IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
WP(C) NO. 4457 OF 2020
PETITIONER:
THE KERALA STATE CO-OPERATIVE BANK LTD.
KOTTAYAM, (THE ERSTWHILE KOTTAYAM DISTRICT CO-OPERATIVE
BANK LTD), REPRESENTED BY ITS GENERAL MANAGER,
KOTTAYAM-686001.
BY ADVS.
T.A.SHAJI (SR.)
SRI.S.ABHILASH VISHNU
SRI.ATHUL SHAJI
SHRI.NIKHIL SUNNY MOOKEN
RESPONDENTS:
1 SYAMALA.K.S., KOTTACHIRAYIL HOUSE, MEVADA P.O, PALA,
KOTTAYAM DISTRICT, PIN-686573.
2 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL)
KOTTAYAM, PIN-686001.
3 KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD
REPRESENTED BY ITS SECRETARY, P B NO. 85, KERALA NIVAS,
T.C. 27/156, 157, CHINMAYA LANE, KUNNUMPURAM, NEAR
AYURVEDA COLLEGE, THIRUVANANTHAPURAM-695001.
BY ADVS.
SRI.P.N.MOHANAN, SC
SRI.M.SASINDRAN, SC
SRI.C.P.SABARI
SMT.AMRUTHA SURESH
SRI.H.MAHADEVAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4457 OF 2020
2
JUDGMENT
The petitioner impugns Ext.P8 order of the Kerala Co- operative Tribunal, Thiruvananthapuram (for short, 'the Tribunal'), in which the claim of the first respondent herein - who was their erstwhile employee, for pensionary benefits, consequent to her retirement, has been directed to be acceded to by them.
2. Sri.Athul Shaji, learned standing counsel for the petitioner, submitted that Ext.P8, to the extent to which it directs his client to disburse the pensionary benefits to the first respondent, is illegal and unlawful because: for the first, the Tribunal did not obtain any jurisdiction to issue such an order; and, for the second, since the petitioner is still subjected to a disciplinary action, which is still pending. He argued that, therefore, as per Rule 198(7) of the Co- operative Societies Rules ('KCS Rules' for short), the first respondent cannot seek her retiral benefits to be disbursed until the disciplinary enquiry against her is completed.
3. Sri.Athul Shaji, thereafter, explained that the disciplinary enquiry against the first respondent was, in fact, completed in the year 2013, consequent to which, she filed WP(C) NO. 4457 OF 2020 3 an appeal before the Statutory Appellate Authority - the Managing Committee of the Bank - which ended in Ext.P8 order confirming the order of punishment, imposing a penalty of recovery of loss caused to the Bank from her. He argued that, therefore, until such recovery is effected, the Tribunal could not have directed her pensionary benefits to be released; and then added vehemently that the said order is without competence because the proceedings before the Tribunal arose from a non-maintainable appeal against Ext.P7 order of the Co-operative Arbitration Court, in a suit filed by the first respondent against the disciplinary action and punishment imposed against her. The learned counsel, therefore, prayed that this writ petition be allowed.
4. In response, Sri.C.P.Sabari - learned counsel for the first respondent, submitted that, even going by Exts.P5 and P6 orders of disciplinary enquiry against his client, the punishment imposed is as per Rule 198(1)(e) of the Kerala Co-operative Societies Rules (KCS Rules), which only allows recovery from pay, of the whole or part of any pecuniary loss caused to the society. He argued that this will not permit recovery from pension or other retiral benefits and that this WP(C) NO. 4457 OF 2020 4 is more so, because his client has now retired from service. He then added that the alleged pecuniary loss to the Bank has not been yet quantified and that if any proceedings for the same had been initiated by them, she would have been able to convince its appropriate Authority that she was not responsible for such - even if assuming that any such loss had been occasioned - because she was only the sanctioning Authority of the loans in question and nothing else. He then further submitted that the Bank appears to be making an allegation that there is a loss of Rs.62 lakhs, but that, as has been correctly referred in Ext.P8, this has not been quantified, nor as the Bank been able to explain how they say so, when every loan was supported by collateral and sufficient other security. Sri.C.P.Sabari, therefore, prayed that this writ petition be dismissed.
5. Sri.Sreehari I., learned counsel appearing for the standing counsel for the Employees' Pension Board, submitted that they have not yet obtained the pension docket with regard to the first respondent from the petitioner - Bank; nor have they paid the eligible contribution. He submitted that as soon as this is done, necessary steps will WP(C) NO. 4457 OF 2020 5 be taken to disburse the eligible pension to the first respondent.
