Nikhila Hemanth.V.S vs The State Of Kerala
2022 Latest Caselaw 7638 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

              TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944

                             WP(C) NO. 30959 OF 2019

PETITIONER:

               NIKHILA HEMANTH.V.S.,
               AGED 32 YEARS
               W/O. LAE HEMANTH, D/O. CHELLAPPAN, PADATHARA, NEAR DEVAMATHA,
               KORATTI P.O., THRISSUR-680 308

               BY ADVS.
               G.SREEKUMAR (CHELUR)
               SHRI.RAPHAEL THEKKAN
               SHRI.RIYAS C.S.



RESPONDENTS:

     1         THE STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF
               COOPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

     2         THE METHALA SERVICE CO OPERATIVE BANK LIMITED NO. R-298
               REPRESENTED BY ITS SECRETARY, HEAD OFFICE, T.K.S PURAM,
               KODUNGALLUR P.O., THRISSUR DISTRICT-680 664

     3         THE JOINT REGISTRAR OF CO OPERATIVE SOCIETIES,
               OFFICE OF THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES,
               IRINJALAKUDA, THRISSUR DISTRICT-680 121

     4         THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIES,
               OFFICE OF THE ASSISTANT REGISTRAR OF CO OEPRATIVE SOCIETIES,
               KODUNGALLUR-680 664

     5         KERALA STATE CO-OEPRATIVE EMPLOYEES PENSION BOARD,
               REPRESENTED BY ITS AUTHORISED OFFICER, KALA NIVAS,
               T.C.NO.27/156, 157,NEARAYURVEDA COLLEGE, KUNNUPURAM,P.B.NO.85,
               THIRUVANANTHAPURAM-695 001

               BY ADVS.
               SRI.A.G.VISWAMBHARAN
               SRI.M.SASINDRAN, SC
               SRI.P.M.ABDUL JALEEL (KODUNGALLUR)
 WP(C) NO. 30959 OF 2019

                                     2




OTHER PRESENT:

            SMT.RESMI THOMAS-GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2022,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 30959 OF 2019

                                      3




                              JUDGMENT

The travails of a widow, who has come knocking the doors of

this Court, cannot be lost sight of, while this judgment is delivered.

2. The petitioner's husband was working as a Peon in the

services of the second respondent - Co-operative Bank (for short 'the

Society'). He unfortunately died, plunging the petitioner into

extreme crisis.

3. Even though some of the retiral benefits eligible to her

husband were disbursed to the petitioner, some portions thereof were

adjusted against an alleged overdraft which he had availed at the

time when he was in service. In addition, amounts received by the

Society from the Life Insurance Corporation of India (LIC) under a

Group Gratuity Scheme into the credit of the petitioner's husband,

was also not fully released on the ground that, as per the applicable

Rules and Regulations, he would not have been eligible to the same

and consequently that it cannot be paid to her.

4. To make matters worse, when the petitioner applied for

appointment in the services of the Society under the dying

harness/compassionate scheme, it was not acceded to solely on the

ground that she had not obtained and produced a No Objection

Certificate from the other legal heirs of her husband, namely his aged WP(C) NO. 30959 OF 2019

mother and father.

5. As the final blow, the pension eligible to the petitioner, to be

paid by the fifth respondent - Pension Board, has also been denied to

her for the reason that she did not produce a consent letter from her

husband's legal heirs.

6. Without need to say so, the petitioner has been certainly

pushed to a corner and she has been waiting for justice for the last

more than three years, during when this writ petition has been

pending.

7. I have heard Sri.Raphael Thekkan - learned counsel

appearing for the petitioner; Sri.P.M.Abdul Jaleel - learned counsel

for the Society; Sri.M.Sasindran, learned standing counsel for the

Pension Board and Smt.Resmi Thomas, learned Government Pleader.

8. Sri.P.M.Abdul Jaleel - learned counsel for the Society

submitted that none of the prayers made for by the petitioner in this

writ petition are tenable because, going by the applicable

Regulations, her deceased husband would be entitled only to DCRG

as has been computed in Ext.P5, but not the entire amount paid by

the LIC under the Group Gratuity Scheme. As regards compassionate

appointment is concerned, Sri.P.M.Abdul Jaleel submitted that the

petitioner did not even make an application for the said purpose

within one year after the death of her husband, which is mandatory; WP(C) NO. 30959 OF 2019

and further that, in the absence of consent letter from his other legal

heirs, such a benefit cannot be claimed by her.

