IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
WP(C) NO. 37307 OF 2016
PETITIONERS:
KARAVARAM PANCHAYATH SERVICE CO-OPERATIVE BANK LIMITED NO.T 324
KARAVARAM,KARAVARAM P.O, KALLAMBALAM, THIRUVANANTHAPURAM
DISTRICT - 695 605, REPRESENTED BY ITS SECRETARY.
BY ADVS.
SRI.K.SIJU
SRI.S.ABHILASH
SMT.RENY ANTO
RESPONDENTS:
1 KERALA CO-OPERATIVE OMBUDSMAN,
KAITHAMUKKU, THIRUVANANTHAPURAM - 695 023, REPRESENTED BY ITS
SECRETARY.
2 G.SIVASANKARA KURUP
PUNNASSERY VEEDU, KARAVARAM P.O, KALLAMBALAM 695 605.
BY ADVS.
SRI.ASWIN.P.JOHN
SRI.V.RENJITH KUMAR
SRI.THOMAS ABRAHAM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2022,
ALONG WITH WP(C).14835/2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NOS. 37307/2016 & 14835/2018
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
WP(C) NO. 14835 OF 2018
PETITIONERS:
G.SHIVASANKARA KURUP
AGED 67 YEARS
PUNNASSERY HOUSE, KARAVARAM P.O, KALLAMBALAM,
THIRUVANANTHAPURAM - 695 605.
BY ADVS.
SRI.THOMAS ABRAHAM
SRI.ASWIN.P.JOHN
SMT.MERCIAMMA MATHEW
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-
OPERATION,GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 JOINT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL)
VANCHIYOOR, THIRUVANANTHAPURAM - 695 035.
3 KARAVARAN SERVICE CO-OPERATIVE BANK LTD
NO.T324, KARAVARAM P.O, KALLAMBALAM,
THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY - 695 605.
BY ADV SRI.K.SIJU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2022,
ALONG WITH WP(C).37307/2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NOS. 37307/2016 & 14835/2018
3
JUDGMENT
I am disposing of these two writ petitions jointly through this judgment, because the reliefs sought for therein are interdependent and the factual edifice is common.
2. W.P.(C)No.37307/2016 has been filed by the 'Karavaram Panchayath Service Co-operative Bank Ltd.', (hereinafter referred to as 'the Society' for short); while W.P.(C)No.14835/2018 has been filed by Sri.G.Shivasankara Kurup, who is stated to have superannuated from the services of the Society on 30.04.2009.
3. The grievance of Sri.G.Shivasankara Kurup is that he has not been paid the retiral benefits until now by the Society and he appears to have approached various Authorities, including the Kerala Co-operative Ombudsman ('Ombudsman' for short), who issued an order dated 14.06.2016.
4. The afore order of the Ombudsman has been challenged by the Society in W.P.(C)No.37307/2016; while Sri.G.Shivasankara Kurup seeks that the said order, along with certain other interim orders issued by it, be directed to be implemented by the Society, without any further delay.
5. I have heard Sri.Thomas Abraham - learned counsel for Sri.G.Shivasankara Kurup; Sri.Siju Kamalasanan - learned counsel for WP(C) NOS. 37307/2016 & 14835/2018 4 the Society and Smt.Resmi Thomas - learned Government Pleader appearing for the official respondents.
6. Sri.Siju Kamalasanan - learned counsel for the Society began his submissions saying that the delay in payment of the retiral benefits is not on account of any reason attributable to his client, but because the petitioner refused to accept it when it was offered to him. He argued that, quantification of the retiral benefits, as claimed by Sri.G.Shivasankara Kurup in Ext.P5 produced along with W.P. (C)No.37307/2016, is without any basis and that his entitlement is much lower, which has been mentioned by his client in Ext.P4(c). He asserted that, the eligible amounts to Sri.G.Shivasankara Kurup is only Rs.4,54,881/- while there is a liability of Rs.1,12,352/- against him. He submitted that, therefore, deducting the liability, the Society offered Sri.G.Shivasankara Kurup the balance amounts, which is evident from Ext.P4 series, but that he refused to accede to it or to accept it. He added that the learned Ombudsman could not have issued the impugned order because, it has no jurisdiction to enter into the eligibility of pensionary benefits to any employee; thus praying that no fault be found against his client and W.P.(C)No.37307/2016 be allowed and W.P. (C)No.14835/2018 dismissed.