6. As I have said above, the specific stand of the petitioner - Bank is that the disciplinary enquiry against the first respondent is still pending and therefore, that the Arbitration Court could not have issued Ext.P7, asking them to disburse the eligible pensionary benefits to her.
7. The afore argument has an inherent problem embedded to it because, the Bank admits unequivocally that they have not yet quantified the liability against the first respondent and that the punishment imposed against her is only under Section 198(1)(e) of the KCS Rules. This punishment postulates the recovery from the pay of an employee, but is conspicuously silent as to such action being issued against the retiral benefits. Therefore, the Bank can only act under the provisions of Section 198(8) of the KCS Rules, through which, a Non-liability Certificate will require to be obtained by the first respondent before her pensionary benefits can be claimed. Normally, if the Bank had approached a competent Authority under Section 69 of the Kerala Co-operative Societies Act (for short 'KCS Act') and WP(C) NO. 4457 OF 2020 6 had obtained an Award, then they could have withheld the Non-Liability Certificate, or issued one, accounting for the said liability or loss, had it been legally quantified.
8. In the case at hand, the Bank has not, concededly, approached any Authority under Section 69 of the KCS Act, but they still maintain that there is a loss caused to them, on account of omissions from the part of the first respondent. This is egregiously improper because Ext.P6 final order was issued as early as in the year 2014; and for the last eight years, they have chosen not to approach any Authority for quantification of the alleged loss, saying that the first respondent had, in the meanwhile, approached the Arbitration Court and the Tribunal against the attempt to recover amounts from her pensionary benefits. The first respondent was certainly at liberty to have invoked any remedy that may be available to her in law, but I do not understand how this could have been cited by the petitioner - Bank to say that they had not initiated any action for quantification of the alleged liability.
9. This is crucial because, had the Bank initiated any action for qualification, it would have been available for the WP(C) NO. 4457 OF 2020 7 first respondent to establish that she was not responsible for it, even assuming that loss had been caused to them; and therefore any continued inaction on the part of the Bank in such direction and to then rely upon the same to deny payment of the pensionary benefits, is an affront to the KCS Act and Rules, in particular Rule 198(8) of the latter.
10. In the afore circumstances, I do not understand why the petitioner Bank challenges Ext.P8; but since I notice that it is only because Arbitration Tribunal has directed them to pay the pensionary benefits, I deem it appropriate to read it down in the manner that I proposed hereunder.
11. Resultantly, I order this writ petition, clarifying that, notwithstanding Ext.P8 order of the Arbitration Tribunal, the petitioner Bank will be at liberty to initiate any action as may be available to them in law, subject to the laws of Limitation, to seek quantification of the alleged liability against the first respondent.
However, whether they do so or otherwise, the entire pensionary benefits due to the petitioner shall be disbursed by the Bank within a period of four months from the date of receipt of a copy of this judgment and they are at liberty to WP(C) NO. 4457 OF 2020 8 try and obtain interdictory orders from the competent Authority in the meanwhile; in which event, the afore direction will stand deferred, until such time as such orders operate.
Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 4457 OF 2020 9 APPENDIX OF WP(C) 4457/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF SUSPENSION ORDER ISSUED BY THE PART TIME ADMINISTRATOR TO THE 1ST RESPONDENT DATED 19.09.2012.
EXHIBIT P2 TRUE COPY OF CHARGE MEMO ISSUED BY GENERAL MANAGER OF THE PETITIONER BANK TO THE 1ST RESPONDENT DATED 19.10.2012.
EXHIBIT P3 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER TO THE PETITIONER BANK DATED 02.12.2013.
EXHIBIT P4 TRUE COPY OF LETTER SENT BY THE 1ST RESPONDENT TO THE DISCIPLINARY SUB COMMITTEE DATED 30.04.2014.
EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE CHAIRMAN OF DISCIPLINARY SUB COMMITTEE DATED 19.07.2014.
EXHIBIT P6 TRUE COPY OF ORDER ISSUED BY THE BOARD OF DIRECTORS ON THE APPEAL FILED BY THE 1ST RESPONDENT HEREIN DATED 20.12.2014.
EXHIBIT P7 TRUE COPY OF THE AWARD PASSED BY THE CO-
OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM DATED 10.10.2018.
EXHIBIT P8 TRUE COPY OF JUDGMENT OF KERALA CO-
OPERATIVE TRIBUNAL DATED 22.11.2019.