IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 WP(C).No. 25374 of 2008(U) -------------------------- PETITIONER(S): --------------- K.D.ALEX RODRIGUES, KOLLAMVELIKKAKATH HOUSE, KADUKUTTY.P.O, PIN-680315. BY ADV. SRI.THAMPAN THOMAS SMT.JANCY ALEX RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY THE SECRETARY, DEPARTMENT OF CO-OPERATIVES, SECRETARIAT, TRIVANDRUM. 2. JOINT REGISTRAR (GENERAL), THRISSUR. 3. ASSISTANT REGISTRAR (GENERAL), MUKUNDAPURAM. 4. KAKDUKUTTY SERVICE CO-OPERATIVE BANK LTD 628 REP.BY ITS SECRETARY, KADUKUTTY.P.O, PIN-680315. 5. THE KERALA STATE CO-OPERATIVE EMPLOYEE'S PENSION BOARD, REPRESENTED BY ITS SECRETARY, T.C.NO.27/156, 157 CHINMAYA LANE, THIRUVANANTHAPURAM. ADV. SRI.P.P.JACOB FOR R4 SRI.P.V.MOHANAN, SC, KERALA STATE CO.OPERATIVE EMPLOYEE'S PENSION BOARD FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C)No.25374 of 2008 --------------------------------------------- Dated this the 17th day of June, 2010 JUDGMENT The grievance of the petitioner is that he was not granted pension under the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994. 2. The petitioner while working as Salesman-cum-Clerk in Kadukutty Service Co-operative Bank Ltd. (4th respondent - herein after referred to as the 'Bank') retired from service on 31.5.1987. At the time of retirement, there was no scheme as Self Financing Pension Scheme. In the Kerala Co-operative Societies Act, Section 80(A) was inserted by Act 16 of 1993 which came into force on 20.8.1993. A Self Financing Pension Scheme was introduced for payment of pension to the employees of the Societies. However, that scheme was not applicable to persons who retired from service before the introduction of the scheme. By Act 3 of 2002, Sub Section 1(A) was inserted in Section 80(A) which provides for payment of pension to persons WPC No.25374/2008 2 who retired from service of any Society during the period between 1st January 1974 and 3rd June 1993, provided such person was alive. For the sake of convenience Section 80(A) is extracted below: “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. [“(IA) 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 WPC No.25374/2008 3 sub-section (1) shall vest in, and be administered by, such body or authority as may be specified in the said scheme.” 3. The Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994 (herein after referred to as the scheme) provides for establishment of a Pension Fund for payment of pension to the employees of the Co-operative Societies. The fund is constituted by contribution by the society at the rate of 10% of the pay of the employees. Clause 27 of the scheme provides for an application to be submitted by an employee claiming superannuation pension in the prescribed form. The application has to be submitted to the Chief Executive of the Society. Clause 38(A) was inserted by SRO 265/03 dated 25.3.2003. Clause 38(A) of the scheme reads as follows: “(1) Every person who has retired from the service of a society during the period between 1st January, 1974 and 3rd June, 1993, and are alive on the date of commencement of the Kerala Co-operative Societies Employees Self Financing Pension (Amendment) Scheme, 2003, WPC No.25374/2008 4 shall be paid a monthly pension subject to the following conditions and restrictions, namely:- (a) 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; (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. (2) The provisions of clauses 19, 20, 22A, 26 and 27 shall, mutatis mutandis apply to the payment of pension under sub-clause (1).” 4. As per Clause 38(A) of the scheme, the applications for pension should have been preferred before 25.9.2003. It is not in dispute that the last date was further extended till 31.3.2005. 5. The case of the petitioner is that he had submitted an application for pension under the Self Financing Pension Scheme WPC No.25374/2008 5 to the Chief Executive of the Bank. The service records were not available in the Bank and they were reconstructed with great difficulty. However, the application was not forwarded to the Pension Board. The petitioner submitted a representation dated 19.9.2003 to the Assistant Registrar of Co-operative Societies. The Assistant Registrar as per Ext.P2 communication dated 27.9.2003 directed the Secretary of the Bank to take urgent steps to enable the petitioner to get the pension. The Secretary was also directed to inform the Assistant Registrar about the steps taken by the Bank. The Secretary of the Bank has filed three counter affidavits in none of which there is any case that Ext.P2 was not received by the Secretary of the Bank. 6. The case of the petitioner is that he had remitted a sum of Rs.5,000/- in the Bank on 14.10.2003 as evidenced by Ext.P5 challan No.770 signed by the Secretary and cashier of the Bank. Ext.P5 would indicate that the amount was “for Pension Board Remittance.”. There is no dispute about the remittance of Rs.5,000/- by the petitioner. The petitioner, however, did not disclose that he had withdrawn that amount. This is a WPC No.25374/2008 6 suppression of fact. A suppression of material fact would entail the dismissal of the Writ Petition. However, I am not dismissing the Writ Petition on that ground since the petitioner is a retired employee and he is putting forward a claim for the grant of pension under the Self Financing Pension Scheme. Ext.R4(b) voucher dated 3.4.2004 shows that the petitioner had received Rs.5,000/- from the Bank. Ext.R4(b) would indicate the following: “S/Liability Kept on 14.10.03 for Pension Board” 7. The scheme was introduced as a social welfare measure. It provides relief to the retired employees of Co-operative Societies. As per the scheme, in order to get the benefit of granting of pension, the retired employee has to remit to the Pension Fund an amount equal to such portion of the Contributory Provident Fund constituting the employers contribution, as provided in Clause 38(A)(a) of the scheme. The payment of Rs.5,000/- was, according to the petitioner, towards this amount. That payment was made before the expiry of the WPC No.25374/2008 7 last date fixed for applying under the scheme. However, the petitioner had withdrawn that amount, that too before the expiry of the date fixed for applying. It is clear that the petitioner was pursing his right to get pension. That is clear from Ext.P2 communication issued by the Assistant Registrar to the Secretary of the Bank, Ext.P3 representation submitted by the petitioner and also Ext.R4(a) representation dated 16.5.2008 submitted by the petitioner. The plea taken by the Bank is that no application submitted by the petitioner was seen in the Bank. As stated earlier, there is no case for the Bank that Ext.P2 communication issued by the Assistant Registrar was not received by the Secretary. Thereafter, on 14.10.2003, the petitioner had deposited Rs.5,000/- for the purpose of making it available to the Pension Fund. Still, there is no explanation from the side of the Bank as to why necessary steps were not taken to enable the petitioner to avail the benefit of pension. There is also no explanation as to why the Secretary of the Bank did not reply to the Assistant Registrar in compliance of Ext.P2 communication. In short, there were lapses on the part of the Chief Executive of the Bank. Even before the expiry of the last WPC No.25374/2008 8 date fixed for making the application under the scheme, the petitioner had approached the Assistant Registrar complaining that he was not granted pension and that the Bank was not taking appropriate steps for the same. It is also clear that there was some confusion in the Bank due to the non availability of the service records relating to the petitioner. The petitioner cannot be blamed for the lapse on the part of the Bank. 8. Sri.P.V.Mohanan, the learned counsel appearing for the Kerala State Co-operative Societies Employees Pension Board submitted that if the Board is directed to grant pension to the retired employees, who had not submitted the necessary applications before the cut off date, it would create great difficulties for the Board. It is submitted that the amount to be remitted by the employee is only a negligible amount whereas the Board has to pay as pension a large amount. After finalising the processing the application of persons who are entitled to the benefit of Clause 38(A) of the Scheme, if others are also allowed to get the benefit of the scheme, it would create additional burden to the Board. WPC No.25374/2008 9 9. In the case on hand, I do not find any reason why the petitioner should be denied the benefit of the Self Financing Pension Scheme. He had taken the necessary steps before the expiry of the period fixed under the scheme. He had remitted the amount which he was liable to remit. However, due to the lapse on the part of the Bank, he had withdrawn that amount. The petitioner has expressed his readiness to pay the necessary amount before the Board. In the peculiar facts and circumstances of the case, I am of the view that the petitioner should be granted the relief prayed for in the Writ Petition. 10. Accordingly, the Writ Petition is disposed of as follows : (i) The petitioner shall make a fresh application to the Chief Executive of the 4th respondent for pension, as provided under the Kerala Co-operative Societies Employees Self Financing Pension Scheme. (ii) The petitioner shall remit the necessary amount for availing the benefit under the scheme. WPC No.25374/2008 10 (iii) On receipt of the application, the Secretary of the 4th respondent shall forward the application and shall take all the necessary steps to enable the Board to grant pension to the petitioner in accordance with the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994. (iv) If the petitioner makes the application as referred to above on or before 31.12.2010, the Board shall treat the same as an application which was preferred within the period provided under Clause 38(A) of the scheme and shall process the application in accordance with law, as expeditiously as possible and at any rate within a period of three months from the date of receipt of the application. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE csl