IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WA.No. 1022 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.31574/2009 Dated 21/05/2010 .................... APPELLANT(S): PETITIONER ------------------------ MOLY.C.I,AGED 58 YEARS, W/O.FR.GEORGE MATTAM,MATTATHIL VEEDU,CHUVANNAMANNU, THRISSUR. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): RESPONDENTS --------------- 1. THE PANANCHERY SERVICE CO-OPERATIVE BANK PANANCHERRY,PATTIKADU,THRISSUR,REPRESENTED BY ITS SECRETARY. 2. THE JOINT REGISTRAR(GENERAL)CO-OPERATIVE SOCIETIES,AYYANTHOLE,THRISSUR. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 4. THE KERALA CO-OPREATIVE EMPLOYEES PENSION BOARD,THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY. ADV. SRI.P.N.MOHANAN FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ W.A. 1022 of 2010 ------------------------------------------------------ Dated: JULY 23, 2010 JUDGMENT Basheer, J. Appellant is a retired employee of 1st respondent Society. She retired from the Society on superannuation on May 31, 2009 while she was working as Accountant. 2. But she was denied her retiral benefits like Pension, Gratuity, Welfare Fund Contributions, DA Arrears, Leave Surrender etc. by her former employer. In response to the request made in this regard, the appellant was informed by the Society that her claim for retiral benefits cannot be considered for the time being since she was found to have been involved in misappropriation of the funds of the Society while she was in service. She was further informed that she had drawn excess pay during her tenure. 3. It was in the above circumstances that the appellant approached this Court under Art.226 of the Constitution of India praying for issue of a writ in the nature of mandamus or such other appropriate writ or direction to the Society to pay pension and pensionary benefits to her with interest for the delayed payment. 4. The learned Single Judge disposed of the writ petition after W.A. 1022 of 2010 2 hearing the learned counsel for the Society as well, with a direction to the Kerala Co-operative Employees Pension Board to process the application submitted by the appellant in this regard and to sanction and disburse the same to her expeditiously, atleast within a period of two months from the date of receipt of a copy of the judgment. 5. The appellant takes exception to the above direction issued by the learned Single Judge in this appeal. According to the learned counsel, the learned Single Judge failed to take note of the fact that the grievance of the appellant was not confined to denial of pension alone. Her case was that she was not even paid gratuity, Welfare fund, DA arrears, Leave surrender etc. also. Learned counsel invites our attention to Ext.P12 representation submitted by the appellant before the Society in this regard. Learned counsel submits that the appellant who had put in 31 years of service in the Society is now made to run from pillar to post with a begging bowl. She has now been compelled to approach this Court even though there is absolutely no justification in withholding the payment. 6. In response to the above contention, it is submitted by learned counsel for the Society that the payment has been withheld for valid and justifiable reasons. The Society has already initiated steps to recover a sum of Rs.3,22,806/- from the appellant and W.A. 1022 of 2010 3 instituted an arbitration case (ARC No.1721 of 2009) before the Assistant Registrar of Co-operative Societies, who is the competent authority/arbitrator to resolve the monetary disputes under sec.69 of the Kerala Co-operative Societies Act. It is further pointed out by the learned counsel that the amount, if any, that is found liable to be paid by the Society excluding the amount indicated above will be paid to the appellant if she appears before the Society and executes necessary acknowledgments for the same. 7. In this context it may be noticed that the Society has quantified the above sum of Rs.3,22,806/- as hereunder:- The amount misappropriated by the appellant under invoice Nos.1779, 167 and 273 dated 28.6.1997 - Rs.90,120/- Excess salary received by the appellant - 46,138/- Interest on the above amounts - 1,86,548/- ---------------- Total 3,22,806/- ========== 8. It is pointed out by the learned counsel for the appellant that till her superannuation in the May 2009 the Society had never raised any allegation of misappropriation against the appellant in her blemishless career. Similarly, she was also never put on notice that she had drawn excess salary while she was in service. Learned W.A. 1022 of 2010 4 counsel asserts that even as on today, the appellant has not received any notice in the ARC proceedings which are stated to be pending before the Assistant Registrar. It is also pointed out by the learned counsel that in Ext.P11 communication sent by the Society on August 21, 2009 the appellant was informed, for the first time, that the Managing Committee of the Society had decided to recover a sum of Rs.90,120/- allegedly recoverable in connection with some discrepancy in the accounts. In the same communication the appellant was further informed that she had drawn a sum of Rs.46,138/- as excess salary. 9. However, learned counsel for Society points out that in Ext.P3 which was issued by the Society way back on February 20, 2004 certain discrepancies in the records maintained by the appellant were pointed out. But the fact remains that till May 31, 2009, the date on which the appellant retired from service, no proceedings were initiated against her. Even Ext.P3 is totally silent about the alleged misappropriation of Rs.90,120/-. 10. The case of the Society appears to be that the appellant had misappropriated the above sum covered under three invoices (invoice Nos.1779, 167 and 273). She had made entries in the accounts that the above sum of Rs.90,120/- had been paid to a W.A. 1022 of 2010 5 trading company on June 28, 1997. Similar entries were carried out in the Day Book also. But the appellant allegedly made use of the photocopy of the same invoices later and misappropriated the above sum of Rs.90,120/- creating entries in the Day Book on March 31, 1998. This appears to be the charge of misappropriation against the appellant. 11. As mentioned earlier, appellant retired from service on May 31, 2009, about 12 years after the alleged act of misappropriation. The statement made by respondent No.1 also does not indicate during which year the appellant had drawn excess salary. Anyhow, such a claim has now been made by the Society and that too, long after her retirement. 12. Be that as it may, the short question that arises for consideration is whether for the sole reason that the Society has chosen to initiate proceedings for recovery of the alleged amounts due from the appellant under the two heads referred to above, the appellant can be denied her retiral benefits of not only the pension, but even the gratuity, Welfare fund etc. also. Learned counsel submits that the appellant is prepared to furnish sufficient security for the entire amount payable to her and she is prepared to face the ARC proceedings since she is quite confident that her hands are still clean. W.A. 1022 of 2010 6 13. However, learned counsel for the Society vehemently takes exception to the above submission and asserts that the amount of Rs.3,22,806/- covered under the ARC proceedings cannot be paid to the appellant under any circumstances. 14. In this context it may be noticed that out of the sum of Rs.3,22,806/-, the major chunk is interest which comes to Rs.1,86,548/-. Learned counsel for the appellant points out that the appellant is prepared to pay interest on the alleged amounts of liability as claimed in the ARC proceedings provided the Society pays interest to her at the same rate on the arrears of retiral benefits. 15. Why did the Society wait so long to initiate the proceedings in the ARC? There is no answer. Why did not the Society take any steps to recover the excess salary that the appellant had allegedly drawn? Yet again there is no answer. But learned counsel for the Society submits that the Society is prepared to release the other amounts which may be left behind after withholding the above sum of Rs.3,22,806/-. 16. Having regard to the entire facts and circumstances of the case, we have no hesitation to hold that the stand taken by the Society cannot be justified or countenanced. Therefore respondent No.1 Society is directed to pay the entire amounts like gratuity, Welfare W.A. 1022 of 2010 7 fund, DA arrears, Leave surrender etc. to the appellant on her furnishing security in the form of immovable property. It is made clear that we have not expressed any opinion about the sustainability of the claim in the ARC. It will be open to the parties to raise all their contentions before the appropriate authority in the ARC proceedings. The payment that will be made by the Society to the appellant as directed above shall be subject to the result of the ARC. 17. The payment shall be made by the Society within two weeks from the date of receipt of a copy of this judgment. The claim for interest for the delayed payment can be raised by the appellant in the ARC proceedings. Respondent No.1 shall also pay a sum of Rs.10,000/- as costs to the appellant within one month from today. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-