IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 19270 of 2006(R) ------------------------------------- PETITIONER(S): ------------------------ P.K.MATHAI, AGED 71 YEARS, S/O.KUNJUMMAN, PADINJAREKARAYIL, THURUTHIKAD.P.O, MALLAPPALLY, BRANCH MANAGER(RETIRED), KALOOPPARA BRANCH. BY ADV. MR.S.SUBHASH CHAND RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION (E) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, CO-OPERATION (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. KERALA STATE CO-OPERATIVE EMPLOYEE'S PENSION BOARD, TC.NO.27/156, KALA NIVAS, CHINMAYA LANE, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. 4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), PATHANAMTHITTA. 5. THE THIRUVALLA EAST CO-OPERATIVE BANK LTD. NO. 3260, ERAVIPEROOR, REP. BY ITS GENERAL MANAGER. R1, R2 & R4 BY GOVT. PLEADER MR.K.S.MOHAMMED HASHIM R3 BY ADV. MR. P.V.MOHANAN SC KSCEPB R5 BY MR .K.V.SOHAN, SMT.SREEJA SOHAN.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.19270/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GO(P) NO.58/2003/ CO-OP. DTD. 24.3.03. P2:- COPY OF THE NOTICE PUBLISHED IN MATHRUBHOOMI DAILY DTD. 2.3.04. P3:- COPY OF THE COVERING LETTER SUBMITTED BY THE PETITIONER ALONG WITH HIS APPLICATION FOR PENSION DTD. 29.3.04. P4:- COPY OF THE RECEIPT DTD. 29.3.04 ISSUED BY THE MANAGER OF THE BANK. P5:- COPY OF THE JUDGMENT DTD. 1.3.04 PASSED BY THIS HONOURABLE COURT IN OP. 13868/99. P6:_ COPY OF THE REPRESENTATION DTD. 20.4.04 SUBMITTED BY THE PETITIONER TO RESPONDENT 3,4 AND 5. P7:- COPY OF THE JUDGMENT DTD. 12.8.05 PASSED BY THIS HONOURABLE COURT IN WP(C) NO.15756/04 . P8:- COPY OF THE NOTIFICATION BEARING SRO NO.486/06 ISSUED BY THE IST RESPONDENT. P9:- COPY OF THE REPRESENTATION DTD. 2.7.06 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 3,4 AND 5. P10:- COPY OF THE ORDER DTD. 22.8.06 ISSUED BY RESPONDENT NO.3 TO RESPONDENT NO.5. R5(a):- COPY OF THE MEMO OF CONSENT SOUGHT FOR OF THE EMPLOYEES OF 5TH RESPONDENT, DTD. 22.9.06. ANNEXURE 1:- COPY OF THE JUDGMENT DTD. 1.12.08 IN WPC. 33878/08 AND CONNECTED MATTERS. TRUE COPY P.S. TO JUDGE tss ANTONY DOMINIC,J. --------------------- W.P.(C).No.19270 OF 2006 ------------------------ Dated this the 18th day of August, 2009. JUDGMENT The prayer sought for in this writ petition is to direct the respondents to process the application of the petitioner for sanctioning monthly pension along with arrears as directed in Ext.P5. The other reliefs sought for are consequential in nature. 2. Petitioner was a Branch Manager working under the 5th respondent Bank, who retired from service on 26.9.1992. Subsequent to his retirement, on 14.3.1995, the Co-operative Societies Employees Self Financing Pension Scheme 1994 was introduced with effect from 3.6.1993. Later, by an amendment introduced by Ext.P1 notification dated 24th March, 2003, clause 38-A was introduced to the Pension Scheme, 1994 by which those who retired during the period from 1.1.1974 to 3.6.1993 WP(c).No.19270/06 2 and are living, were also brought within the fold of the Pension Scheme. Clause 38-A also provided for the conditions to be satisfied in their case, which included that any person, who opts for pension shall within six months remit to the Pension Fund an amount equal to such portion of the Contributory Provident Fund as may constitute the employer's contribution and that pension shall be payable from 4.5.2002. 3. It is stated that, thereafter Ext.P2 newspaper publication was given, based on which the petitioner submitted Ext.P3 application to the 5th respondent which was acknowledged as per Ext.P4. It is stated that at about that stage, Ext.P5 judgment was rendered by this court in WP(c). No.13868/99, where this court, after referring to Section 61 the Kerala Co-operative Societies Act and paragraph 18 of the Pension Scheme held that, the stand of the Pension Board that an employee covered by its Contributory Provident Fund Scheme is not eligible for pension cannot be accepted and on that basis consequential directions were also issued. Taking WP(c).No.19270/06 3 into account Ext.P5 judgment, SRO No.578/06 dated 12.7.2006 was issued by the Government of Kerala, clarifying that the Pension Scheme 1994 shall apply to all Primary Co- operative Societies, Regional, Central and Apex co-operative Societies, other than Kerala State Co-operative Bank and District Co-operative Bank coming under the administrative control of the Registrar, with effect from 3rd June, 1993. 4. Petitioner submits that despite all this, Ext.P3 application submitted by him for coverage of the pension scheme was not forwarded by the Bank and therefore he represented to all authorities including the Bank. Thereafter he filed writ petition No.15756/05 which was disposed of by Ext.P7 judgment issuing the general directions to the Government of Kerala to consider the case for exempting the Bank itself from the purview of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. It is stated that, in pursuance to the aforesaid directions, by Ext.P8, notification SRO.No.486/06 dated 19th July, 2006, issued under Section 17 WP(c).No.19270/06 4 (1)(c) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 the Government of Kerala exempted the Primary Co-operative Banks in the State of Kerala to which the 1994 Scheme is applicable, from the operation of the Employees Pension Scheme, 1995, so as to enable the employees to enroll as members under the 1994 Scheme and get pension under the Scheme. Although it is pointed out that the said notification was challenged by the Regional Provident Fund Commissioner by filing WP(c).No.31775/06, that writ petition was subsequently dismissed as withdrawn. 