Karavaram Panchayath Service ... vs Kerala Co-Operative Ombudsman, ...
2022 Latest Caselaw 9186 Ker

                        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

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

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

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

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

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

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

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

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

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)