G.Sukumariamma vs The Deputy Director
2021 Latest Caselaw 16442 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS
     THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                        WP(C) NO. 21046 OF 2020
PETITIONER:

          G.SUKUMARIAMMA
          AGED 67 YEARS
          W/O. L. SANKARAN KUTTY, SANKARALAYAM, MUZHANGOODI,
          THODIYUR P.O, KARUNAGAPPALLY, KOLLAM DISTRICT.

          BY ADVS.
          T.R.HARIKUMAR
          SRI.ARJUN RAGHAVAN


RESPONDENT/S:

    1     THE DEPUTY DIRECTOR
          DAIRY DEVELOPMENT DEPARTMENT, KOLLAM, KOLLAM DISTRICT
          691 001

    2     THE BOARD OF DIRECTORS OF THE PULIYOORVANCHI VADAKKU
          KSHEEROLPADAKA SAHAKARANA SANGHAM Q128(D) APCO
          REPRESENTED BY ITS PRESIDENT, THAZAVA P.O,
          KARUNAGAPPALLY, KOLLAM 690 523

    3     THE PULIYOORVANCHI VADAKKU KSHEEROLPADAKA SAHAKARANA
          SANGHAM Q 128 (D) APCOS,
          REPRESENTED BY ITS SECRETARY, THAZAVA P.O,
          KARUNAGAPPALLY, KOLLAM 690 523

    4     THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD,
          REPRESENTED BY ITS SECRETARY, P.B NO. 85, KALA NIVAS,
          CHINMAYA LANE, KUNNUMPURAM, THIRUVANANTHAPURAM 695 001

          BY ADVS.
          SRI.V.PHILIP MATHEW
          SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE EMPLOYEES
          PENSION BOARD



OTHER PRESENT:

          SR.GP BIMAL K NATH
 W.P.(C) No.21046/2020            2

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.07.2021, THE COURT ON 5/8/2021 DELIVERED THE FOLLOWING:
 W.P.(C) No.21046/2020                        3

                                       JUDGMENT

. The Writ petitioner was the Secretary of the third respondent Society who

retired on 31/3/2010. Prior to the retirement, she was suspended from service with

effect from 18/3/2010. Though an enquiry was stated to have been initiated, it did

not result in any final proceedings. Contending that petitioner was not given the

retirement benefits due to her, she approached this court by filing W.P.(C)

No.2152/2014. It was noticed by this court that the 6th respondent Society had not

forwarded the pension contribution of the petitioner and the pension docket. By

Ext.P5 judgment dated 12/10/2015 the writ petition was disposed of with the

following directions;

1. The Society shall release the DCRG and other eligible benefits to the petitioner within a period of one month from the date of receipt of a copy of the judgment.

2. The Society shall hand over the pension docket and other documents along with the contribution to the 7th respondent Pension Board to enable it to pay the pension to the petitioner. The Society shall hand over the documents and contribution within a period of one month from the date of receipt of a copy of the judgment and the Board shall thereafter,within a further period of two months, pay pension to the petitioner.

3. It is made clear that nothing prevents the Society from recovering the liability, if any, by initiating appropriate proceedings in accordance with law.

2.The Society filed a Review Petition as R.P.No.1124/2015 to review the

above judgment, which was dismissed by the Hon'ble judge on 4/12/2015

evidenced by Ext.P6. Thereafter, the above judgment was carried in appeal by the

Society, by filing W.A.No468/2016. The Division Bench by Ext.P7 judgment dated

17/3/2016 noted that the claim set up by the Society before the Division Bench was

that the audit has been completed and the amounts were due from her, for which

an arbitration case has been instituted. The Division Bench held that, it has to take

its logical course, but not by detaining the DCRG amount or pension component

with the employer or the Pension Board. Accordingly, the appeal was dismissed

by Ext.P7 judgment dated 17/3/2016 holding that the non release of the DCRG and

pension, as demonstrated in the case amounted to gross violation of the

Fundamental Rights, as well. This judgment has become final in the absence of

any challenge by the Society.

3. Alleging that the Society committed gross contempt of court by the willful

disobedience of the direction contained in Ext.P5 judgment, Contempt Case (Civil)

No.1529/2016 was filed by the petitioner. By Ext.P8 dated 5/07/2019, the learned

Single Judge before whom the contempt case was placed ,found that there were

prima facie materials to indicate that there was willful contempt and the mater was

liable to be referred to the Division Bench for further proceedings. The conduct of

the Society in not implementing the order of the court, came under severe

criticism by the learned Judge, though in the most modest words that may be used.

The court noted that during the pendency of the contempt case, several directions

had been issued by the Court on 23/3/2017, 27/6/2018 and 6/12/2018, to enable

the parties to ensure compliance of the directions. When the counsel for the

Pension Board submitted that they have not received any papers for sanctioning

pension, this Court observed that either of the respondents were playing hide and

seek game in the matter. Directions were issued to file an affidavit before that

Bench. It was also noted that pension was not sanctioned to the petitioner, since

in the pension documents it was recorded that she was dismissed from service in

the year 2012 , whereas as per the service records, she attained the age of

superannuation on 31/3/2010, after suspension on 17/3/2010. It was stated by the

society that, later she was dismissed from service with effect from 18/3/2010. The

court concluded by observing that;

"sufficient materials were not produced before the court to ensure the

compliance of the directions issued. Every time the respondents were

stating one or other reasons for non compliance of the directions and this

Court had been issuing order one after another. Even now, a clear

picture of the issue has not been stated rather than mentioning several

factors which may not be relevant in this case".

It was in that background the contempt of court proceedings were initiated. The

displeasure of the court in the manner in which orders of this court were flouted and

setting up lame excuses, one after another is evident from the words of this court.

It seems that, subsequently, the contempt was closed.

4. The next round of litigation, commenced with the present writ petition, in

which the petitioner sought for the following reliefs ;

"i). To issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 2 and 3 to correct the service book of the petitioner and forward it to the Pension Board along with pension contribution,within a time limit fixed by this Hon'ble Court.

ii). To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 4th respondent to initiate proceedings under Clause 38 of the Kerarla State Co-operative Employees" Self Financing Pension Scheme, 1994, against the 3rd respondent society for recovering the pension contribution, within a time limit prescribed by this Hon'ble Court."

5. A counter statement dated 11/3/2021 was filed by the Society along with

the documents produced as Exts.R3(a) to R3(e) and an additional counter affidavit

dated 2/7/2021 along with Exts.R3(f) to R3(h). The 4 th respondent Pension Board

had earlier filed a statement in which it was stated that, it was seen from the service

record of the petitioner that, petitioner was suspended from service and later

dismissed on 18/3/2010. It was noted that date of superannuation was after the

dismissal. The petitioner was not seen reinstated into service. It was stated that

the Pension Board had brought the above facts to the attention of the 3 rd

respondent society and requested the society to submit application for

compassionate pension to the petitioner as per clause 18 (2) of the Pension

Scheme . It was also stated that the Pension Board would initiate steps to

sanction eligible compassionate allowance to the petitioner after receiving proper

applications from the 3rd respondent recommending for sanction of the

compassionate allowance.

6. The writ petition came up for final hearing before this court on 29/3/2021.

It was heard and reserved for judgment. On referring to the back records of the

entire file, the conduct of the Society was found to be highly recalcitrant and that

Society was bent upon violating the orders of this court and the society was

taking an attitude of non co-operation with the orders of this court with the intention

of denying the benefits to the petitioner. Virtually, the purpose of the present writ

petition was to give effect to the judgment of this court in the writ appeal dated

17/3/2016, which remained unimplemented by the Society. This court felt that the

direction sought, to be issued to the respondents were in fact in relation to the

obligation and duty of the Society, pursuant to the direction of the Division Bench in

Ext.P7 dated 17/3/2016. Accordingly, the writ petition was re-opened and the

matter was taken for hearing on 8/4/2021. This court noticed that the entry in the

service book that the petitioner stood dismissed from service has not been

corrected, even after six years.

7. Since the relief sought in the present writ petition was to give effect to the

judgment of this court that was confirmed in W.A. No. 468/2016, the Society was

directed by order dated 8/4/2021 to implement the directions of this Court in letter

and spirit and to report compliance on 18/5/2021. It was directed that, if the

compliance was not reported, the President and Secretary of the Society shall

appear before this court in person on 19/05/2021.

8. It was specifically noted that the service book of the petitioner remained

uncorrected. Hence, this court directed the Society to produce service book and

pension book for the perusal of this Court. Thereupon, another statement was filed

as additional counter affidavit dated 2/7/2021 producing copy of the relevant page

of the service book as well as the pension book. Pension Book showed that the

original entry in the service book that the petitioner stood dismissed was cancelled

and now entry that she retired on 31/3/2021 was entered pursuant to the decision

of the committee dated 28/4/2021. By communication dated 16/5/2021, pension

docket, relevant pages of service books, Bank pass were forwarded.

9. The above mentioned facts clearly show that , even the decision to correct

the pension paper was taken by the Board only after this court directed for the

personal appearance of the President and the Secretary before this Court.

Correction of pension book was carried on only thereafter. In other words, though

the Society and the Board of Directors knew very well by Ext.P7 judgment that the

petitioner was to be treated as a person who had retired on superannuation and

were under an obligation to take necessary steps, they remained recalcitrant and

no action was taken to correct the pension paper or to take steps to give effect to

this Court's order and to forward the pension papers. Ext.R3(f) clearly shows that

all the necessary documents were forwarded only on 16/5/2021, after this court

took tough stand against the Society by insisting the personal appearaanc of

president and secretary. In the above circumstances, this court expressed

displeasure in the manner in which the Society was functioning. Secretary and the

President presented themselves in virtual platform on 22/7/2021 pursuant to the

directions of this court. These facts were brought to the notice of the President and

the Secretary and their explanation was also sought. They could not offer any

valid explanation, much less any explanation. They were also asked to show

cause why heavy compensation/fine shall not be imposed on the President, the

Society, Board of Directors and the Secretary. Still they could not give any

explanation. The President submitted that the present committee had been in

office since 2018. Hence, the President and each of the Board of Directors who are

arrayed as 2nd respondent and the Secretary had sufficient opportunity to comply

with the direction of this court., but flouted the different directions of this Court.

Hence, each of them is personally liable to compensate the petitioner. In the above

circumstances, I am inclined to allow the writ petition with the following stringent

directions;

1. The 4th respondent Pension Board shall process application and shall

pass final orders sanctioning pension and release all the benefits

whichever are found to be admissible, within a period of one month

from today. If further information are required, the Society will be

under an obligation to furnish such details without any further delay.

Any delay or non cooperation on the part of the Society will be

seriously viewed.

2. For willful disobedience of this court's repeated directions and for non

implementation of the orders of this court from 2016 onwards, the 2nd

respondent President, Board of Directors, the 3rd respondent society

and Secretary are personally liable to pay compensation of Rupees

One Lakh to the petitioner. The above amount shall be remitted at

first instance by the society in the bank account of the petitioner within

one month from today, failing which it will carry interest at the rate of

6% till the recovery, chargeable on the assets of the society. On

deposit of such amount, the amount so deposited shall be recoverable

from each of the above persons which will be chargeable on the

assets and person of the president, each of the Board of Directors as

well as the Secretary.

3). The President, 2nd respondent Board of Directors and the 3rd

respondent Secretary shall be jointly and severally liable for the above

compensation in equal proportion and the amount paid by the Society

as above shall be reimbursed in equal proportion by each of the above

person. If the amount is not paid voluntarily within one month after

deposit by secretary, the entire amount shall be recovered with 6%

interest from each of the Board of Directors including the President and

the 3rd respondent Secretary in equal proportion and till the amount is

paid by each of them, it shall be deemed to be arrears due to the

Society from that person for all practical purposes, including

disqualification, if any, for contesting future elections.

4). The first respondent Deputy Director shall ensure the above

compliance and default if any shall be reported to the superior officers

for necessary action.

5). In case of any breach, the petitioner will be free to file an interlocutory

application in this writ petition to revive, the present writ proceedings.

Sd/-

SUNIL THOMAS Judge

dpk

APPENDIX OF WP(C) 21046/2020

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE EXPLANATION DATED 30-07-

2010 SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER

EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 15-02-2011

EXHIBIT P3 A TRUE COPY OF THE REPLY DATED 19-10-2012 ISSUED BY THE DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT.

EXHIBIT P4                A TRUE COPY OF THE COUNTER AFFIDAVIT DATED
                          24-04-2014, FILED BY THE 5TH RESPONDENT IN
                          WP(C) NO. 2152 OF 2014 WITHOUT EXHIBITS

EXHIBIT P5                A TRUE COPY OF THE JUDGMENT DATED 12-10-2015
                          IN WP(C) NO. 2152 OF 2014

EXHIBIT P6                A TRUE COPY OF THE ORDER DATED 04-12-2015 IN
                          R.P NO. 1124 OF 2015

EXHIBIT P7                A TRUE COPY OF THE JUDGMENT DATED 17-03-2016
                          IN W.A NO. 468 OF 2016.

EXHIBIT P8                A TRUE COPY OF THE REFERENCE ORDER DATED 05-
                          07-2019 IN COC NO. 1529

RESPONDENTS EXHIBITS:

EXT.R3(F): COPY OF THE COVERING LETTER NO. 1/2021-22 DATED 16/5/2021 SENT BY THE THIRD RESPONENT TO THE ADDITIONAL REGISTRAR/SECRETARY OF THE 4TH RESPONDENT ALONG WITH PENSION DOCKET,RELEVANT PAGES OF SERVICE BOOK, BANK PASS BOOK, DECISION NO. 5 DATED 10/5/2021 OF THE MANAGING COMMITTEE OF THE SECOND RESPONDENT, DECISION NO.67 DATED 31/01/2016 OF THE MANAGING COMITEE OF THE SECOND RESPONDENT, DETAILS OF THE PAY FOR ASCERTAINING EMPLOYERS CONTRIBUTION (FORM NO. 3) REQUISITION FOR REGISTRATION (FORM NO.1) DETAILS OF PAYMENT OF PENSIN CONTRIBUTION.

EXT.R3(G): COPY OF THE ACKNOWLEDGMENT CARD

EXT.R3(H) : COPY OF DEMAND NOTICE DATED 26/6/2021 ISSUED BY THE PENSION FUND INSPECTOR OF THE 4TH RESPONDENT ALONG WITH CALCULATION OF PENSION FUND ARREARS

EXT.R3(I) : COPY OF PAY-IN-SLIP DATED 9/7/2021 EVIDENCING PAYMENT OF RS.215464/-

EXT.R3(J) : COPY OF THE RELEVANT PORTION OF MINUTES OF THE MEETING HELD ON 28/4/2021 SHOWING DECISION NO.2 AND 3 (A)

EXT.R3(K) : COPY OF MINUTES OF THE MEETING HELD ON 29/6/2021 SHOWING DECISION NO.28