAYIL HOUSE, K.R.PURAM P.O., CHERTHALA. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.V.VARGHESE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM. 2. KERALA STATE WAREHOUSING CORPORATION, ERNAKULAM, KOCHI-16, REPRESENTED BY ITS MANAGING DIRECTOR. 3. COMMITTEE OF TRUSTEES, THE KERALA STATE WAREHOUSING CORPORATION EMPLOYEES' PENSION AND OTHER RETIREMENT BENEFITS FUND, REPRESENTED BY ITS CHAIRMAN, THE MANAGING DIRECTOR, KERALA STATE WAREHOUSING CORPORATION, ERNAKULAM, KOCHI-16. ADV. SRI.N.D.PREMACHANDRAN FOR R2 GOVERNMENT PLEADER SMT. M.R. SREELATHAFOR R1 SRI.MAJNU KOMATH, SC, K.S.W.C. FOR R.2,3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO. 2463/2002. -------------------------------------------------------------- EXT.P1 TRUE COPY OF STATEMENT SHOWING FIXATION OF PAY OF 1ST PETITIONER. EXT.P2 DO. DO. OF 2ND PETITIONER. EXT.P3 DO. DO. EXT.P4 TRUE COPY OF NOTIFICATION. EXT.P5 KERALA STATE WAREHOUSING CORPN. EMPLOYEES (PENSION AND OTHER RETIREMENT BENEFITS) REGULATIONS, 1998. EXT.P6 REPRESENTATION DT. 18-5-2000. EXT.P7 REPRESENTATION DT. 18-4-2001. EXT.P8 DO DT. 30-5-2001. EXT.P9 DO. DT. 2-6-2001. EXT.P10 JUDGMENT IN O.P. NO. 20111/2001. EXT.P11 LETTER DT. 18-10-2001. EXT.P12 GOVT. ORDER DT. 22-12-1998. EXT.P13 GOVT. ORDER DT. 27-12-1999. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R2(A) GOVT. ORDER DT. 1-2-1996. EXT.R2(B) REPORT ON THE VALUATION OF PENSION SCHEME OF KSWC. EXT.R2(C) REPORT ON THE ACTUARIAL VALUATION OF THE PENSION SCHEME. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 2463 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 9th day of March, 2010. J U D G M E N T The petitioners are employees of the Kerala State Warehousing Corporation. They voiced a grievance regarding calculation of their pension in accordance with Kerala Warehousing Corporation Employees (Pension and Other Retirement Benefits) Regulations, 1998. The crux of the issue involved has been summarised by me in my order dated 22-1-2010, which reads as follows: “The matter was argued at length. The contention of the petitioners is that their pension is liable to be calculated in accordance with Ext.P5 Kerala State Warehousing Corporation Employees (Pension and Other Retirement Benefits) Regulations, 1998. According to them, these regulations have been framed by the Government by virtue of the powers conferred by Section 42 of the Warehousing Corporation Act, 1962 and, therefore, these regulations are statutory in character. Regulations 2 and 6 thereof mandate that pension shall be calculated based on the qualifying service and the emoluments at the time of retirement. “Average emoluments” and “emoluments” are defined in Regulation 2 also. Therefore, according to the petitioners, they are entitled to pension calculated on the basis of the emoluments they were drawing as on the date of their retirement, which is subsequent to the revision of pay with effect from 1.3.1997. But their pension has been calculated on the basis of the pay they were drawing prior to the revision of pay from 1.3.1997. Their contention is that this is illegal and against the Regulations. A counter affidavit has been filed, in which, the stand taken is that the Regulations are only guidelines and not mandatory. It is not disputed before me that if the Regulations are statutory in character, the petitioners are entitled to get their pension computed based on the emoluments they were drawing as on the date of their retirement and not on the basis of the emoluments prior to the pay revision with effect from 1.3.1997. It is also not disputed before me that the pension of the petitioners has already been computed on the basis of the emoluments drawn by them prior to 1.3.1997 and not on the basis of the emoluments, which they were drawing as on the date of their retirement. The learned counsel for respondents 2 and 3 submits that if they are required to pay pension on the basis of the emoluments which the petitioners were drawing as on the date of their retirement, there would not be any money in the pension O.P.. No. 2463/2002 -: 2 :- fund to pay pension to other persons who are retiring. The argument is that if the pension fund is to survive, the Government has to help them by providing funds. Accordingly, the counsel for respondents 2 and 3 submits that they have requested the Government in this regard. He seeks some time to get instructions in the matter.” 2. As far as the question raised by the petitioners is concerned, the respondents could not, with any valid contention, dispute the contention of the petitioners insofar as going by the provisions of the Regulations, which are statutory in character, the members of the fund are entitled to calculation of pension on the basis of the average emoluments they were drawing as on the date of retirement. Therefore, the eligibility of the petitioners for calculation of pension on that basis cannot now be disputed by the respondents. 3. In fact, the the contention raised by the 3rd respondent is that they do not have the funds to pay pension calculated on the basis of the average emoluments as on the date of retirement and they can pay pension only on the basis of the pre-revised emoluments. They would submit that if they are forced to pay pension on the basis of the average emoluments on the date of retirement of the petitioners, they would not be able to pay pension to the employees. According to counsel for respondents 2 and 3, unless the Government bails them out the situation the fund itself has to be closed. But, on that ground, I cannot deny the rights of the petitioners, which are statutory rights. Therefore, I hold that the petitioners are entitled to pension calculated on the basis of their average emoluments, which were being drawn by them as on the date of their retirement. Arrears of pension due to the petitioners on calculating thus, shall be disbursed within six months. 4. The 2nd respondent is owned by the Government. The 3rd respondent is a trustee committee created for administrating the O.P.. No. 2463/2002 -: 3 :- pension fund. I am of opinion that it is for the Government to see that the 2nd respondent administers the fund to the best interest of the employees of the 2nd respondent. Therefore, if respondents 2 and 3 are unable to find funds, it is for the Government to consider the situation and find out a solution for their difficulties in the interest of respondents 2 and 3 and their employees. Accordingly, I direct the Government to take appropriate steps expeditiously to see that this imbroglio is solved appropriately. Sd/- S. Siri Jagan, Judge. Tds/ O.P.. No. 2463/2002 -: 4 :-