5. Petitioner submits that despite all this even after representations, pension was not paid and therefore this writ petition was filed. In this writ petition by order dated 20.12.2006, this court issued the following directions. I. The fifth respondent shall forward all the documents, after due process, together with a request for the sanction of Pension to the writ petitioners, to the third respondent, Pension Board. ii. On receipt of such records and application(s) for the grant of pension, the third respondent shall inform the writ petitioners as well as the fifth WP(c).No.19270/06 5 respondent, the amount, which the writ petitioners have to pay for getting the pension. iii. On receipt of such intimation, the writ petitioners shall pay the amount so demanded, to the 5th respondent Bank, who in turn shall forward the said amounts to the third respondent. iv. On receipt of the amounts as above, the third respondent shall sanction the pension, due to the writ petitioners, including arrears, if any, within three months from the date of receipt of the amount. v. In case of any dispute regarding the amount to be paid to the third respondent thorough the fifth respondent, the writ petitioners shall pay the same, under protest and, thereafter, work out their respective remedies at a later stage. “ 6. That order was not complied with and thereafter yet another order was passed by this court on 17th of August, 2007, directing that the Board shall process the pension and disburse the amount to the petitioner provided the petitioner remit their contribution. It is stated that, contribution due was not intimated to them and therefore this court by order dated 10th December, 2007 directed that on the petitioner herein remitting an amount of Rs.41,000/- pension shall be WP(c).No.19270/06 6 provisionally fixed and paid. It is stated that accordingly pension was provisionally fixed and is being paid with effect from 1.2.2008. 7. The contention raised by the counsel for the petitioner is that retired employees like him are eligible for coverage of the 1994 Scheme, provided they comply with the conditions prescribed under clause 38-A of the 1994 Scheme. It is stated that, in pursuance to the interim order dated 10.12.2007, petitioner has complied with the condition and therefore there is no justification in not giving him the full pension that is due. 8. On the other hand the counsel for the respondent Board, submitted that, in terms of clause 39(1), with effect from the date of application of the Scheme to the Society, portion of the employer's contribution with interest accrued thereon standing on the credit of the employer in Contributory Provident Fund established under the PF Act has to be transferred in accordance with the provisions of the Act WP(c).No.19270/06 7 and credited in the Pension Fund under the 1994 Scheme. It is stated that the Society is bound to remit the entire amount due. It is stated that the society has failed in this respect and therefore the pension was not paid to the employees like the petitioner. It is stated that unless the Board has sufficient corpus, the Board will not be able to administer the self generating Scheme which is contemplated under the 1994 Scheme and therefore the Board cannot be faulted for non- payment of the pension. 9. Having heard the submissions made by both sides, I feel that irrespective of the technicalities involved, the petitioner is entitled to be paid pension. Admittedly, the petitioner having retired on 26.9.1992, he is entitled to the benefit of clause 38-A which brought within the fold of the scheme of those employees who have retired from service between 1.1.1974 and 30. 3.1996 and are living. In respect of such employees the obligation of the employees are those provided under clause 38-A itself, which reads as follows; WP(c).No.19270/06 8 38.A- A special provision for pension to certain persons-(1) Every person who has retired from the service of a society during the period between Ist January, 1974 ad 3rd June, 1993 and are alive on the date of commencement of the Kerala Co-operative Societies employees Self Financing Pension (Amendment) Scheme, 2003 shall be paid a monthly pension subject to the following conditions and restrictions, namely; (a) any persons who opts for pension shall, within six months, remit to the Pension Fund as amount equal to such portion to the Contributory Provident Fund as may constitute the employer's contribution; (b) pension shall be payable with effect from 4.5.2002. (c). the amount of pension shall be determined in the manner provided in clause 22. (d) no family pension shall be payable on the death of the recipient of pension.” 10. In this case the petitioner was always willing to pay the amount and in fact pursuant to the order dated 10.12.2007, he has refunded such portion of the Contributory Provident Fund which according to him, constitutes the employers contribution. If that be so, the petitioner cannot be denied the pension. However, the Board has complained that WP(c).No.19270/06 9 since the establishment itself has has been exempted from the purview of the PF Act as per Ext.P8 notification, unless the establishment, viz. the Bank, transfers the entire employers contribution in respect of its employees, the Board will not have sufficient corpus to discharge its liability. In my view, the scheme itself provides answer to this problem, if default has been committed by the Co-operative Bank, clause 38 enables the Board to recover any amount due from the Society by taking recourse to the provisions of the Revenue Recovery Act. Therefore, if there is failure on the part of a Bank, it is for the Board to take coercive action for realizing its dues and generate sufficient corpus to pay the pensionary benefits. 11. However, having regard to the fact that the Board is not having the service particulars and other details in relation to the petitioner, necessary information enabling the Board to quantify his dues should be furnished by the petitioner himself or the 5th respondent. WP(c).No.19270/06 10 12. Therefore, the writ petition is disposed of directing that the petitioner shall satisfy the Board that the amount refunded by him represents, such portion of the contributory provident fund constituting the employer's contribution and if the amount paid is inadequate, it will also be the responsibility of the petitioner to make up the shortage. The petitioner or the 5th respondent Bank should also furnish all service particulars with the Pension Board in order to enable the Board to quantify the dues. It is made clear that once the aforesaid process is completed pension will be released to the petitioner in terms of the clause 38-A of the 1994 Scheme. The benefits, after adjusting payments already made, shall be disbursed, as expeditiously as possible and at any rate within 8 weeks of furnishing the required details. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.19270/06 11