7. In response, Sri.Thomas Abraham - learned counsel for Sri.G.Shivasankara Kurup, submitted that quantification of the retiral benefits by the Society is egregiously wrong and that his client has WP(C) NOS. 37307/2016 & 14835/2018 5 detailed the actual amounts in Ext.P5 produced along with W.P. (C)No.37307/2016. He added that law has been well settled by this Court through various judgments that a Society cannot unilaterally fix any liability against a retired employee and then recover it. He contended that the fact that the Society did not choose to approach the competent Arbitrator for such purpose would demonstrate the untenability of such claims. Sri.Thomas Abraham, then argued that the learned Ombudsman has only ordered the retiral benefits to be paid to his client by the Society along with interest and therefore, that it cannot be assailed by them, even assuming that the applicable law does not permit the said Authority to have entered into an adjudication of the quantum of said benefits.
8. I have evaluated and examined the submissions afore, on the touchstone of the various materials available on record.
9. As I have said above, the point in controversy in these cases is the order of the learned Ombudsman. The Society alleges that the learned Ombudsman obtained no jurisdiction to have issued the impugned order; while Sri.G.Shivasankara Kurup's contention is to the contrary.
10. I must, however, say that the validity of the order of the learned Ombudsman is not really relevant because the claim of the petitioner is based on the applicable Statutory Scheme, with respect to his reitral benefits.
WP(C) NOS. 37307/2016 & 14835/2018 6
11. There is no dispute impelled by the Society that Sri.G.Shivasankara Kurup is entitled to the reitral benefits; but only that the quantum claimed by him is excessive and that his claim for interest is without basis.
12. In that perspective, it is without doubt that there has been no proper quantification of the retiral benefits of the petitioner as of now, though the Society appears to be acting upon certain inputs, which are uncorroborated.
13. I say so because, while the Society maintains that Sri.G.Shivasankara Kurup is entitled only to Rs.3,50,000/- as gratuity, his claim is to a larger amount of Rs.7,50,000/-. There is nothing on record to show how these rival claims have been reconciled and this is certainly a matter which the Society will have to consider at the first instance.
14. Obviously, the question of interest on the same will also have to be appropriately modulated, taking note of any offer that may have been earlier made by the Bank to Sri.G.Shivasankara Kurup as regards his retiral beneffits.
15. That said, however, the stand of the Society, that they have quantified an amount of Rs.1,12,352/- as liability against Sri.G.Shivasankara Kurup, cannot find my favour because, as rightly argued by Sri.Thomas Abraham, the law in this regard has been affirmatively declared by this Court, and by the Hon'ble Supreme Court WP(C) NOS. 37307/2016 & 14835/2018 7 that unless the Society is able to obtain an Award or such other valid means of quantification of liability, they cannot impose it against the retired employee unilaterally. It is conceded that the Society has not approached any competent Authority for quantification of the liability against the petitioner and therefore, their present stand, that they will only pay the retiral benefits to Sri.G.Shivasankara Kurup after deducting an amount of Rs.1,12,352/-, cannot find my imprimatur.
Resultantly,
a) W.P.(C)No.37307/2016 is ordered, directing the competent Authority of the Bank to hear the petitioner and quantify the retiral benefits, along with the applicable interest under the various heads, which shall be done as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. The Bank will be at liberty to rely upon any document offering the petitioner the amounts admitted by them, if any, and eligible interest for the balance will be assessed and quantified in terms of law.
b) Subject to the right of Sri.G.Shivasankara Kurup to challenge any quantification as above, the amounts so determined shall be paid to him within a period of one month thereafter.
c) The afore directions will not stand in the way of the Society in disbursing the admitted amounts to the petitioner forthwith.