9. Finally, as regards the other retiral benefits are concerned,

Sri.P.M.Abdul Jaleel submitted that a total of Rs.87,808/- was

computed to be eligible to the petitioner's deceased husband, but

that an amount of Rs.55,485/- was overdue in his loan account, which

has been adjusted. He thus prayed that this writ petition be

dismissed.

10. Sri.M.Sasindran, learned standing counsel for the Pension

Board, conceded that the Pension contribution in the account of the

petitioner's deceased husband has already been remitted by the

Society along with all necessary papers, except the consent letter

from his other legal heirs. He submitted that as soon as such a letter

is obtained, the eligible pension will be paid to the petitioner along

with its arrears.

11. As I have said prefatorily, the abject agony of the

petitioner cannot be lost sight of by this Court.

12. The petitioner lost her husband on 29.05.2017, when she

was just about 32 years in age and has been thereupon left in the

lurch by the respondents, without being paid any amounts to sustain

herself.

13. Even though the Society admits to an amount of WP(C) NO. 30959 OF 2019

Rs.1,66,396/-, as being the DCRG eligible to her husband, it is baffling

that even the said amount has not been paid to her until today.

14. On the question of DCRG, it is admitted that the Society

received an amount of Rs.3,41,396/- from the LIC under the Group

Gratuity Scheme, but they take the stand that except the afore

admitted amount, nothing is deserving to be payable by them. I am

afraid that this stand of the Society is egregiously improper because it

runs contrary to the declarations of this Court in Chandrasekhar

Nair v. Kerala State Co-operative Agricultural and Rural

Development Bank Limited [2017 (4) KLT 276].

15. Coming to the adjustment of the alleged loan liability

against the retiral benefits of the petitioner's husband is concerned, it

is now well settled that unless he had given an undertaking under

Section 37 of the Kerala Co-operative Societiesa Act (KCS Act), the

same could not have been done. There is nothing on record to show

that any such undertaking was given and the Society has also not

produced any such document in substantiation. Pertinently, they have

chosen not even whisper about any such undertaking in their counter

affidavit, which has filed as early as on January, 2020.

16. On the aspect of compassionate appointment, as I have

said above, the excuse of the Society is that the petitioner did not

make an application within a period of one year. They, thereafter, say WP(C) NO. 30959 OF 2019

that the application made by her subsequently is defective because it

was not supported by a letter of consent by her husband's other legal

heirs, namely his father and mother.

17. I must certainly record that this Court is extremely

unhappy with the attitude shown by the Society on every of the afore

count.

18. This is because, they have refused to pay the admitted

DCRG to the petitioner until today; while they have violated the

declarations of this Court in Chandrasekhar Nair (supra) in refusing

to release the amounts received by them against the account of the

petitioner's husband from the LIC.

19. As far as the compassionate appointment is concerned, it is

baffling that they should have taken the stand that the petitioner did

not make an application within one year, when their own document,

namely Ext.R2(4), unequivocally admits that she had made such an

application on 26.09.2017, which is lesser than two months after she

unfortunately lost her husband.

20. The further reasons cited by the Society in this regard that

the petitioner did not obtain the consent letter from her father-in-law

and mother-in-law is also totally untenable and superfluous because,

admittedly, both of them were beyond the age of employability at the

time when their son died and even if, therefore, the petitioner has WP(C) NO. 30959 OF 2019

been unable to obtain their consent, it should not have been used

against her in a hypertechnical manner.

21. Finally, as I have said above, any adjustment from the

retiral benefits of the petitioner's husband could have been made only

if there had been an undertaking given by him under Section 37 of the

KCS Act, which is conspicuously absent in this case.

22. Before I conclude, however, I must add a note on the unfair

treatment of the petitioner by the Pension Board also, in their refusal

to disburse to her the eligible pension solely on the ground that she

did not obtain an NOC from her husband's parents, though the

contribution for the same has already been received by them from the

Society.

23. I fail to understand why the Pension Board has taken such

a stand because, going by Clause 23 of the Co-operative Societies

Employees Pension Scheme, 1994 (hereinafter referred to as the

'Pension Scheme' for short), the first right and priority to receive

pension is certainly with the spouse, while the mother and father fall

at least two or three classes below that.

24. Hence, when the petitioner, whose matrimony to her

husband has been conceded, approached the Pension Board for

pension, I fail to comprehend how they could have asked her to obtain

the consent from her parents in law, who obtain no priority over her WP(C) NO. 30959 OF 2019

for the purpose of pension from her husband.

25. Unfortunately, the petitioner has been put to extreme

prejudice for no reason that can be attributed to her.

26. For the afore reasons, I am certain that the petitioner is

entitled to relief, which I must offer her without any further delay.

Resultantly, this writ petition is ordered with the following

directions:

a) The 2nd respondent - Society will disburse to the petitioner the

entire DCRG which they have received from the LIC in the account of

the petitioner's husband, within a period of one month from the date

of receipt of a copy of this judgment; failing which, the said sums will

carry interest at the rate of 8% from per annum from the date on

which they received it, until it is actually paid.

b) The Society shall hear the petitioner forthwith on the question

whether her husband had executed an undertaking under Section 37

of the KCS Act and if it is found to the contrary, then the entire retiral

benefits computed shall be paid to her within a period of one month

from today; failing which, the same shall also attract interest at the

rate of 9% per annum from the date of death of her husband, until it is

actually paid.

c) If, on the contrary, the Bank is able to establish that an

undertaking was obtained from the petitioner's husband under WP(C) NO. 30959 OF 2019

Section 37 of the KCS Act, then, subject to the remedy of the

petitioner to challenge any such decision, the balance amounts after

adjustment against alleged overdraft which he had availed, shall be

released to the petitioner within a period of one month from the date

of receipt of a copy of this judgment, failing which, the said amount

will carry interest as ordered in (b) above.

d) The competent Authority of the Society will immediately

consider the petitioner's application for appointment under the

compassionate Scheme without insisting on any NOC being obtained

from her parents in law and issue appropriate orders and complete

necessary action thereon within a period of two months from the date

of receipt of a copy of this judgment.

e) The Co-operative Pension Board will take action forthwith to

release the pension, its arrears and the statutorily accrued interest to

the petitioner from the date on which the contribution for such

purpose were received by them from the Society, de hors the

requirement of obtaining any consent or NOC from her parents-in-law.

This shall be done within a period of one month from the date of

receipt of a copy of this judgment.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 30959 OF 2019

APPENDIX OF WP(C) 30959/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE CORATTI GRAMA PANACHAYATH DATED 19.5.15

EXHIBIT P2 A TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY THE COCHIN MUNICIPAL CORPORATION DATED 27.6.17

EXHIBIT P3 A TRUE COPY OF THE DOCUMENT ISSUED TO THE PETITIONER FROM THE THRISSUR DISTRICT CO OEPRATIVE EMPLOYEES CO OPERATIVE SOCIETY LIMITED NO.R 325 DATED 31.7.18

EXHIBIT P4 A TRUE COPY OF THE DISCHARGE RECEIPT ISSUED DATED 11.9.17

EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER DATED 30.7.18

EXHIBIT P6 A TRUE COPY OF THE LAWYER NOTICE ISSUED ON BEHALF OF THE PETITIONER DATED 21.1.19

EXHIBIT P7 A TRUE COPY OF THE RECEIPT ISSUED BY THE POSTAL DEPARTMENT DATED 22.1.19

RESPONDENT'S EXHIBITS:

EXT.R2(1) TRUE PHOTOCOPY OF THE LETTER RECEIVED FROM THE PETITIONER TO THE RESPONDENT 2 REQUESTING DEATH BENEFITS.

EXT.R2(2) TRUE PHOTOSTAT COPY OF THE LETTER NO.111/17-18 DATED 22.07.2017 SENT BY THE RESPONDENT TO THE PETITIONER.

EXT.R2(3) TRUE PHOTOSTAT COPY OF THE LETTER NO.K/63/2019 DATED NIL BY THE RESPONDENT NO.4 TO R2.

EXT.R2(4) TRUE PHOTOSTAT COPY OF THE LETTER NO.151/17-18 DATED 06.10.2017 SENT BY R2 TO THE PETITIONER.

EXT.R2(5) TRUE PHOTOSTAT COPY OF THE LETTER DTED 18.07.2018 OF THE PETITIONER TO R2.

WP(C) NO. 30959 OF 2019

EXT.R2(6) TRUE PHOTSTAT COPY OF THE LETTER & ACKNOWLEDGEMENT DATED 18.07.2018 BY THE PETITIONER

EXT.R2(7) TRUE PHOTOSTAT COPY OF THE FAMILY PENSION APPLICATION FORWARDED BY THE RESPONDENT 2 TO THE PENSION BOARD.