Dr. Dinesan V.P vs Kerala State Council For Science, ...
2022 Latest Caselaw 11438 Ker

                       A.K.JAYASANKARAN NAMBIAR
                                               &
                           MOHAMMED NIAS C.P., JJ
                  ............................................................

              Writ Appeal Nos. 1551, 1557, 1562,1564,
           1581 & 1587 and Writ Appeal No. 1595 of 2022
               ..................................................................

                   Dated this the 5th day of December, 2022


                                      JUDGMENT

Mohammed Nias.C.P.J.,

These Writ Appeals are filed by the Shornur Co-operative

Service Bank ("Society" for short) impugned in the judgment against

the judgment of the learned Single Judge in a batch of petitions filed

by the employees of the Society seeking for a direction to the Society

as well as to the Pension Board to take necessary steps to ensure that

the pension in terms of the provisions of the Kerala Co-operative

Societies Act, 1969 and the Scheme thereon is granted to them and

also seeking for a direction to declare that the employees, the writ

petitioners are entitled for pension in terms of the provisions of the

Kerala Co-operative Societies Act and the Scheme and also for a

mandamus to the respondents to include the society and the Pension

Board to grant the same.

Writ Appeal Nos. 1551, 1557, 1562,1564, 1581 & 1587 and Writ Appeal No. 1595 of 2022

2. The writ petitioners had retired from the service of the

appellant society before 3-6-1993, on which date the Kerala Co-

operative Societies Employees Self Financing Scheme, 1994 ("the

Scheme" for short ) came into force. The petitioners requested for

getting enrolled in the said Scheme in terms of the stipulations therein

and has no action has been taken to do so, they approached the

Co-operative Arbitration Court.

3. The Society in the written statement filed before the

Arbitration Court inter alia contended that the writ petitioners were

ineligible for pension as they were not applied for joining the Scheme

and the remedy to take such steps in case, the writ petitioners are

willing join the Scheme.

4. The Co-operative Arbitration Court found that the Scheme

was introduced in the year 1994 for the welfare of the employees and

therefore, held that the writ petitioners were entitled to the benefits of

the Scheme on them remitting the employers portion of the contribution

as stipulated in the Scheme. The Society had challenged the order of

the Arbitration Court before the Co-operative Tribunal which allowed

the appeal and held that the writ petitioners were not eligible for

pension from the second respondent Pension Board as they are not

submitted the formal application in terms of paragraph 27 of the

Scheme and the application which they had filed cannot be treated as a

Writ Appeal Nos. 1551, 1557, 1562,1564, 1581 & 1587 and Writ Appeal No. 1595 of 2022

substitute for the application to be filed in terms of the Scheme. The

order of the Tribunal was challenged by the employees in the Writ

Petition.

5. Before the learned Single Judge, the writ petitioners

contended that they were willing to as per the mandate of paragraph 27

of the Scheme and thus prayed for setting aside the order of the

Tribunal.

6. On behalf of the Society, it was submitted that unless the writ

petitioners complied with the requirements in paragraphs 18 and 27 of

the Pension Scheme by first closing the pension accounts which they

are empowered and being admitted, they are not entitled to.

7. The learned Standing Counsel appearing for the Pension

Board submitted that the Board does not want to join controversy

between the petitioners and the society and in case the employees abide

to the statutory mandate of the Pension Scheme and take necessary

action as per paragraphs 18 and 27 of the said Scheme by transferring

the necessary contributions to the Pension Board, they will consider

payment of the eligible pension to them.

8. After consideration of the above contentions of the parties, the

learned Single Judge found that since the writ petitioners were

Writ Appeal Nos. 1551, 1557, 1562,1564, 1581 & 1587 and Writ Appeal No. 1595 of 2022

continuing under the Scheme as per the Employees Contributory

Provident Fund, they cannot be admitted to Pension Scheme unless

they take steps as required under paragraph 27 of the Scheme. Taking

that view of the matter, the learned Single Judge, further clarified that

the writ petitioners will be at liberty to take necessary action under

paragraphs 18 and 27 of the Pension Scheme and directed the Society

also to co-operate with the same to forward the pension papers and

dockets to the Pension Board. By the impugned judgment, the learned

single Judge also directed that any amount which is required to be

remitted by the Society, in addition to the Corpus fund to be

transferred from the Employees Provident Fund Scheme to the Pension

Board, shall also be honoured by the statutory mandate. The learned

Single Judge also directed those petitioners who are not within the

Employees Contributory Pension Scheme to be enrolled in the Pension

Scheme like the other writ petitioners.

9. The Society impugns the said directions of the learned Single

Judge, in particular, to one which directs the Society to remit any

amounts in addition to the corpus fund to be transferred to the

Pension Board.

10. The learned counsel appearing for the appellant/Society

argues that there is no such liability under the Scheme and therefore,

such a direction to the society to pay any amounts clearly in which the

Writ Appeal Nos. 1551, 1557, 1562,1564, 1581 & 1587 and Writ Appeal No. 1595 of 2022

scheme. It is the liability of the writ petitioners to comply with the

transfer to the Scheme and not that the society, except forwarding of

the papers of the Pension Board.

On going through the Scheme, we feel that the Society has no

such obligation to make any payments and it is for the employees to

satisfy the conditions in the Scheme, particularly, under paragraphs 18

and 27 of the Scheme. We clarify that the writ petitioners are comply

with paragraphs 18 and 27 of the Scheme or such other applicable

provisions of the Scheme and the Society cannot be directed to make

any contribution. The judgment to that extent is set aside,. The other

directions in the judgment are maintained.

Writ Appeals are allowed to the extent noticed above.

A.K.JAYASANKARAN NAMBIAR, JUDGE

MOHAMMED NIAS C.P., JUDGE

ani/

Writ Appeal Nos. 1551, 1557, 1562,1564, 1581 & 1587 and Writ Appeal No. 1595 of 2022

Writ Appeal Nos. 1551, 1557, 1562,1564, 1581 & 1587 and Writ Appeal No. 1595 of 2022

APPENDIX OF OP(KAT) 398/2022

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE ORDER G.O. (MS) NO.

252/13/G.EDN. DATED 13.09.2013 ISSUED BY THE GOVERNMENT APPOINTING THE APPLICANT AS LAST GRADE SERVANT IN THE GENERAL EDUCATION DEPARTMENT IN KOLLAM DISTRICT.

Annexure A2 TRUE COPY OF THE COMMUNICATION NO A6/22210/2019 DATED 24.12.2019.

Annexure A3 TRUE COPY OF THE REPRESENTATION DATED 18.12.2016 SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT.

Annexure A4 TRUE COPY OF THE LETTER DATED 04.05.2018 SENT BY THE SECRETARY TO GOVERNMENT TO THE 2ND RESPONDENT.

Exhibit P1                   TRUE COPY OF THE O.A. (EKM.) NO. 529/2020
                             FILED BY THE PETITIONER BEFORE        THE
                             KERALA      ADMINISTRATIVE      TRIBUNAL,

THIRUVANANTHAPURAM, ADDITIONAL BENCH AT ERNAKULAM DATED 15.03.2020.

Exhibit P2 TRUE COPY OF THE ORDER DATED 07.11.2022 IN O.A. (EKM.) NO. 529/2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH AT ERNAKULAM.