IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WP(C) NO. 16552 OF 2022
PETITIONER:
ANJARAKANDY FARMERS' SERVICE CO-OPERATIVE BANK LTD.,
NO 1141, P.O. MAMBA, KANNUR-670611, REPRESENTED BY ITS
MANAGING DIRECTOR ANIL KUMAR M.P.
BY ADVS.K.P.PRADEEP
HAREESH M.R.
SANAND RAMAKRISHNAN
T.T.BIJU
T.THASMI
M.J.ANOOPA
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY CO-OPERATION DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O.
THIRUVANANTHAPURAM - 695014.
3 KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, TC NO
27/156 & 157, CHINMAYA LANE NEAR AYURVEDA COLLEGE,
THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS SECRETARY.
4 THE KERALA CO-OPERATIVE OMBUDSMAN KATHIMUKKU,
THIRUVANATHAPURAM-695 023, REPRESENTED BY ITS SECRETARY.
5 M.KRISHNAN, S/O KUNHAMBU THAMB, KUDUKKIMETTA, P.O EACHUR,
KANNUR - 670 591.
BY ADVS.SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE
EMPLOYEES PENSION BOARD,
SMT.VIDHYA. A.C
SMT.A.C.VENUGOPAL
SRI.M.SASINDRAN,
SRI.JOSHY THANNICKAMATTAM, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16552 OF 2022
-2-
JUDGMENT
The petitioner, which is a Co-operative Society operating under the ambit of the Kerala Co-operative Societies Act and Rules thereunder ('KCS Act' and 'Rules', for short), has approached this Court impugning Ext.P7 order, issued by the 4th respondent - Kerala Co- operative Ombudsman ('Ombudsman', for short), directing the 3rd respondent - Kerala State Co- operative Employees Pension Board (Pension Board), to initiate action under Clause 38 of the Co-operative Employees Pension Scheme (hereinafter referred to as the 'Scheme' for short) and to ensure that the 5th respondent is paid his eligible pension due from the Society.
2. Smt.T.Thasmi - learned counsel for the petitioner, submitted that Ext.P7 order of the WP(C) NO. 16552 OF 2022 -3- Ombudsman is untenable and illegal, because it has been issued without jurisdiction. She added that all the disputes between her client and the 5th respondent were settled through Ext.P2 Memorandum and that all eligible amounts have already been paid to him. She, therefore, prayed that Ext.P7 be set aside.
3. In response, Smt.A.C.Vidhya - learned counsel appearing for the 5th respondent, submitted that Ext.P2 Agreement was only with respect to the specific claims mentioned therein, but that her client is always statutorily additionally entitled to pension, which is covered by the 'Scheme'. She submitted that, therefore, when the Society refused to abide by their obligations under the 'Scheme', her client had no other option but to approach the Ombudsman and obtain Ext.P7 order. She WP(C) NO. 16552 OF 2022 -4- argued that the Ombudsman has the jurisdiction to consider this aspect and therefore, that the impugned order is irreproachable. She thus prayed that this writ petition be dismissed.
4. Sri.M.Sasindran - learned Standing Counsel for the 3rd respondent - Pension Board, submitted that his client has already initiated action as per Clause 38 of the 'Scheme' against the Society; and that requisition for revenue recovery will also be made as per the Statutory mandate. He submitted that his client is not acting per se on the basis of Ext.P7 directions, but because they are obligated to do so under the provisions of the 'Scheme' itself. He, therefore, prayed that his client may be allowed liberty to continue with such proceedings in terms of law.
5. When I evaluate the afore submissions, WP(C) NO. 16552 OF 2022 -5- it is evident that the controversy between the parties is in a very small compass. The real question is whether petitioner is entitled to pension, notwithstanding Ext.P2 Agreement between the parties and whether such amounts can be now quantified and sought to be recovered by the Pension Board under the provisions of the 'Scheme'; while the challenge to Ext.P7 is only corollary.
6. When one examines Ext.P2, it is luculent that an Agreement was entered into between the parties with respect to the claims mentioned therein. The said Agreement is conspicuously silent on the question of pension, but it would not be possible for this Court to assume that this has been given up by the 5th respondent, since there is no such specific waiver therein.
WP(C) NO. 16552 OF 2022 -6-
7. Since the entitlement of pension is governed by a 'Scheme', which is statutorily sanctioned, the 5th respondent will certainly be at liberty to seek that same be paid to him, notwithstanding the fact that an Agreement relating to it is silent in Ext.P2.
8. Axiomatically, the petitioner - Society, cannot take the stand that they will not pay the contribution to the Pension Board, even when it is statutorily incumbent upon them to do so. The absence of an Agreement relating to pension of the 5th respondent in Ext.P2, therefore, in my firm view, is inconsequential and of no real impact on his entitlement, which is statutorily protected.
9. That being said, the further question is as to how the pension contribution has to be now calculated and recovered from the Society. WP(C) NO. 16552 OF 2022 -7- Going by the 'Scheme', certainly, it is the 3rd respondent - Pension Board, which has the full jurisdiction to invoke Clause 38 and adjudicate upon the amounts due and to then recover it as per the provisions therein, invoking the Kerala Revenue Recovery Act and such other applicable Statutes.
10. When I hold as aofre, it is rendered apodictic that whether the Ombudsman has issued Ext.P7 or otherwise, it is always obliged on the part of the Pension Board to have invoked their statutory powers and to recover the eligible amounts towards contributions from the Society. I am, therefore, of the firm view that, notwithstanding any view relating to the validity of Ext.P7, action as afore is required to be initiated and completed by the Pension Board at all times. Hence it would be WP(C) NO. 16552 OF 2022 -8- unnecessary for this Court to examine the validity of Ext.P7 in any manner.
Resultantly, I dispose of this writ petition without entering into the merits of Ext.P7, since I find it to be without consequence; and directing the 3rd respondent - Pension Board, to continue with their proceedings against the Society under the 'Scheme', subject to their remedies against the quantification, as may be available to them in law.
Needless to say, the Pension Board will act as per the Statutory 'Scheme' and endeavour to ensure the payment of pension to the 5th respondent at the earliest.
Sd/-
DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 16552 OF 2022 -9- APPENDIX OF WP(C) 16552/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 21-11-2014 IN WPC NO 3205 OF 2014.
EXHIBIT P2 TRUE COPY OF THE SETTLEMENT AGREEMENT ENTERED BY THE PETITIONER AND 5TH RESPONDENT DATED 11-04-2017.
EXHIBIT P3 TRUE COPY OF THE DECISION NO. DBR NO. 7 OF 4/17-18 DATED 29-052017 OF THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE COMPLAINT NO. 229/18 DATED 06-05-2018 FILED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN EXT P4 BEFORE THE 4TH RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE REPORT NO PB/LO/6433/2018 DATED 20-032019 FILED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.
EXHIBIT P5 B TRUE COPY OF THE ADDITIONAL COUNTER STATEMENT DATED 17-72019 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P5 C TRUE COPY OF THE ADDITIONAL STATEMENT DATED 16-5-2019 FILED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 07-09-
2019 ISSUED BY THE PETITIONER BANK TO THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE ORDER COM NO 229/2018 DATED 26-11-2021 ISSUED BY THE 4TH RESPONDENT.