K.C. Kuriakose vs The Secretary, Kerala State Co ...
2022 Latest Caselaw 8478 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                    &

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

                         WP(C) NO. 13264 OF 2018

PETITIONER/S:

            K.C. KURIAKOSE
            AGED 66 YEARS
            S/O.KORA CHERIA,DEEPTHI,D22,ARCHANA NAGAR,PONGUMOODU,
            MEDICAL COLLEGE (P.O), THIRUVANANTHAPURAM.
            BY ADVS.
            SRI.GOPAKUMAR R.THALIYAL
            SRI.M.S.VIJAYACHANDRAN BABU


RESPONDENT/S:

     1      THE SECRETARY, KERALA STATE CO OPERATIVE EMPLOYEES PENSION
            BOARD
            KALA NIVAS, CHINMAYA LANE,KUNNUMPURAM, NEAR AYURVEDA
            COLLEGE,THIRUVANANTHAPURAM, PIN-695 011.
     2      THE MANAGING DIRECTOR
            KERALA STATE CO-OPERATIVE BANK LIMITED,PALAYAM,
            THIRUVANANTHAPURAM, PIN 695 033.
     3      THE KERALA LOK AYUKTA
            REPRESENTED BY ITS REGISTRAR,THIRUVANANTHAPURAM,
            PIN 695 033.
            BY ADVS.
            R1 BY SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE
            EMPLOYEES PENSION BOARD
            R2 BY SRI.GILBERT GEORGE CORREYA



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

     06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 13264/2018                 :2:




              S. MANIKUMAR, CJ & SHAJI P. CHALY, J.
           ---------------------------------------------------------
                        W.P.(C) No. 13264 of 2018
            ---------------------------------------------------------
               Dated this the 6th day of July, 2022.

                                JUDGMENT

S. MANIKUMAR,CJ.

Instant appeal is filed challenging Ext. P6 order dated

16.11.2017 passed by the Kerala Lok Ayukta denying arrears of

pension and interest.

2. The writ petitioner entered the service of the Kerala State Co-

operative Bank on 15.02.1979. He attained the age of superannuation

on 31.01.2010. While he was working as the Senior Manager, on the

basis of a complaint submitted by one Ravindran, the Managing

Director of the Kerala State Co-operative Bank Ltd., respondent No.2,

has initiated disciplinary action against him, after suspending him from

service on 01.06.2007. Dissatisfied with the explanation submitted by

the petitioner against the memo of charges, a domestic enquiry was

ordered to be conducted. Based on the same, there was a proposal to

dismiss the writ petitioner from service. The Enquiry Officer has

submitted a report in favour of the Bank. Being aggrieved, he has

approached the Arbitration Court by filing ARC No. 69 of 2009 and

obtained a stay.

3. Pending disposal of the said proceedings, writ petitioner

superannuated from service on 31.01.2010. According to the writ

petitioner, as per clause 11(2) of the State Co-operative Bank and

District Co-operative Bank Employees Self Financing Pension Scheme,

2005 ('Scheme, 2005' for short), a person against whom department

or judicial proceedings are pending at the time of retirement, is eligible

for provisional pension not exceeding 2/3rd of the maximum pension.

Being aggrieved by the inaction on the part of respondents 1 and 2 in

denying the same, the writ petitioner filed Ext. P1 complaint before the

Lok Ayukta, Thiruvananthapuram seeking the following reliefs:

1. To conduct a detailed investigation into the inactions on the p art

of the respondents and to make a report under Section 12(3) of the Kerala Lok Ayukta Act, 1999.

2. To direct the first respondent to sanction and disburse two third pension to the complainant as provided in clause 11(2) of the scheme with effect from 01.02.2010.

3. To direct the respondents to pay pension arrears with effect from 01.02.2010 with interest at a rate of 10% till the date of payment.

4. To direct the respondents to pay cost and compensation for the inordinate delay in issuing two third pension to the complainant.

4. Materials on record discloses that pending disposal of A.R.C.

No. 16 of 2009, the writ petitioner has filed Complaint No.626/2016-C

before the Lok Ayukta. Pursuant to the direction in Ext. P4 order

dated 22.11.2016 in Complaint No. 626/2016-C by the Kerala Lok

Ayukta, the Managing Director, Kerala State Co-operative Bank

Limited, Thiruvananthapuram, 2nd respondent, had deposited the

provisional pension of Rs.6,26,961/- before the first respondent

pension Board. Thereafter, the Kerala Lok Ayukta, as per Ext. P6

order dated 16.11.2017, closed the complaint holding as follows:

"7. Keeping in view the entire facts and circumstances of the case, particularly the fact that no finality has been achieved as regards the disciplinary proceedings pending against him, the complainant is not entitled to get interest for the alleged delay in deposit of the employer's share of the pension before respondent No.1 Pension Board. Moreover, the calculation statement filed by respondent No.2 would indicate that arrears of pension contribution had been deposited before the Pension Board with proportionate interest. In any view of the matter, I am not inclined to allow the prayer for award of interest as claimed by the complainant.

Complaint is closed."

5. Going through the impugned Ext. P6 order dated 16.11.2017

in Complaint No. 626/2016-C, it could be deduced that the

complainant/writ petitioner, former Manager of the Palakkad Branch of

the Kerala State Co-operative Bank Ltd., was placed under suspension

with effect from 01.06.2007, pending enquiry, on certain charges of

misappropriation, misconduct etc. In the enquiry, the charges levelled

against him were found to be true and accordingly, the Disciplinary

Committee of the Bank has accepted the findings of the Enquiry Officer

and made a proposal to dismiss him from service. Being aggrieved, the

complainant/writ petitioner has approached the Co-operative

Arbitration Court under Section 69 of the Kerala Co-operative Societies

Act, 1969 by filing ARC No. 16 of 2009.

6. Having regard to the date of superannuation of his service on

31.01.2010 and non-payment of provisional pension as per clause

11(2) of the Scheme, 2005, the Lok Ayukta has passed Ext. P4 interim

order dated 22.11.2016 directing the second respondent to start

processing of issuing of provisional pension as mandated under Clause

11(2) of the Scheme, 2005. Accordingly, the Managing Director of the

Kerala State Co-operative Bank Ltd., respondent No.2, has deposited a

sum of Rs. 6,26,961/- before the Secretary, Kerala State Co-operative

Employees Pension Board, respondent No.1.

7. Even though the complainant/writ petitioner has sought for

grant of interest on the delayed payment of the provisional pension,

which according to the writ petitioner was due from 2010 onwards,

taking note of the stand of the Managing Director of the Kerala State

Co-operative Bank Ltd., respondent No.2, that there is no wilful refusal

or laches either in processing or paying the provisional pension to the

complainant, Lok Ayukta has passed Ext. P6 order.

8. From the materials on record, it could be further deduced

that though the writ petitioner/complainant has relied upon clause

11(2) of the Scheme, 2005, the arbitration proceedings said to have

been initiated in the year 2009 in ARC No. 16 of 2009 is stated to be

still pending. Further, the decision of the Additional Chief Secretary to

Government directing the Managing Director of the Kerala State Co-

operative Bank Ltd., respondent No.2, has not been challenged. The

Managing Director of the Kerala State Co-operative Bank, respondent

No.2, has only complied with the direction of the Additional Chief

Secretary to Government and therefore, no mal administration can be

attributed on the part of the Managing Director of the Kerala State Co-

operative Bank, respondent No.2 in withholding the pensonary benefits

due to the complainant/writ petitioner pending disposal of the

arbitration proceedings.

9. The letter of the Additional Chief Secretary to Government,

Department of Co-operation, Government of Kerala, to the Managing

Director of the Kerala State Co-operative Bank Ltd., respondent No.2,

to withhold all the pensionary benefits due to the complainant till the

disposal of the complaint pending before the Arbitration Court, has

been acted upon, and therefore, there is no mal administration or

intentional withholding of the provisional pension. No sooner Ext. P4

interim order dated 22.11.2016 has been passed by the Lok Ayukta

directing to start processing of grant of provisional pension to the

complainant/writ petitioner.

10. Considering the facts and circumstances, we are not inclined

to interfere with Ext. P6 order dated 16.11.2017 in Complaint No.

626/2016 C. Accordingly, this writ petition is dismissed.

However, it is made clear that as the arbitration proceedings in

A.R.C. No. 16 of 2009 is stated to be pending for merely 13 years,

parties are at liberty to move the Arbitrator for early disposal of the

said proceedings.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

Sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 13264/2018

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF COMPLAINT FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 24-02-2016. EXHIBIT P2 TRUE COPY OF STATEMENT FILED BY THE 1ST RESPONDENT DATED 03-05-2016.

EXHIBIT P3 TRUE COPY OF THE STATEMENT FILED BY THE 2ND RESPONDENT DATED 04-07-2016.

EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER PASSED BY THE 3RD RESPONDENT DATED 22-11-2016.

EXHIBIT P5 TRUE COPY OF THE STATEMENT SUBMITTED BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 16-11-2017.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS To Judge.

rv