IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 33813 of 2007(A) -------------------------- PETITIONER: --------------- K. DIVAKARAN, KARUMUTHIL HOUSE, KADANNAMANNA P.O., MALAPPURAM DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: ----------------- 1. THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695001. 2. THE PERINTHALMANNA CO-OPERATIVE- AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.NO.P.505 PERINTHALMANNA-679 322, REPRESENTED BY ITS SECRETARY. ADV. SRI.P.V.MOHANAN,SC,K.ST.CO.OP.EMP.PENSI FOR R1 SRI.P.K.VIJAYAMOHANAN FOR R2 SRI.M.K.DAMODHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.33813/07 A P P E N D I X PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE AWARD DT 28.7.1986 IN ID NO.38/1981 OF THE LABOUR COURT, KOZHIKODE. EXT.P2: TRUE COPY OF THE STATEMENT SHOWING THE TRANSFER OF THE EMPLOYERS' CONTRIBUTION STOOD IN THE CONTRIBUTORY PROVIDENT FUND TOT HE PENSION BOARD UPON COMMENCEMENT OF the PENSION SCHEME. EXT.P3: TRUE COPY OF THE RECOMMENDATION OF THE 2ND RESPONDENT BANK VIDE RESOLUTION NO.10 DT 27.7.2006. EXT.P4: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE CHAIRMAN OF THE PENSION BOARD DT 2.8.2007. EXT.P5: TRUE COPY OF THE REPLY FURNISHED BY THE 1ST RESPONDENT VICE COMMUNICATION NO.PB/CM/85/07 DT 24.9.2007. EXT.P6: TRUE COPY OF THE JUDGMENT DATED 01.08.2003 IN O.P.NO.1062/1996. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 33813 OF 2007 (A) ===================== Dated this the 16th day of July, 2009 J U D G M E N T Petitioner was the Secretary of the 2nd respondent Bank. He commenced service on 5/5/75 and joined Contributory Provident Fund Scheme on 1/5/76. While working, he was placed under suspension on 8/12/78 and was dismissed from service on 29.8.80. An Industrial dispute was raised and in ID No.38/81 before the Labour Court, Kozhikode and the dispute between the management and the workmen was settled. Ext.P1 is the compromise award, para 2 of which reads as under: When the matter came up for evidence on 19/7/1986 a joint statement signed by both parties and their counsel was filed whereby the disputes between the parties had been settled. The terms of the settlement are: (1) The Management agrees to reinstate the worker Shri.K.Divakaran in service as Secretary of the Bank with effect from 18.8.1986. (2) The period from 29.8.1980 (The date of dismissal) to 18.8.1986 (the date of reinstatement) shall be treated as duty for all purposes whatsoever except for payment of full basic wages, Dearness allowance, Bonus, Exgratia Payments, other allowances and eligible leave. (3) It is made clear that the worker Shri.K.Divakaran shall be eligible for continuity of WPC 33813/07 :2 : service and the benefit of all pay revisions during the period of his non employment. (4) Shri.K.Divakaran shall be paid an amount equal to 45% of the amounts which he would have been entitled to draw as Basic Wages and Allowances, if he were employed by the management uninterruptedly during the period of his non employment, as exgratia payment by the management. (5) The amount payable under clause 4 shall be paid by the management in four equal instalments, first instalment being payable on 19th August 1986 and subsequent instalments on or before 19th of the 3 succeeding months. (6) The management agrees to withdraw the claims in ARC 169/83-84 pending before the Assistant Registrar of Co-operative Societies, Perinthalmanna. 2. Accordingly, petitioner was reinstated in service on 18/8/86. Thereafter on attaining the age of superannuation, he retired from service on 30/4/2007. Treating the employee as having rendered continuous service, Bank transferred the CPF contribution to the 1st respondent and also passed Ext.P3 resolution to take steps for disbursement of the pension due. 3. However, 1st respondent took the stand that the period from 9/12/78 to 18/8/86 when the petitioner was suspended and reinstated in service is liable to be excluded from qualifying WPC 33813/07 :3 : service. On that basis, according to the 1st respondent, petitioner had qualifying service of 280 months and his pensionary benefit was quantified at Rs.7,778/-. Accordingly payment was made. 4. Realising that the aforesaid period was excluded from his qualifying service, petitioner took up the matter with the 1st respondent by filing Ext.P4. That was rejected by Ext.P5 communication stating that during the period in question, petitioner did not work or receive salary from the 2nd respondent. It is challenging Ext.P5 this writ petition is filed. 5. Counsel for the petitioner referred me to Ext.P6 judgment of this Court in OP NO.1062/96, which according to him was rendered in identical circumstances. On this basis, it is stated that he is entitled to the relief sought for. 2nd respondent Bank took the position that they have already recommended the case of the petitioner with the 1st respondent to pay him pension reckoning the entire period of service. However, the 1st respondent points out that in view of the provisions contained in Clause 19(5) and (6) of the Pension Scheme, 1994, broken period of service of the petitioner is not liable to be reckoned. They also pointed out the inconsistency between Clause 2 and 3 and Ext.P1 WPC 33813/07 :4 : award and submits that the petitioner is not eligible for the payment claimed. 6. Having considered the submissions made by both sides, I am inclined to think that the petitioner is entitled to succeed. A reading of para 2 of the award extracted above shows that the cumulative effect is that the petitioner should be treated as having rendered continuous service without any break. If that be so, Sub Clause 5 and 6 of clause 19 of the 1994 Pension Scheme can be of no relevance to the case of the petitioner. True, the pension fund is a self generating contributory fund and the amount is paid out of contribution made. In this case, it is seen that contribution has since been transferred and if at all there is any deficit, it is for the 1st respondent to have it recouped from the 2nd respondent. However, the petitioner having rendered continuous service is eligible for full pension reckoning the period 9/12/78 to 18/8/86 as well. Therefore, the writ petition is disposed of directing the 1st respondent to re quantify the pension amount due to the petitioner under Rule 22 reckoning the aforesaid period and disburse the benefit on that basis limiting the pension as provided WPC 33813/07 :5 : in the scheme. This shall be done, as expeditiously as possible, at any rate within two months of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp