Anjarakandy Farmers' Service ... vs The State Of Kerala
2022 Latest Caselaw 7887 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
         WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
                             WP(C) NO. 16552 OF 2022
PETITIONER:

              ANJARAKANDY FARMERS' SERVICE CO-OPERATIVE BANK LTD.,
              NO 1141, P.O. MAMBA, KANNUR-670611, REPRESENTED BY ITS
              MANAGING DIRECTOR ANIL KUMAR M.P.

              BY ADVS.K.P.PRADEEP
              HAREESH M.R.
              SANAND RAMAKRISHNAN
              T.T.BIJU
              T.THASMI
              M.J.ANOOPA


RESPONDENTS:

     1        THE STATE OF KERALA,
              REPRESENTED BY ITS SECRETARY CO-OPERATION DEPARTMENT,
              GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

     2        THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
              JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O.
              THIRUVANANTHAPURAM - 695014.

     3        KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, TC NO
              27/156 & 157, CHINMAYA LANE NEAR AYURVEDA COLLEGE,
              THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS SECRETARY.

     4        THE KERALA CO-OPERATIVE OMBUDSMAN KATHIMUKKU,
              THIRUVANATHAPURAM-695 023, REPRESENTED BY ITS SECRETARY.

     5        M.KRISHNAN, S/O KUNHAMBU THAMB, KUDUKKIMETTA, P.O EACHUR,
              KANNUR - 670 591.

              BY ADVS.SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE
              EMPLOYEES PENSION BOARD,
              SMT.VIDHYA. A.C
              SMT.A.C.VENUGOPAL
              SRI.M.SASINDRAN,
              SRI.JOSHY THANNICKAMATTAM, GP


     THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16552 OF 2022
                                  -2-

                                JUDGMENT

The petitioner, which is a Co-operative

Society operating under the ambit of the Kerala

Co-operative Societies Act and Rules thereunder

('KCS Act' and 'Rules', for short), has

approached this Court impugning Ext.P7 order,

issued by the 4th respondent - Kerala Co-

operative Ombudsman ('Ombudsman', for short),

directing the 3rd respondent - Kerala State Co-

operative Employees Pension Board (Pension

Board), to initiate action under Clause 38 of

the Co-operative Employees Pension Scheme

(hereinafter referred to as the 'Scheme' for

short) and to ensure that the 5th respondent is

paid his eligible pension due from the Society.

2. Smt.T.Thasmi - learned counsel for the

petitioner, submitted that Ext.P7 order of the WP(C) NO. 16552 OF 2022

Ombudsman is untenable and illegal, because it

has been issued without jurisdiction. She added

that all the disputes between her client and

the 5th respondent were settled through Ext.P2

Memorandum and that all eligible amounts have

already been paid to him. She, therefore,

prayed that Ext.P7 be set aside.

3. In response, Smt.A.C.Vidhya - learned

counsel appearing for the 5th respondent,

submitted that Ext.P2 Agreement was only with

respect to the specific claims mentioned

therein, but that her client is always

statutorily additionally entitled to pension,

which is covered by the 'Scheme'. She submitted

that, therefore, when the Society refused to

abide by their obligations under the 'Scheme',

her client had no other option but to approach

the Ombudsman and obtain Ext.P7 order. She WP(C) NO. 16552 OF 2022

argued that the Ombudsman has the jurisdiction

to consider this aspect and therefore, that the

impugned order is irreproachable. She thus

prayed that this writ petition be dismissed.

4. Sri.M.Sasindran - learned Standing

Counsel for the 3rd respondent - Pension Board,

submitted that his client has already initiated

action as per Clause 38 of the 'Scheme' against

the Society; and that requisition for revenue

recovery will also be made as per the Statutory

mandate. He submitted that his client is not

acting per se on the basis of Ext.P7

directions, but because they are obligated to

do so under the provisions of the 'Scheme'

itself. He, therefore, prayed that his client

may be allowed liberty to continue with such

proceedings in terms of law.

5. When I evaluate the afore submissions, WP(C) NO. 16552 OF 2022

it is evident that the controversy between the

parties is in a very small compass. The real

question is whether petitioner is entitled to

pension, notwithstanding Ext.P2 Agreement

between the parties and whether such amounts

can be now quantified and sought to be

recovered by the Pension Board under the

provisions of the 'Scheme'; while the challenge

to Ext.P7 is only corollary.

6. When one examines Ext.P2, it is

luculent that an Agreement was entered into

between the parties with respect to the claims

mentioned therein. The said Agreement is

conspicuously silent on the question of

pension, but it would not be possible for this

Court to assume that this has been given up by

the 5th respondent, since there is no such

specific waiver therein.

WP(C) NO. 16552 OF 2022

7. Since the entitlement of pension is

governed by a 'Scheme', which is statutorily

sanctioned, the 5th respondent will certainly be

at liberty to seek that same be paid to him,

notwithstanding the fact that an Agreement

relating to it is silent in Ext.P2.

8. Axiomatically, the petitioner -

Society, cannot take the stand that they will

not pay the contribution to the Pension Board,

even when it is statutorily incumbent upon them

to do so. The absence of an Agreement relating

to pension of the 5th respondent in Ext.P2,

therefore, in my firm view, is inconsequential

and of no real impact on his entitlement, which

is statutorily protected.

9. That being said, the further question

is as to how the pension contribution has to be

now calculated and recovered from the Society. WP(C) NO. 16552 OF 2022

Going by the 'Scheme', certainly, it is the 3rd

respondent - Pension Board, which has the full

jurisdiction to invoke Clause 38 and adjudicate

upon the amounts due and to then recover it as

per the provisions therein, invoking the

Kerala Revenue Recovery Act and such other

applicable Statutes.

10. When I hold as aofre, it is rendered

apodictic that whether the Ombudsman has issued

Ext.P7 or otherwise, it is always obliged on

the part of the Pension Board to have invoked

their statutory powers and to recover the

eligible amounts towards contributions from the

Society. I am, therefore, of the firm view

that, notwithstanding any view relating to the

validity of Ext.P7, action as afore is required

to be initiated and completed by the Pension

Board at all times. Hence it would be WP(C) NO. 16552 OF 2022

unnecessary for this Court to examine the

validity of Ext.P7 in any manner.

Resultantly, I dispose of this writ

petition without entering into the merits of

Ext.P7, since I find it to be without

consequence; and directing the 3rd respondent -

Pension Board, to continue with their

proceedings against the Society under the

'Scheme', subject to their remedies against the

quantification, as may be available to them in

law.

Needless to say, the Pension Board will act

as per the Statutory 'Scheme' and endeavour to

ensure the payment of pension to the 5th

respondent at the earliest.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 16552 OF 2022

APPENDIX OF WP(C) 16552/2022

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 21-11-2014 IN WPC NO 3205 OF 2014.

EXHIBIT P2 TRUE COPY OF THE SETTLEMENT AGREEMENT ENTERED BY THE PETITIONER AND 5TH RESPONDENT DATED 11-04-2017.

EXHIBIT P3 TRUE COPY OF THE DECISION NO. DBR NO. 7 OF 4/17-18 DATED 29-052017 OF THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE COMPLAINT NO. 229/18 DATED 06-05-2018 FILED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN EXT P4 BEFORE THE 4TH RESPONDENT.

EXHIBIT P5 A TRUE COPY OF THE REPORT NO PB/LO/6433/2018 DATED 20-032019 FILED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.

EXHIBIT P5 B TRUE COPY OF THE ADDITIONAL COUNTER STATEMENT DATED 17-72019 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.

EXHIBIT P5 C TRUE COPY OF THE ADDITIONAL STATEMENT DATED 16-5-2019 FILED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 07-09-

2019 ISSUED BY THE PETITIONER BANK TO THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER COM NO 229/2018 DATED 26-11-2021 ISSUED BY THE 4TH RESPONDENT.