d) I clarify that the afore directions will have to be complied with by the Society de hors the liability determined by them unilaterally WP(C) NOS. 37307/2016 & 14835/2018 8 against Sri.G.Shivasankara Kurup and that they will be at liberty to recover any amounts from him, only if they are able to obtain an Award from the competent Authority, under the provisions of the Kerala Co- operative Societies Act or such other applicable Statutes.
e) To enable the Society to invoke any such remedy, I clarify that the period from 21.11.2016 - when W.P.(C)No.37307/2016 had been filed, and until the date of receipt of a copy of this judgment, will stand excluded for the purpose of limitation, because the said period has been covered by an interim order of this Court to the effect that the impugned order of the Ombudsman will not be enforced.
f) As a corollary to the afore directions, the order of the learned Ombudsman, impugned in W.P.(C)No.37307/2016, is declared to be without any relevance.
g) Consequentially, W.P.(C)No.14835/2018 is allowed in terms of the afore directions; leaving liberty to the petitioner to invoke any remedy that he may require at any stage of the afore proceedings or thereafter; for which purpose, all rival contentions are left open.
SD/-
DEVAN RAMACHANDRAN JUDGE rp WP(C) NOS. 37307/2016 & 14835/2018 9 APPENDIX OF WP(C) 14835/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE LETTER DATED 12.5.2009 ISSUED BY THE SECRETARY OF THE 3RD RESPONDENT SOCIETY. EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT DATED 2.4.2013 IN W.P(C) NO.22955 OF 2004.
EXHIBIT P3 THE TRUE COPY OF THE COMMUNICATION DATED 26.6.2013 ISSUED BY THE ASSISTANT REGISTER (GENERAL), CHIRAYINKIL TO THE SECRETARY OF THE 3RD RESPONDENT SOCIETY.
EXHIBIT P3(A) THE TRUE COPY OF THE COMMUNICATION DATED 30.8.2013 ISSUED BY THE ASSISTANT REGISTRAR(GENERAL), CHIRAYINKIL TO THE SECRETARY OF THE 3RD RESPONDENT. EXHIBIT P3(B) THE TRUE COPY OF THE COMMUNICATION DATED 13.11.2013 ISSUED BY THE ASSISTANT REGISTRAR(GENERAL), CHIRAYINKIL TO THE SECRETARY OF THE 3RD RESPONDENT SOCIETY.
EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 31.8.2013 SENT BY THE 3RD RESPONDENT.
EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED 31.5.2014 OF THE ASSISTANT REGISTRAR (GENERAL) ALONG WITH THE REPORT OF THE JUNIOR CONCURRENT AUDITOR.
EXHIBIT P6 THE TRUE COPY OF THE DOCUMENT DATED 1.6.2015 REVEALING THAT THE REPRESENTATION OF THE PETITIONER SUBMITTED BEFORE THE GOVERNMENT HAD BEEN FORWARDED TO THE REGISTRAR OF CO-OPERATIVE SOCIETIES. EXHIBIT P6(A) THE TRUE COPY OF THE DOCUMENT DATED 27.6.2015 SENT BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES OF THE JOINT REGISTRAR(GENERAL) FORWARDING THE REPRESENTATION WHICH THE PETITIONER HAD SUBMITTED BEFORE THE GOVERNMENT.
EXHIBIT P6(B) THE TRUE COPY OF THE COMMUNICATION DATED 6.8.2015 SENT BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES TO THE JOINT REGISTRAR (GENERAL) FORWARDING THE REPRESENTATION OF THE PETITIONER AND SEEKING REPORT WP(C) NOS. 37307/2016 & 14835/2018 10 OF THE ACTION TAKEN.
EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 19.10.2015 OF THE LOK AYUKTA EVIDENCING WITHDRAWAL OF THE COMPLAINT BY THE PETITIONER.
EXHIBIT P8 THE TRUE COPY OF THE ORDER NO.C.R.P(2) 5690/15/K.DIS DATED 11.12.2015 OF THE JOINT REGISTRAR(GENERAL) SENT TO THE 3RD RESPONDENT SOCIETY.
EXHIBIT P9 THE TRUE COPY OF THE ORDER DATED 14.6.2016 OF THE KERALA CO-OPERATIVE OMBUDSMAN IN COM. NO.231 OF 2016.
EXHIBIT P10 THE TRUE COPY OF THE REPRESENTATION DATED 29.3.2018 SUBMITTED BY THE PETITIONER.
RESPONDENT'S EXHIBITS:
EXT.R3(A) THE COPY OF NOTICE DATED 31.08.2013 ISSUED BY THE BANK TO THE PETITIONER.
EXT.R3(B) THE COPY OF COMMUNICATION ISSUED BY THE BANK TO THE WRIT PETITIONER DATED 5.11.2013.
EXT.R3(C) THE COPY OF COMMUNICATION ISSUED BY THE BANK TO THE WRIT PETITIONER DATED 30.12.2013.
EXT.R3(D) THE COPY OF COMMUNICATION ISSUED BY THE BANK TO THE WRIT PETITIONER DATED 23.1.2014.
EXT.R3(E) THE COPY OF COMMUNICATION ISSUED BY THE BANK TO THE WRIT PETITIONER DATED 23.10.2014.
EXT.R3(F) THE COPY OF DETAILED EXPLANATION SUBMITTED BY THE BANK BEFORE THE ASST.REGISTRAR (GENERAL) DATED 30.12.2015.
EXT.R3(G) THE COPY OF LETTER DATED 25.1.2016 ISSUED BY THE BANK TO THE PETITIONER.
WP(C) NOS. 37307/2016 & 14835/2018 11 APPENDIX OF WP(C) 37307/2016 PETITIONER EXHIBITS EXHIBIT P1. COPY OF ORDER DATED 14.6.16 PASSED BY THE KERALA CO-OPERATIVE OMBUDSMAN, THIRUVANANTHAPURAM IN COM. NO.231/2016.
EXHIBIT P2. COPY OF ORDER DATED 27.8.16 DISMISSING THE REVIEW PETITION IN COM.NO.231/2016 BY THE CO-OPRATIVE OMBUDSMAN, THIRUVANANTHAPURAM.
EXHIBIT P3. COPY OF NOTICE DATED 31.8.13 ISSUED TO THE 2ND RESPONDENT REQUESTING HIM TO COLLECT THE RETIREMENT BENEFITS.
EXHIBIT P4. COPY OF COMMUNICATION ISSUED BY THE BANK TO THE 2ND RESPONDENT TO COLLECT RETIREMENT BENEFITS BY LETTER DATED 5.11.13.
EXHIBIT P4[A]. COPY OF COMMUNICATION ISSUED BY THE BANK TO THE 2ND RESPONDENT TO COLLECT RETIREMENT BENEFITS BY LETTER DATED 30.12.13.
EXHIBIT P4[B]. COPY OF COMMUNICATION ISSUED BY THE BANK TO THE 2ND RESPONDENT TO COLLECT RETIREMENT BENEFITS BY LETTER DATED 23.1.14.
EXHIBIT P4[B]. COPY OF COMMUNICTION ISSUED BY THE BANK TO THE 2ND RESPONDENT TO COLLECT RETIREMENT BENEFITS BY LETTER DATED 23.1.14.
EXHIBIT P4[C]. COPY OF COMMUNICTION ISSUED BY THE BANK TO THE 2ND RESPONDENT TO COLLECT RETIREMENT BENEFITS BY LETTER DATED 25.1.16.
EXHIBIT P5. COPY OF LETTER DATED 19.12.15 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER BANK.
EXHIBIT P6. COPY OF THE CIRCULAR NO. 37/2011 DATED 21.5.11. RESPONDENT'S EXHIBITS:
EXT.R2(A) THE TRUE COPY OF THE JUDGMENT DATED 2.4.2013 IN WP(C) NOS. 37307/2016 & 14835/2018 12 WPC.22955/2004 EXT.R2(B) THE TRUE COPY OF THE ORDER DATED 34.5.2014 OF THE ASSISTANT REGISTRAR (GENERAL) ALONG WITH THE REPORT OFF THE JUNIOR CONCURRENT AUDITOR.
EXT.R2(C) THE TRUE COPY OF THE ORDER NO.CRP(2)5690/15/K/DIS.
DATED 11.12.2015 OF THE JOINT REGISTRAR (GENERAL)