IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 25619 of 2008(Y) -------------------------- PETITIONER(S): ------------------ P.A.KURIAKOSE, PUNNAMATTATHIL HOUSE, EDAYAR P.O., KOOTHATTUKULAM, ERNAKULAM DISTRICT. BY ADV. SRI.P.V.BABY SRI.R.KIRAN RESPONDENT(S): ------------------- 1. KOOTHATTUKULAM FARMERS SERVICE CO-OPERATIVE BANK LTD. NO. E 45, KOOTHATTUKULAM POST, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE BOARD OF MANAGEMENT OF THE KOOTHATTUKULAM FARMERS SERVICE CO-OPERATIVE BANK LTD. NO. E 45, KOOTHATTUKULAM POST, ERNAKULAM DIST REPRESENTED BY ITS PRESIDENT. 3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MUVATTUPUZHA. ADV. SRI.O.D.SIVADAS FOR R1 GOVT.PLEADER SRI.K.S.MOHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.25619/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE PHOTOCOPY OF THE JUDGMENT DT 29.8.05 IN OP NO.26491/02. EXT.P2: TRUE PHOTOCOPY OF THE JUDGMENT DT 4.9.2007 IN WA NO.1874/2005 THE GOVERNMENT OF KERALA. EXT.P3: TRUE PHOTOCOPY OF THE LEGAL OPINION DT 22.10.2007. EXT.P4: TRUE PHOTOCOPY OF THE RESOLUTION NO.10 DT 27.2.2008 OF THE BANK. EXT.P5: TRUE PHOTOCOPY OF THE COMMUNICATION DT 15.3.2008 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT. EXT.P6: TRUE PHOTOCOPY OF THE NOTIFICATION DT 12.7.2006 OF THE GOVERNMENT OF KERALA. EXT.P7: TRUE PHOTOCOPY OF THE JUDGMENT DT 17.7.2008 IN WPC NO.21553/2008. EXT.P8: TRUE PHOTOCOPY OF THE APPLICATION DT 12.6.2008 SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR OF THE BANK. EXT.P9: TRUE PHOTOCOPY OF THE APPLICATION DT 12.6.2008 SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR OF THE BANK. EXT.P10: TRUE PHOTOCOPY OF THE NOTICE DT 12.8.2008 ISSUED by the 1ST RESPONDENT. EXT.P11: TRUE PHOTOCOPY OF THE SALARY DRAWN STATEMENT PREPARED BY THE PETITIONER. EXT.P12: TRUE PHOTOCOPY OF THE APPLICATION DT 15.9.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P13: TRUE PHOTOCOPY OF THE OPINION DT NIL OF P.RAVINDRAN, ADVOCATE, ERNAKULAM. WPC NO.25619/2008 -2- EXTS.OF R1 EXT.R1(a): TRUE COPY OF THE EXTRACT OF THE RESOLUTION OF THE BANK DT 15.1.2005. EXT.R1(b): TRUE COPY OF THE EXTRACT OF THE RESOLUTION OF THE BANK DT 30.7.2005. EXT.R1(c): TRUE COPY OF THE ORDER DT 4.8.2005. EXT.R1(d): TRUE COPY OF THE OPINION FORM DT 5.5.2000. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 25619 OF 2008 (Y) ===================== Dated this the 17th day of July, 2009 J U D G M E N T Petitioner joined the service of the 1st respondent on 20/7/79 as Junior Clerk. He was promoted as Chief Accountant w.e.f. 1/8/05. Exts.R1(a) and (b) resolutions show that the promotion was subject to the result of OP No.26491/02, and on condition that in case OP was allowed, the excess amount, if any received by the petitioner will be recovered. Petitioner accepted the promotion and continued as Chief Accountant. 2. Ext.P1 is the judgment rendered by this Court in OP 26491/02 where the seniority of the petitioner therein was declared over respondents 3 to 6 therein, among whom the petitioner herein was the 3rd respondent. This judgment dated 29.8.05 was confirmed by a Division Bench of this Court vide Ext.P2 judgment dated 4/9/07 rendered in WA 1874/05. 3. Subsequently, inspite of the aforesaid resolutions and the judgments, 1st respondent passed Ext.P4 resolution dated 27/2/2008 not to revert the petitioner or to recover any amount that was received by him following his promotion as Chief WPC 25619/08 :2 : Accountant. Further it was also resolved to forward the pension papers in order to enable the petitioner to receive pension. Subsequently, the then Committee went out of office and new Committee assumed office on 28/04/2008. Later, on 30/6/2008, the petitioner attained the age of superannuation and retired from service. 4. There was no progress in the matter of payment of his terminal benefits and therefore the petitioner approached this Court by filing WP(C) No.21553/08. That writ petition was disposed of by Ext.P7 judgment dated 17/7/08, directing the Bank and its Board to take appropriate action to have the pension papers of the petitioner forwarded to the Pension Board through the Assistant Registrar of Co-operative Societies at the earliest and at any rate within 2 months from the date of receipt of a copy of this judgment. It is stated that although if the respondents herein were aggrieved, they were given the freedom to seek review of Ext.P7 judgment, they did not do so and therefore the judgment has become final. 5. Thereafter the new Committee which assumed charge on 28/4/2008 passed resolutions dated 5/8/08 and 9/8/08 and WPC 25619/08 :3 : issued Ext.P10 notice to the petitioner informing him that in implementation of Exts.P1 and P2, retrospective promotion has been given to Sri.M.K.Chandra Menon, the petitioner in WP(C) No.26491/02 and consequently, petitioner is reverted, resulting in reduction of Rs.395 in his pay. On this basis, it is stated that the petitioner had received an amount of Rs.87,880 towards excess pay and leave salary of Rs.395. He was called upon to remit this amount and informed that once it is remitted, his pension papers will be forwarded as directed in Ext.P7 judgment. Petitioner has filed as Ext.P11, a statement prepared by him and contends that going by his own estimation, the maximum amount that is recoverable is only Rs.47,553 and not Rs.88,275 as mentioned in Ext.P10. In this writ petition what the petitioner seeks is quashing of Ext.P10 and directing the respondents to forward his pension papers and also to release his terminal benefits, none of which, according to the petitioner have been released. 6. Bank has filed a counter affidavit justifying its decision. According to the Bank, since the petitioner's promotion was subject to the result of OP 26491/02 and as this Court by Extd.P1 judgment allowed the original petition, which was also confirmed WPC 25619/08 :4 : by Ext.P2 judgment of the Division Bench, the resolution of the Committee as reflected in Ext.P4 was erroneous. It is stated that it was therefore that resolutions mentioned in Ext.P10 were passed and the notice was issued to the petitioner. 7. Essentially, therefore, what arises for consideration is the correctness or otherwise of the resolutions which led to Ext.P10 notice issued by the 1st respondent. In my view, this is an issue which ought to be agitated before the Arbitrator in terms of Section 69(2)(d) of the Kerala Co-operative Societies Act. Therefore, petitioner is relegated to pursue his remedies against the resolutions mentioned in Ext.P10 and Ext.P10 itself in appropriate proceedings under the Act. 8. Be that as it may, fact remains that the petitioner has rendered almost 29 years of service and his last drawn salary, according to him, was Rs.25,525/-, it is his specific case that none of his terminal benefits have been released on account of the controversy mentioned in Ext.P10. Even if amount mentioned in Ext.P10 is withheld for the time being, subject to the resolution of the aforesaid dispute in appropriate proceedings, nothing prevents the Bank from releasing the amounts which are WPC 25619/08 :5 : otherwise due to the petitioner. This necessarily will include forwarding of the pension papers as well with the admitted amount as the salary drawn. Therefore, it is directed that on the production of a copy of this judgment, the Bank shall take steps for withholding the amount mentioned in Ext.P10 from out of the amounts which are due to the petitioner and settle the remaining claims of the petitioner. This shall be done, as expeditiously as possible, at any rate within 8 weeks of production of a copy of this judgment. This will necessarily include forwarding of the pension papers as well, which shall be done within three weeks of receipt of a copy of this judgment. 9. Once the controversy in relation to Ext.P10 is resolved, necessarily, any follow up action that is needed shall also be taken. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp