IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 22982 of 2009(P) PETITIONER: --------------- N.SUKUMARAN, THARAYIL PADEETTATHIL, NADUVILEMURI, NOORANAD, ALAPPUZHA DISTRICT. BY ADV. SMT.JAYASREE MANOJ RESPONDENTS: --------------- 1. KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD,THIRUVNANTHAPURAM REPRESENTED BY ITS SECRETARY. 2. NOORANAD SERVICE CO-OPERATIVE BANK LRS. NO.1559,PADANILAM P.O. NOORANAD, MAVELIKARA TALUK, REPRESENTED BY ITS SECRETARY. R2 BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR R1 BY STANDING COUNSEL SRI.P.V.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE RESOLUTION DATED 17.2.1997. EXT.P2 TRUE COPY OF THE REQUISITION DATED 21.2.1997 EXT.P3 TRUE COPY OF THE REVISED REQUISITION. EXT.P4 TRUE COPY OF THE PAYMENT ADVICE. EXT.P5 TRUE COPY OF THE DECISION DATED 29.3.2003. EXT.P6 TRUE COPY OF THE REPRESENTATION DATED 16.8.2005. EXT.P7 TRUE COPY OF THE RESOLUTION DATED 28.1.1989. EXT.P8 TRUE COPY OF THE EXTRACT OF THE ENTRY MADE IN THE DAY BOOK OF THE SECOND RESPONDENT. EXT.P9 TRUE COPY OF THE PASS BOOK. EXT.P10 TRUE COPY OF THE JUDGMENT DATED 19.9.2006. EXT.P11 TRUE COPY OF THE ORDER DATED 5.2.2007. EXT.P12 TRUE COPY OF THE ORDER OF THE LOKAYUKTHA DATED 6.5.2009. EXT.P13 TRUE COPY OF THE ORDER DATED 31.7.2008 OF THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 22982 OF 2009 P ------------------------------------------------------ Dated this the 19th day of August, 2010 JUDGMENT In this Writ Petition, various questions pertaining to the interpretation of the provisions of the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994 (hereinafter referred to as 'the Scheme'), Section 61 of the Co-operative Societies Act read with Rule 58 of the Kerala Co-operative Societies Rules, 1969, are raised for consideration. 2. The petitioner was appointed as Clerk in the Nooranad Service Co-operative Bank Ltd., No.1559 on 1.6.1972. He retired from service on superannuation on 30.6.2002. According to the petitioner, he is entitled to pension under the Scheme, taking the qualifying service as 1.7.1974. The Kerala State Co-operative Employees Pension Board (hereinafter referred to as 'the Board') took the view that the qualifying service of the petitioner is to be reckoned with reference to the date of Ext.P1 resolution passed by the Bank, namely, 17.2.1997 and not 1.7.1984, the date of commencement of the Scheme in the Bank mentioned in that W.P.(C) NO. 22982 OF 2009 :: 2 :: resolution. The view of the Bank is expressed in several documents in several ways. In the latest counter affidavit filed on 10.8.2010 as per the direction issued by this Court, the Bank took the stand that the writ petitioner is entitled to pension reckoning the qualifying service with effect from 1.7.1984 and not 1.7.1974 as claimed by the petitioner. 3. The Board granted pension to the petitioner as per Ext.P4 order dated 6.7.2005 at the rate of Rs.662/- per month. According to the petitioner, this figure was arrived at reckoning the qualifying service with effect from 19.2.1997, the date of the resolution passed by the Bank. The petitioner challenged Ext.P4 order in W.P.(C) No.33881 of 2005, which was disposed of along with another Writ Petition, as per Ext.P10 judgment dated 19.9.2006, directing the Board to consider all the contentions of the parties and to pass an order after verifying the records kept by the Bank. The Board passed Ext.P11 order dated 5.2.2007, taking the view that the Bank had no authority to pass a resolution on 17.2.1997 giving retrospective operation to the commencement of the contributory provident fund with effect from 1.7.1984. Therefore, it was held that the pension already granted to the petitioner was just and proper. W.P.(C) NO. 22982 OF 2009 :: 3 :: 4. The petitioner approached the Lok Ayukta in Complaint No.1190 of 2007 challenging Ext.P11 order. The contention put forward before the Lok Ayukta was that the pension was liable to be refixed reckoning the qualifying service from 1.7.1984 to 30.6.2002. The Lok Ayukta did not accept this contention and therefore, the complaint was dismissed. 5. The reliefs prayed for in the Writ Petition are the following: “(i) to issue writ of certiorari or any other writ, direction or order calling for the records leading to the issuance of Exhibits P11 and P12 and quash the same; (ii) to issue a writ of mandamus or any other writ, direction or order directing the 1st respondent to revise the pension sanctioned to the petitioner treating the date of commencement of qualifying service as 01/07/1974 and to pay the benefits forthwith including arrears from 01/07/2002 till the date of payment with interest @ 24% per annum; W.P.(C) NO. 22982 OF 2009 :: 4 :: (iii) to issue a writ of mandamus or any other appropriate writ, direction or order directing the 2nd respondent to transfer the employer's contribution of provident fund in respect of the petitioner from 01/07/1974 to 30/06/1984 with interest to the Pension Fund forthwith, if not already transferred; (iv) to issue a writ of mandamus or any other appropriate writ, direction or order directing the 1st respondent to recover from the 2nd respondent employer's contribution of provident fund in respect of the petitioner from 01/07/1974 to 30/06/1984 with interest forthwith, if not already recovered.” 6. The Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act'), which is an Act to consolidate, amend and unify the laws relating to co-operative societies in the State of Kerala, came into force on 15.5.1969. Section 80 of the Act provides that the Government shall classify the societies in the State according to their type and financial position. Section 61 of the Act reads as follows: “61. Provident Fund:- (1) A society shall establish a contributory provident fund for the benefit of W.P.(C) NO. 22982 OF 2009 :: 5 :: its employees, to which shall be credited all contributions made by the employees and the society in accordance with the rules or the Employees Provident Funds Act, 1952 (Central Act 19 of 1952) whichever is more beneficial. Provided that the contributory provident fund established under this sub-section shall not apply to the employees of such society to which the provisions of the Self Financing Pension Scheme framed under sub- section (1) of section 80A are made applicable and such society shall establish a Provident Fund in such manner and subject to such conditions or restrictions, as may be prescribed, for the benefit of such employees.; (2) A Provident Fund, whether contributory or not established by a society under sub-section (1) -- (a) shall not be used in the business of the society; (b) shall not form part of the assets of the society; (c) shall not be liable to attachment or be subject to any other process of any court or other authority; W.P.(C) NO. 22982 OF 2009 :: 6 :: (d) shall be deposited in the financing bank of the area.” Proviso to sub-section (1) of Section 61 was inserted by Amendment Act 16 of 1993. In sub-section (2), for the words “a contributory provident fund”, the words “provident fund, whether contributory or not” were substituted by Act 16 of 1993. Rule 58 of the Kerala Co- operative Societies Rules, 1969 provides for Provident Fund. For the sake of convenience, the relevant portion of sub-rule (1) of Rule 58 is quoted below: “(1) Every Society shall, establish a Provident Fund whether contributory or not, for its employees and frame regulations for the maintenance and the utilisation of the said Fund. Among other matters, such regulations shall provide for the following, namely:-- (a) in the case of Contributory Provident Fund, (i) an amount not less than 8.33 per cent of the pay to be deducted from the salary of employee and credited to the Provident Fund as employees' contribution. W.P.(C) NO. 22982 OF 2009 :: 7 :: (ii) an amount at the rate of 8.33 per cent of the pay of the employee to be paid by the society as employers' contribution.” Rule 58 was substituted by SRO.538/98. The relevant portion of Rule 58 before the substitution was as follows: “58. Provident Fund:-- Every society, shall establish a Contributory Provident Fund for its employees and frame regulations for the maintenance and the utilisation of the said Fund. Among other matters, such regulations shall provide for the following namely:-- (i) an amount not less than ten per cent of the employees' basic pay to be deducted from the employee's salary as contribution. (ii) a sum at the rate of ten per cent of the basic pay of the employee's salary shall be made by the society as employer's contributions.” Rule 58 provides that in the case of a non-contributory Provident Fund, an amount of not less than ten per cent of the basic pay shall be contributed by an employee. The second proviso to sub-rule (1) W.P.(C) NO. 22982 OF 2009 :: 8 :: of Rule 58 provides that the contributory provident fund established under sub-section (1) of Section 61 of the Act shall cease to operate in the case of existing employees brought under the Self Financing Pension Scheme framed under Section 80A of the Act. Section 80A of the Act reads as follows: “80A. Pension Scheme:-- (1) The Government may, by notification in the Gazette, frame a Self Financing Pension Scheme for the establishment of a Pension Fund for payment of pension to the employees of the societies in the manner provided therein and may appoint different dates for the application of the scheme to different classes of societies. (1A) The Self Financing Pension Scheme framed under sub-section (1) may also provide for payment of pension from the pension fund at such rates and subject to such conditions and restrictions as may be specified therein to person retired from service of any society during the period between 1st January, 1974 and 3rd June 1993 and are alive. (2) The pension fund established under the Self Financing Pension Scheme framed under sub-section (1) shall vest in, and be administered by, such body or authority as may be specified in the said scheme.” W.P.(C) NO. 22982 OF 2009 :: 9 :: 7. The Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994 was framed by the Government of Kerala, in exercise of the powers conferred by Section 80A of the Kerala Co-operative Societies Act. The Scheme applies to such class or classes of Societies as the Government may, from time to time, by notification in the Gazette, specify. Clause 2(h) defines 'qualifying service' as: “(h) 'qualifying service' means service reckoned for the purpose of pension under this Scheme.” Clause (3) of the Scheme provides for establishment of a Pension Fund for payment of pension to the employees of Co-operative Societies. A monthly contribution at the rate of 10% of the pay as specified in clause (2)(g) shall be credited to the Pension Fund. The Pension Funds shall vest in and be administered by the Board, namely, the Kerala State Co-operative Employees Pension Board. It is relevant to extract clauses 18, 19 and 38 of the Scheme: “18. Eligibility for Pension:-- (1) Every employee of a society to which this Scheme applies shall, subject W.P.(C) NO. 22982 OF 2009 :: 10 :: to the other provisions of the Scheme, be eligible for pension under this Scheme: Provided that an employee, who has received the contributory Provident Fund shall be eligible for pension only on the refund of that portion of the employers' contribution in the Contributory Provident Fund together with interest thereon to the Pension Fund before applying for pension. (2) An employee who has been dismissed or removed for misconduct, insolvency or inefficiency shall not be eligible for pension; Provided that the authority to impose such penalty may, recommend to the Board to grant compassionate allowance to the employee so dismissed or removed in deserving cases; Provided further that such compassionate allowance shall not exceed two third of the pension which would have been admissible to him, had he retired on the date of dismissal or removal, as the case may be. 19. Qualifying Service:-- Qualifying service for granting pension under the Scheme shall be -- W.P.(C) NO. 22982 OF 2009 :: 11 :: (1)(a) in the case of an employee who was in the service of a society on the date of application of this Scheme to that society the length of service commencing from the date of joining the Contributory Provident Fund: Provided that the qualifying service shall be limited to the period for which the employer's contribution towards the Provident Fund has been fully paid by the Society in respect of that employee. Provided further that where the employee was a Subscriber to any pre-existing Provident Fund Scheme implemented in that Society and contribution made thereon has been transferred to the Pension Fund, such period will also qualify for pension. Provided also that an employee who was on probation and on whose behalf the Contributory Provident Fund contribution has not been remitted at the time of implementation of the scheme, such period of probation shall also qualify for pension, if proportionate employers' contribution together with interest thereon has been credited to the Pension Fund. (b) in the case of an employee who has entered W.P.(C) NO. 22982 OF 2009 :: 12 :: into service of a society on or after the date of application of this Scheme to that society, the service from the date of entry into service. (2) The service of an employee of a society in another society shall be treated as qualifying service, provided the other society has transferred to the Pension Fund the employer's contribution paid to the Provident Fund by the society in respect of that employee for the period the employee was in the service of that other society, or the employee has refunded to the Pension Fund the amount of employer's contribution in the Provident Fund, if any, received by him from that other society. (3) The period spent on leave except leave without allowances shall be counted for qualifying service. (4) The period spent on training by an employee shall be treated as qualifying service. (5) The period under suspension of such extent of that period as declared by the competent authority to be counted shall be treated as qualifying servcice. (6) Any period of break in service and service W.P.(C) NO. 22982 OF 2009 :: 13 :: prior to 18 years and beyond 58 years shall not be counted for reckoning qualifying service. ....... ........... ........... 38. Recovery of amount due from a Society:-- If any amount due from a society to the Pension Fund under this Scheme is in arrears, the secretary or any other officer authorised by him in this behalf shall, after due enquiry, ascertain the amount of arrears and if the society fails to clear the arrears within the 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 arised 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.” 8. An employee who has received contributory provident fund, as established under Rule 58 of the Rules, would be eligible to pension only on the refund of that portion of the employer's contribution in the contributory provident fund together with interest to the Pension Fund. Sub-section (1-A) of Section 80A provides for payment of pension from the Pension Fund to persons who retired from service of any society during the period between 1.1.1974 and W.P.(C) NO. 22982 OF 2009 :: 14 :: 3.6.1993 and who were alive at the relevant time. Sub-section (1A) of Section 80A was inserted by Amendment Act 3 of 2002. Going by Section 61 of the Act, it is mandatory on the part of a society to establish a contributory provident fund for the benefit of its employees. Contributions are payable by the employers as well as the employees. The more beneficial provision, whether it is as per the Rules framed under the Co-operative Societies Act or the Employees Provident Fund Act, 1952, shall apply in respect of the contributions to the contributory provident fund. On the coming into force of the Self Financing Pension Scheme, as provided in the proviso to sub-section (1) of Section 61, the contributory provident fund shall not apply to the employees of the societies to which the Scheme applies. With effect from the date of application of the Scheme, the portion of the employers' contribution with interest accrued thereon standing to the credit of the employees in the contributory provident fund shall be transferred and credited by the society to the pension fund established under the Scheme, as provided in clause 39 of the Scheme. Clause 39 also provides for charging interest at 24% per annum on the delayed remittance of the employers' contribution. The employees' contribution in the contributory provident fund shall not stand transferred to the pension W.P.(C) NO. 22982 OF 2009 :: 15 :: fund under the Scheme. In other words, the contribution of the employees is not a part of the pension fund. Corpus of the pension fund is the employers' contribution standing to the credit of the employees as on the date of commencement of the Pension Scheme. A duty is cast on every society to remit the employer's contribution standing to the credit of the employee to the pension fund. 9. For computing the pension, it is necessary to assess the qualifying service. The qualifying service in the case of an employee who was in service of the society as on the date of commencement of the Scheme is the length of service commencing from the date of joining the contributory pension fund. Therefore, for the purpose of computing the pension, the date of joining of the employee in the contributory pension fund is the relevant date as provided in clause 19(1)(a) of the Scheme. Clause 39(1)(a) which speaks of remittance of the employers' contribution standing to the credit of the employees also means that the employees must have joined in the contributory provident fund. 10. Smt.Jayasree Manoj, learned counsel appearing for the W.P.(C) NO. 22982 OF 2009 :: 16 :: petitioner relies on Ext.P3 revised requisition for registration submitted by the society to the Pension Board to put forward the contention that the petitioner is entitled to reckon the qualifying service with effect from 1.7.1974. Ext.P2 dated 21.2.1997 was the original requisition submitted by the Bank to the Pension Board, in which, the date of joining to the contributory provident fund by the petitioner was mentioned as 1.7.1984. As against that column, it was shown that a sum of Rs.19,707/- was transferred to and credited to the pension fund. The Bank submitted Ext.P3 revised requisition in October 2002, in which, the date of joining the contributory provident fund was altered as 1.7.1974 and the date of commencement of the Management's contribution was also changed as 1.7.1974. In Ext.P3, the amount transferred to the pension fund was shown as Rs.22,155/-. The counsel for the petitioner submitted that the employer having transferred the necessary amount to the pension fund, the employee, namely, the petitioner, is entitled to pension computed on the basis of the qualifying service with effect from 1.7.1974. 11. Sri.T.R. Harikumar, learned counsel appearing for the Bank, submitted that Ext.P7 resolution dated 28.1.1989 passed by W.P.(C) NO. 22982 OF 2009 :: 17 :: the Bank shows that the Bank resolved to implement the Provident Fund Scheme to its employees with effect from 1.7.1984. In Ext.P1 resolution dated 17.2.1997 also, it is stated that from 1984 onwards the Bank was liable to pay the employers' contribution to the provident fund and that it was resolved to remit the same so as to enable the employees to get the benefit of pension from the pension fund. Sri.Harikumar submitted that the view taken by the Board that in the resolution dated 17.2.1997, a decision was taken to retrospectively implement the contributory provident fund is factually incorrect and that Ext.P7 dated 28.1.1989 clearly establishes that the Provident Fund Scheme was implemented with effect from 1.7.1984. He also submitted that the petitioner is entitled to get his pension sanctioned taking the qualifying service from 1.7.1984. Sri.Harikumar also submitted that the employee's stand that he is entitled to reckon 1.7.1974 as the relevant date is unsustainable. 12. In reply, Smt.Jayasree Manoj submitted that Ext.P9 passbook shows that provident fund arrears from 1.7.1974 to 31.5.1993 were remitted by the petitioner on 24.4.2002 and, therefore, he is entitled to compute the qualifying service from 1.7.1974. W.P.(C) NO. 22982 OF 2009 :: 18 :: 13. As stated earlier, the relevant factor is what is the employers' contribution standing to the credit of the employee, for the purpose of remitting the same to the pension fund. For the purpose of computing the qualifying service, the length of service commencing from the date of joining the contributory provident fund is the relevant factor. If so, a unilateral act on the part of the employee paying the arrears of employees' contribution from 1.7.1974 would not compel the employer to pay the employers' contribution retrospectively, for the period for which the employee was not a member of the contributory provident fund. 14. Sri.P.V.Mohanan, learned counsel appearing for the Board, supported the decision of the Board in Ext.P11 and submitted that the employee cannot be allowed to decide from which date the qualifying service is to be reckoned without his joining in the provident fund. The employers' contribution is the corpus of the pension fund and that being so, the employee would not be entitled to get anything in excess of what is provided in the Pension Scheme, though it is intended for the benefit of the employees. He submitted that the relevant date is the date of resolution and, as seen from W.P.(C) NO. 22982 OF 2009 :: 19 :: Ext.P1, the relevant date would be 17.2.1997, the date on which the Bank resolved to remit the arrears to the pension fund. 15. Going by the provisions mentioned above, I am not inclined to accept the contention of the petitioner in full. I am also not inclined to accept the contention raised by Sri.P.V.Mohanan that the relevant date is the date of the resolution passed by the Society. Going by clause 19 read with clause 39 of the Scheme, the relevant date is the date of joining the contributory provident fund. The portion of the employers' contribution for the period during which the employee was contributing to the contributory provident fund shall be transferred and credited by the Society to the Pension Fund under the Scheme. In such a case, the employee would be justified in contending that his qualifying service is to be reckoned from the date of joining the contributory provident fund. As seen from Ext.P7 resolution dated 28.1.1989, it is crystal clear that the Contributory Provident Fund Scheme was introduced in the Bank from 1.7.1984. There is no case for the Board that it did not receive the employer's contribution with reference to that date. If so, the employee, namely, the petitioner is entitled to reckon his qualifying service with effect from 1.7.1984. At the same time, the employee is not entitled to W.P.(C) NO. 22982 OF 2009 :: 20 :: contend that by making his contribution for the period from 1.7.1974 on a subsequent date and that too after coming into force of the Scheme, he would be entitled to compute the qualifying service from an anterior date, anterior in point of time of his joining the contributory provident fund. 16. I am also of the view that the finding of the Lok Ayukta that the petitioner is not entitled to the relief which was prayed for, is unsustainable. It is interesting to note