Kerala High Court

Sri. A.K.Purushothaman vs The Kannur District Co-Operative ... on 19 November, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
    FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
                       WP(C) NO. 11877 OF 2020
PETITIONER:

          SRI. A.K.PURUSHOTHAMAN,
          AGED 60 YEARS
          S/O. LATE RAGHAVAN NAMBIAR, VANAMALA MUNDAYAD P.O.
          KANNUR DISTRICT 670 594.

          BY ADVS.
          VIJU THOMAS
          SMT.M.MEENA JOHN


RESPONDENTS:

    1     THE KANNUR DISTRICT CO-OPERATIVE BANK
          (PRESENTLY THE KERALA STATE CO-OPERATIVE BANK),
          REP. BY THE REGIONAL MANAGER, KANNUR DISTRICT 670 001.

    2     THE MANAGING DIRECTOR,
          THE KERALA STATE CO OPERATIVE BANK, CO-BANK TOWERS,
          PALAYAM, THIRUVANANTHAPURAM .

    3     THE DIVISIONAL MANAGER,
          L.I.C. OF INDIA, KOZHIKODE DIVISION, DIVISIONAL OFFICE,
          ( P AND GS) DEPARTMENT, 7TH FLOOR, JEEVAN PRAKASH,
          KOZHIKODE 673 001.

          BY ADVS.
          SRI.M.SASINDRAN, SC, KANNUR DISTRICT CO.OPERATIVE BANK
          SRI.M.SASINDRAN
          DR.ABRAHAM P.MEACHINKARA, SC, EPF ORG.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.11.2021, ALONG WITH WP(C).11845/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 WP(C)Nos.11877/2020 & 11845/2020
                                    2


                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR. JUSTICE AMIT RAWAL

     FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943

                         WP(C) NO. 11845 OF 2020

PETITIONER:

              P.SIDHARTHAKUMAR
              AGED 61 YEARS
              S/O. LATE GOPALAN NAIR, SIGIL NIVAS, CHETTIPEETIKA,
              PALLIKUNNU P.O.,                           KANNUR, PIN-
              670 004.

              BY ADVS.
              VIJU THOMAS
              SMT.M.MEENA JOHN


RESPONDENTS:

     1        THE KANNUR DISTRICT CO OPERARTIVE BANK
              (PRESENTLY THE KERALA STATE CO-OPERATIVE BANK)
              REPRESENTED BY THE GENERAL MANAGER (I/C),
              DISTRICT OFFICE, P.B.NO.35,
              KANNUR DISTRICT, PIN-670 001.

     2        THE DEPUTY GENERAL MANAGER
              THE KERALA STATE CO-OPERATIVE BANK LTD.,
              HEAD OFFICE, P.B.NO.6515, COBANK TOWERS,
              PALAYAM, THIRUVANANTHAPURAM, PIN-695 028.

     3        THE DIVISIONAL MANAGER
              L.I.C OF INDIA, KOZHIKODE DIVISION,
              DIVISIONAL OFFICE, (P AND GS) DEPARTMENT,
              7TH FLOOR, JEEVAN PRAKASH, KOZHIKODE-673 001.

              BY ADVS.
              SRI.M.SASINDRAN, SC, KANNUR DISTRICT CO.OP. BANK
              SRI.M.SASINDRAN
              DR.ABRAHAM P.MEACHINKARA



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

19.11.2021, ALONG WITH WP(C).11877/2020, THE COURT ON THE SAME DAY

DELIVERED THE FOLLOWING:
 WP(C)Nos.11877/2020 & 11845/2020
                                  3


                             JUDGMENT

[WP(C) Nos.11877/2020, 11845/2020]

This order shall dispose of two writ petitions bearing

Nos.11877/2020 and 11845/2020.

2. The case of the petitioners in both the cases is that the

Kannur District Co-operative bank had obtained a Group Gratuity

Cash Accumulation Scheme commenced with effect from

01.08.1972 for the gratuity benefits of their employees as per

terms and conditions of employment. The members covered

under the scheme are only beneficiaries whereas the contract

was between Master Policy holder and LIC. On retirement of the

petitioner in W.P(C).11845/20, respondent released an amount

of Rs.22,84,593/- and the remaining is Rs.2,40,806/- whereas in

W.P(C).11877/20, the amount released to the petitioner therein

is Rs.20,00,000/- and Rs.19,91,944/- is liable to be paid.

Learned counsel for the petitioners submits that the controversy

in this case is covered by the Full Bench judgment of this Court

reported in Chandrasekharan Nair G. & Others v. Kerala

State Co-operative Agricultural and Rural Development

Bank Ltd. & Others [2017 (4) KLT 276]. Even the writ appeal WP(C)Nos.11877/2020 & 11845/2020

No.524/2018 and connected cases were also dismissed relying

upon the Full Bench judgment. The judgment cited by the

respondents in BCH Electric Limited v. Pradeep Mehra [2020

KHC 6365] would not be applicable as it had different terms and

conditions of the contract/master policy. Bank has entered into

new agreement with the LIC only on 10.12.2020 by remitting the

amount of Rs.20,00,000/- but in respect of the old matters, the

amount paid by the LIC to the respective petitioners has been

drawn by the bank.

3. On the other hand Sri.M.Sasindran raised the objection

of maintainability of the writ petitions on account of non-

availment of efficacious remedy under Section 69 of the Kerala

Co-operative Societies Act or under Section 7 of the Payment of

Gratuity Act as limited liability has been paid and the remaining

amount is disputed which cannot be adjudicated under Article

226 of the Constitution of India. Once the employees are covered

under the Act they are entitled to the amount under the Act and

not under the master policy in view of the ratio culled out in the

BCH Electric Limited (supra).

4. I have heard the learned counsel for the parties and WP(C)Nos.11877/2020 & 11845/2020

appraised the paper books.

5. Concededly, in W.P.(C)No.11845/2020 petitioner has

been paid a sum of Rs.22,84,593/- and the balance of

Rs.2,40,806/- is to be paid. This fact has been reiterated by the

learned counsel representing the LIC and in other matter after

having paid Rs.20,00,000/- sum of Rs.19,91,944/- is liable to be

paid as acknowledged by the LIC. I am of the view that the Co-

operative Bank cannot rely upon the terms and conditions of the

new agreement/master policy entered into between the LIC but

the employee would be governed by the old policy where there is

no restriction of the amount of payment of gratuity as fixed under

the Payment of Gratuity Act. In other words, if it all the insurance

amount after receipt of the payment of the amount of gratuity is

more, the State Co-operative Bank cannot limited it to

Rs.20,00,000/- they are liable to pay it either from their own

funds or from what they received from the LIC. In both the cases

the amount has been remitted by the LIC to bank but bank has

refunded back to the LIC. Such an action of the bank is totally

uncalled for arbitrary and illegal for the reason of the dictum laid

down in the Full Bench judgment cited above. WP(C)Nos.11877/2020 & 11845/2020

Accordingly, writ petitions are allowed. Respondent bank is

directed to remit the amount of Rs.2,40,806/- and

Rs.19,91,944/- to the respective petitioners after making request

to the LIC to whom they refunded back. Let the request is made

to the LIC within a period of two weeks from today. Thereafter

the learned counsel representing the LIC submits that they would

remit the amount as expeditiously as possible within a period of

another one month and thereafter, the bank would disburse the

same to the petitioners within another period of 15 days ie., total

period of 45 days. In case, the aforementioned amount after

completion of the formality is not remitted by the bank to the

petitioners, it will entail interest as provided under the Payment

Gratuity Act.

Sd/-

APPENDIX OF WP(C) 11877/2020

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE SAID INTIMATION LETTER NO. PNGS/U585322/3839/879 DATED 22/10/2018 BY THE 3RD RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE REQUEST DATED 2/1/2020 SENT TO THE 2ND RESPONDENT BY REGISTERED POST.

EXHIBIT P3 A TRUE COPY OF THE ACKNOWLEDGEMENT CARD DATED 9/1/2020 RECEIVED FROM THE 2ND RESPONDENT.

EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 11/12/2019 IN WPC NO. 30566/2019 OF HOBLE HIGH COURT OF KERALA.

RESPONDENT EXHIBITS EXHIBIT R3 A TRUE COPY OF THE CLAIM COMMUNICATION REGARDING CLAIM FROM FOR GROUP GRATUITY WITH RESPECT OF PETITIONER FOR THE AMOUNT RS.38,29,372/- SUBMITTED BY THE 1ST RESPONDENT BANK DATED 10.10.2018 EXHIBIT R3 B TRUE COPY OF TRANSFER OF RS.38,29,372/-

WITH RESPECT TO THE PETITIONER'S GRATUITY CLAIM TO THE 1ST RESPONDENT BANK THROUGHT RTGS DATED 22.10.2018 EXHIBIT R3 C TRUE COPY OF ADDITIONAL CLAIM COMMUNICATION REGARDING CLAIM FROM FOR GROUP GRATUITY WITH RESPECT OF PETITIONER FOR THE AMOUNT RS.1,62,572/-

SUBMITTED BY THE 1ST RESPONDENT BANK DATED 1.7.2019 EXHIBIT R3 D TRUE COPY OF TRANSFER OF RS.1,62,575/-

WITH RESPECT TO THE PETITIONER'S GRATUITY CLAIM TO THE 1ST RESPONDENT BANK THROUGHT RTGS DATED 15-7-2019 EXHIBIT R(a): A TRUE COPY OF THE MASTER POLICY NO.G1 3839.

EXHIBIT R1(b): A TRUE COPY OF THE DEED OF VARIATION DATED 14/02/1994.

Exhibit R3(E) TRUE COPY OF THE BANK RESOLUTION NO. 890 Exhibit R3(F) TRUE COPY OF THE LETTER FROM DGM, KERALA WP(C)Nos.11877/2020 & 11845/2020

BANK TO THE GENERAL MANAGER, KERALA BANK, KANNUR DATED 19/12/2020 COMMUNICATING THE DECISION FIXING THE GRATUITY CEILING AS RS. 20,00,000/- Exhibit R3(G) TRUE COPY OF THE LETTER DATED 09/12/2020 FROM GENERAL MANAGGER, KERALA BANK ADDRESSED TO LIC OF INDIA COMMUNICATING THIS DECISIONAND REQUESTING THE LICE TO INCORPORATE THEIR DECISION OF FIXING THE GRATUITY CEILING OF RS.20,00,000/- AS PER CENTRAL GRATUITY ACT INSTEAD OF THE EXISTING UNLIMITED PATTERN, FOR ALL MEMBERS Exhibit R(H) TRUE COPY OF THE DETAILED LIST OF ALL CLAIM SETTLED TO THE 1ST RESPONDENT BANK AS PER THEIR DEMAND IN RESPECT OF THE EMPLOYEES WHO RETIRED FOR THE PERIOD FROM 01/08/2018 TO 31/07/2019 Exhibit R(I) TRUE COPY OF THE LETTER DATED 18/08/2020 OF THE 1ST RESPONDENT BANK ADDRESSED TO THE 3RD RESPONDENT LIC REMITTING EXCESS AMOUNT OF RS.53,08,176/- TO THE LIC GGCA SCHEME POLICY NO. GGCA 3839, AS THE EXCESS GRATUITY RECEIVED PETITIONER EXHIBITS Exhibit P5 A TRUE COPY OF THE PROCEEDING NO.KNR/RO/HR/PAY REVISION/2021-22 DATED 23/3/2021 OF THE GENERAL MANAGER, KERALA BANK, KANNUR Exhibit P6 A TRUE COPY OF THE REQUEST DATED 18/9/2021 SUBMITTED BEFORE THE 1ST RESPONDENT BANK.

APPENDIX OF WP(C) 11845/2020

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE REQUEST DATED 19/06/2018 SUBMITTED BY THE PETITIONER EXHIBIT P2 A TRUE COPY OF THE INTIMATIN DATED 29/2/20 RECEIVED BY THE PETITIONER EXHIBIT P3 A TRUE COPY OF THE INTIMATION LETTER NO.A & F/2019-20 DATED 10/03/2020 RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT BANK EXHIBIT P4 A TRUE COPY OF THE ORDR NO.KSCB/(P&E)/85 DATED 05/05/2020 ISSUED TO THE 1ST RESPONDENT BANK BY THE 2ND RESPONDENT EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 11/12/2019 IN WP/9C) NO.30566/2016 OF HON'BLE HIGH COURT OF KERALA

RESPONDENT EXHIBITS EXHIBIT R3 A TRUE COPY OF THE CLAIM COMMUNICATION REGARDING CLAIM FROM FOR GROUP GRATUITY WITH RESPECT OF PETITIONER FOR THE AMOUNT RS.22,84,593/- SUBMITTED BY THE 1ST RESPONDENT BANK DATED 20.04.2017 EXHIBIT R3 B TRUE COPY OF TRANSFER OF RS.22,84,593/-

WITH RESPECT TO THE PETITIONER'S GRATUITY CLAIM TO THE 1ST RESPONDENT BANK THROUGHT RTGS DATED 25.4.2017 EXHIBIT R3 C TRUE COPY OF ADDITIONAL CLAIM COMMUNICATION REGARDING CLAIM FROM FOR GROUP GRATUITY WITH RESPECT OF PETITIONER FOR THE AMOUNT RS.2,40,806/-

SUBMITTED BY THE 1ST RESPONDENT BANK DATED 24.10.2017 EXHIBIT R3 D TRUE COPY OF TRANSFER OF RS.2,40,806/-

WITH RESPECT TO THE PETITIONER'S GRATUITY CLAIM TO THE 1ST RESPONDENT BANK THROUGHT RTGS DATED 4-11-2017 EXHIBIT R(a): A TRUE COPY OF THE MASTER POLICY NO.G1 3839.

EXHIBIT R1(b): A TRUE COPY OF THE DEED OF VARIATION DATED 14/02/1994.

Exhibit R3(E) TRUE COPY OF THE BANK RESOLUTION NO. 890 WP(C)Nos.11877/2020 & 11845/2020

Exhibit R3(F) TRUE COPY OF THE LETTER FROM DGM, KERALA BANK TO THE GENERAL MANAGER, KERALA BANK, KANNUR DATED 9/12/2020 COMMUNICATING THE DECISION FIXING THE GRATUITY CEILING AS RS. 20,00,000/- Exhibit R3(G) TRUE COPY OF THE LETTER DATED 10/12/2020 FROM GENERAL MANAGGER, KERALA BANK ADDRESSED TO LIC OF INDIA COMMUNICATING THIS DECISION AND REQUESTING THE LICE TO INCORPORATE THEIR DECISION OF FIXING THE GRATUITY CEILING OF RS.20,00,000/- AS PER CENTRAL GRATUITY ACT INSTEAD OF THE EXISTING UNLIMITED PATTERN, FOR ALL MEMBERS Exhibit R3(H) TRUE COPY OF THE DETAILED LIST OF ALL CLAIM SETTLED TO THE 1ST RESPONDENT BANK AS PER THEIR DEMAND IN RESPECT OF THE EMPLOYEES WHO RETIRED FOR THE PERIOD FROM 01/08/2016 TO 31/07/2017 Exhibit R3(I) TRUE COPY OF THE LETTER DATED 27/05/2020 OF THE 1ST RESPONDENT BANK ADDRESSED TO THE 3RD RESPONDENT LIC REMITTING EXCESS AMOUNT OF RS.2,40,806/- OF SHRI SIDHARTHA KUMAR TO THE GRATUITY POLICY NO. GGCA 3839 PETITIONER EXHIBITS Exhibit P6 A TRUE COPY OF THE PROCEEDING NO.KNR/RO/HR/PAY REVISION/2021-22 DATED 23/3/2021 OF THE GENERAL MANAGER, KERALA BANK, KANNUR Exhibit P7 A TRUE COPY OF THE REQUEST DATED 20/9/2021 SUBMITTED BEFORE THE 1ST RESPONDENT BANK.