S.M.Mohandas vs Pallikal Service Co Operative ...
2022 Latest Caselaw 8734 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
              THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
         THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                         WP(C) NO. 23968 OF 2020
PETITIONER:

              S.M.MOHANDAS
              AGED 64 YEARS
              S/O. BHSKARAKURUP, RESIDING AT PUTHIYAMKOLIL HOUSE,
              KARRADPARAMBU (P.O), VIA FAROOK COLLEGE, KOZHIKODE-673
              632

              BY ADVS.
              SUMATHY DANDAPANI (SR.)
              SRI.MILLU DANDAPANI



RESPONDENTS:

     1        PALLIKAL SERVICE CO OPERATIVE BANK
              P.O.PALLIKAL, VIA CHELEMBRA, MALLAPURAM DISTRICT-673 634,
              REPRESENTED BY ITS PRESIDENT

     2        THE MANAGING COMMITTEE,
              PALLIKAL SERVICE CO-OPERATIVE BANK, P.O.PALLIKAL VIA
              CHELEMBRA, MALLAPURAM-673 634, REP BY ITS CHAIRMAN

     3        JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
              KERALA ,UP-HILL, MALAPPURAM-676 505

     4        THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD,
              KALA NIVAS, T.C.NO.27/156,157, NEAR AYURVEDA COLLEGE,
              KUNNUMPURAM, THIRUVANANTHAPURAM-695 001, REP BY ITS
              SECRETARY

              BY ADVS.
              SRI.B.SAJEEV KUMAR
              SRI.M.SASINDRAN
              SRI.THOMAS JOHN AMBOOKEN
              SMT.BLOSSOM MATHEW



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                   2



W.P.(C)No. 23968 of 2020.




                            JUDGMENT

Dated this the 7th day of July, 2022.

The only relevant question in this case now survives

is whether petitioner is entitled to pension under the

Kerala Co-operative Employees Pension Scheme, 1994,

(hereinafter referred to as the "Pension Scheme" for

short).

2. The facts are not in dispute. The petitioner

was proceeded against disciplinarily while he was serving

the Pallikal Service Co-operative Bank Ltd (hereinafter

referred to as 'Bank' for short), which finally ended up in

the Hon'ble Supreme Court, culminating in Exts.P3 and

P4 orders. The Hon'ble Supreme Court substituted the

W.P.(C)No. 23968 of 2020.

punishment of "dismissal" imposed upon the petitioner

with "compulsory retirement", but did not stop there. It

went on to say that "the employee (the petitioner herein)

would be entitled for the retiral benefits" . The question,

therefore, is whether petitioner is entitled to pension

also, it being a component of the retiral benefits.

3. Smt.Sumathi Dandapani, learned Senior

Counsel, instructed by Sri.Millu Dandapani - learned

counsel for the petitioner, argued that when the Hon'ble

Supreme Court ordered that her client is entitled to

retiral benefits, it means pension also. She submitted

that, instead of this, the Society has only given the other

benefits, but without remitting the contribution

necessary under the "Pension Scheme" to the Pension

Board, except for the purpose of compassionate

W.P.(C)No. 23968 of 2020.

allowance. The learned Senior Counsel submitted that

this is per se illegal and, therefore, that respondents are

liable to be directed by this Court to ensure that her

client obtains eligible pension, based on the punishment

of "Compulsory Retirement", ordered by the Hon'ble

Supreme Court.

4. Sri.B.Sajeevkumar - learned counsel appearing

for the Society, submitted that, going by his client's

approved Bye-Laws, when an employee is imposed with

the punishment of "compulsory retirement", he would

not get pension, but only compassionate allowance. He

submitted that this is exactly what his client has done

and that the contribution for the same has also been

made to the Pension Board. He, therefore, prayed that

this writ petition be dismissed; adding that every other

W.P.(C)No. 23968 of 2020.

retiral benefit has been paid and disbursed to the

petitioner.

5. Sri.M.Sasindran - learned Standing Counsel for

the Pension Board, submitted that they have only gone

by the contribution made by the Society and that since

they confined it for the purpose of compassionate

allowance alone, the petitioner has been disbursed the

same. He added that if the Society is directed to remit

contribution for regular pension, same will be accounted

for and necessary action for disbursement of the same

will be taken without any further delay.

6. When I consider the afore submissions, it is

inevitable that the stand of the Society, as made afore, is

not what they had adopted on an earlier occasion. This

is evident from Ext.P6, whereby, its President addressed

W.P.(C)No. 23968 of 2020.

the petitioner saying that he is entitled to pension under

the Pension Scheme and that an application for the same

can also be made. It appears that petitioner made his

application in such manner, but that their stand was

altered by the Bank to say that he would be entitled only

to compassionate allowance.

7. Therefore, the acme question is: what is the

impact of the orders of the Hon'ble Supreme Court. The

said orders specifically directs that petitioner is entitled

to all retiral benefits without exception, which indubitably

will take in pension also. Otherwise, the Hon'ble

Supreme Court would not have used those words, but

would have ended its order saying that petitioner's

punishment is substituted as "compulsory retirement",

with all necessary consequences to follow.

W.P.(C)No. 23968 of 2020.

8. Therefore, in that perspective, the attributes of

a "compulsory retirement" under the Bye-Laws of the

Society would be of no relevance at all because, when

the Supreme Court says that, notwithstanding such a

punishment, petitioner is entitled to retiral benefits, they

were obliged to comply with the same. Their action in

interpreting the orders of the Hon'ble Supreme Court in

the manner which suits them, is certainly

impermissible.

In the afore circumstances, I am certain that this

writ petition is deserving of being allowed and I do so,

with the following directions.

(a) Respondents 1 and 2 will calculate the amount

of contribution as is necessary for the purpose of availing

pension by the petitioner and shall remit the same to the

W.P.(C)No. 23968 of 2020.

Pension Board as expeditiously as is possible but not

later than two months from the date of receipt of a copy

of this judgment.

(b) On the afore contribution being made, the

Pension Board will calculate whether it is apposite and if

not, intimate the Society for any additional payment, as

may be found necessary.

(c) On the remittance so being made by the

Society - either fully or substantially, the full or prorata

pension, as the case may be, will be disbursed by the

Pension Board to the petitioner within a period of one

month from the date on which such remittance is made.

(d) If the Pension Board is to find that any

additional contribution is to be made by the Society and

they do not accede to the same, all necessary action

W.P.(C)No. 23968 of 2020.

under Clause 35 of the "Pension Scheme" will be taken

forward, including for the purpose of recovery through

the Kerala Revenue Recovery Act, 1968.

If the afore directions are complied with in its

entirety, then this Court makes it clear that the question

of interest is left open to be pursued by the Petitioner

appropriately before the Jurisdictional Forum; but if it is

to the contrary, then the said sums will carry interest at

the rate of 6% from the date on which it became eligible,

until it is actually paid.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Raj/07.07.2022.

W.P.(C)No. 23968 of 2020.

APPENDIX OF WP(C) 23968/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMMON JUDGMENT DATED 19.11.2013 IN WPC NO.15107/2012 AND WPC 16182/2017 EXHIBIT P2 TRUE COPY OF THE COMMON JUDGMENT DATED 17.11.2016 IN WA NO.1502/2014 AND WA NO.1659/2014 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 27.04.2018 OF THE HON'BLE SUPREME COURT IN SLP(C) NO.6507/2017 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 27.04.2018 OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.4565/2018 EXHIBIT P5 THE TRUE COPY OF THE REPRESENTATION DATED 08.10.2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P6 THE TRUE COPY OF THE LETTER DTD NIL ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION DATED 16.12.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE LETTER DATED 30.07.2020 ISSUED BY THE 1ST

W.P.(C)No. 23968 of 2020.

RESPONDENT TO THE PETITIONER EXHIBIT P9 TRUE COPY OF THE STATEMENT ISSUED BY THE SECRETARY OF THE RESPONDENT BANK DATED NIL.

EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF THE PENSION BOOK ISSUED BY THE 4TH RESPONDENT.