The Kundara Ksheera Vyavasaya ... vs The District Collector
2022 Latest Caselaw 6454 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
                       WP(C) NO. 14514 OF 2021
PETITIONERS:

    1     THE KUNDARA KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD
          NO.Q88(D), KUNDARA P.O., KOLLAM DISTRICT, REPRESENTED
          BY ITS SECRETARY.

    2     THE MANAGING COMMITTEE OF THE KUNDARA KSHEERA VYAVASAYA
          CO-OPERATIVE SOCIETY LTD NO.Q88(D), REPRESENTED BY ITS
          PRESIDENT, KUNDARA P.O., KOLLAM DISTRICT-691 501.

          BY ADVS.GEORGE SEBASTIAN
          M.AJITH (KARICODE)


RESPONDENTS:

    1     THE DISTRICT COLLECTOR,
          CIVIL STATION, KOLLAM-691 013.

    2     THE TAHSILDAR, REVENUE RECOVERY,
          TALUK OFFICE, KOLLAM-691 001.

    3     THE VILLAGE OFFICER, MULAVAN VILLAGE OFFICE,
          KUNDARA P.O., KOLLAM-691 501.

    4     THE KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD,
          PB NO.85, CHINMAYA LANE, KUNNUMPURAM,
          THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS
          SECRETARY.

    5     K.S.RAJU, S/O.K.P.SREEDHARAN, AKANAZHIKA, ELAMPALLOOR,
          KUNDARA P.O., KOLLAM-691 501.

          BY ADVS.M.SASINDRAN
          T.R.HARIKUMAR
          ARJUN RAGHAVAN
          SMT.RESMI THOMAS -GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14514 OF 2021
                                    -2-

                               JUDGMENT

The Kundara Ksheera Vyavasaya Co-operative

Society Ltd., which is stated to be a Society

operating under the provisions of Kerala Co-

operative Societies Act and the Rules thereunder

(hereinafter referred to as the 'KCS Act' and 'KCS

Rules', respectively) and its Managing Committee,

have approached this Court assailing Exts.P4, P7,

P13, P14 and P15 proceedings issued by the 4 th

respondent - Kerala State Co-operative Employees'

Pension Board ('Pension Board', for short)

computing an amount of Rs.7,27,901/- to be the

quantum of contribution to be made by them to its

Fund, in order to honour the claim of pension to

the 5th respondent, who was their earlier

Secretary.

2. Sri.George Sebastian - learned counsel

appearing for the petitioners, argued that the

quantification through the impugned orders is WP(C) NO. 14514 OF 2021

illegal and impermissible, particularly when it

has been settled without any enquiry, as is

mandated under Clause 38 of the Kerala Co-

operative Societies Employees Self Financing

Pension Scheme ('Scheme', for short). He pointed

out that it is without contest that no such

enquiry was conducted prior to the issuance of

Exts.P4 and P7 demands; and that this is crucial

in this case, because the amounts reflected

therein is so high that it will obliterate the

very existence of the Society, which is now going

through extreme financial crisis.

3. The learned counsel then explained that

5th respondent was the erstwhile Secretary of the

Society and that he was succeeded by his wife,

thus unfortunately that, for the entire period

when both of them were in service, the Society was

kept under dark as to the attributes of the

service benefits of the 5th respondent. He thus WP(C) NO. 14514 OF 2021

prayed that the impugned orders and demands be set

aside and the Pension Board be directed to conduct

an enquiry under Clause 38 of the "Scheme", as is

mandated under law.

4. In response to the afore submissions,

Sri.Arjun Raghavan - learned counsel appearing for

the 5th respondent, submitted that they are wholly

untenable because, as is evident from Ext.P6

judgment delivered by this Court in the earlier

round of litigation, namely W.P.(C)No.11591/2019

filed by his client, the Pension Board was

directed to take all necessary action after

hearing both sides and to thus complete the

computation of the quantum of contribution. He

submitted that it is in such manner that the

Pension Board has now issued the impugned demands;

thus praying that this writ petition be dismissed.

5. Sri.Sreehari Indukaladharan - learned

counsel representing the learned Standing Counsel WP(C) NO. 14514 OF 2021

for the Pension Board, affirmed that the impugned

demands were issued after following the directions

of this Court in Ext.P6 judgment implicitly; but,

to a pointed question from this Court, conceded

that computation was made on the basis of the

records furnished by the Society, without giving

them an opportunity of being heard. He contended

that denial of such opportunity was not on account

of any reason which can be attributed to his

client, because they had issued notices to the

Society under Clause 38 of the "Scheme", which

they had not responded to. He argued that,

therefore, his client could have only issued the

impugned demands in the manner as they are

presently settled.

6. As an alternative submission, Sri.Sreehari

Indukaladharan submitted that if this Court is

inclined to hold otherwise, then the Pension Board

is willing to abide by it and to conduct an WP(C) NO. 14514 OF 2021

enquiry under Clause 38 of the "Scheme", provided

the Society co-operates with it fully.

7. When I evaluate the afore submissions, it

is without doubt that the present demands made

against the Society are based on certain documents

placed before the competent Authority of the

Pension Board. Of course it is the specific case

of the Pension Board, as I have recorded above,

that the Society did not respond to the notices

issued to them under Clause 38 of the "Scheme";

and therefore, normally, this Court need not have

given them any further lenitude.

8. However, since this issue is also disputed

and since the Pension Board says that they are

willing to conduct an enquiry if the Society Co-

operates, I am certain that such an opportunity

ought to be granted.

Resultantly, I order this writ petition and

set aside the impugned demands; with a WP(C) NO. 14514 OF 2021

consequential direction to the Pension Board to

conduct an enquiry as postulated under Clause 38

of the "Scheme", after hearing the Society, as

also the 5th respondent; thus culminating in an

appropriate order and necessary computation, as

expeditiously as is possible, but not later than

two months from the date of receipt of a copy of

this judgment.

In order to obtain an expeditious compliance

of the afore directions, I order the petitioners,

as also the 5th respondent, to appear before the

competent Authority of the Pension Board at

11 a.m. on 24.06.2022; on which day, said

Authority will either hear them or fix another

convenient date for such purpose, but issue final

orders, as directed above, within the afore time

frame.

Needless to say, as a corollary to the afore

directions, I clarify that all recovery action WP(C) NO. 14514 OF 2021

against the Society, based on the impugned

notices, will stand ceased; but that the Pension

Board will be at liberty to initiate fresh action,

based on the orders to be issued in terms of the

afore directions, following due procedure.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 14514 OF 2021

APPENDIX OF WP(C) 14514/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 11.01.2017 IN WPC NO.33008=9/2015 OF THIS HON'BLE COURT.

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 01.06.2017 IN IA NO.1460/2017 IN WPC NO.33009/2015.

EXHIBIT P3 TRUE COPY OF THE PAY IN SLIP DATED 31.07.2017.

EXHIBIT P4 TRUE COPY OF THE DEMAND NOTICE DATED 28.06.2018 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER.

EXHIBIT P5 TRUE COPY OF THE TREATMENT CERTIFICATE DATED 22.01.2020 ISSUED FROM N.S.MEMORIAL INSTITUTE OF MEDICAL SCIENCE, KOLLAM.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 04.06.2019 IN WPC NO.11591/2019.

EXHIBIT P7 TRUE COPY OF THE NOTICE UNDER CLAUSE 38 OF THE KERALA CO-OPERATIVE SOCIETIES EMPLOYEES' SELF FINANCING PENSION SCHEME DATED 25.06.2018 ISSUED BY 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE AUDIT CERTIFICATE FOR 2015-16 DATED 17.10.2019 SHOWING THE AMOUNT REALIZABLE FROM THE 5TH RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE MASS COMPLAINT DATED 08.11.2020 GIVEN BY SUPPLIES OF MILK.

EXHIBIT P10 TRUE COPY OF THE DECISION NO.70 OF THE SOCIETY DATED 25.07.2019.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN CCC 938/2020 IN WPC NO.11591/2019 DATED 30.09.2020.

EXHIBIT P12 TRUE COPY OF THE WRITTEN SUBMISSION AND WP(C) NO. 14514 OF 2021

POSTAL RECEIPT SENT TO 4TH RESPONDENT BY PRESIDENT OF THE SOCIETY DATED 05.09.2019.

EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 21.01.2021 UNDER SECTION 7 OF THE KERALA REVENUE RECOVERY ACT.

EXHIBIT P14 TRUE COPY OF THE NOTICE DATED 23.01.2021 UNDER SECTION 34 OF THE KERALA REVENUE RECOVERY ACT.

EXHIBIT P15 TRUE COPY OF THE NOTICE DATED 30.04.2021 ISSUED BY 2ND RESPONDENT UNDER SECTION 36 OF THE KERALA REVENUE RECOVERY ACT.

EXHIBIT P16 A TRUE COPY OF THE JUDGMENT IN RP 501/2021 IN W.P.(C)NO.11591/2019 DATED 3.8.2021.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE