Kerala High Court
Managing Director, ... vs Sivakumar on 6 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 6TH DAY OF OCTOBER 2022 / 14TH ASWINA, 1944
WP(C) NO. 37752 OF 2017
PETITIONER:
KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD,
REPRESENTED BY ITS SECRETARY, KUNNUMPURAM,
P.B.NO.85, THIRUVANANTHAPURAM - 695 001.
BY ADV SRI.M.SASINDRAN
RESPONDENTS:
1 SIVAKUMAR,
MULLANVEEDUVILAKATHUVEEDU, PONNUMANGALAM,
NEMOM POST, THIRUVANANTHAPURAM DISTRICT-695 020.
2 THE MANAGING DIRECTOR,
NEYYATINKARA TALUK URBAN CO-OPERATIVE BANK,
NEYYATTINKARA-695 121.
3 THE REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
THIRUVANANTHAPURAM-695 001.
4 THE KERALA LOK AYUKTA
LEGISLATURE COMPLEX, VIKAS BHAVAN,
THIRUVANANTHAPURAM - 695 033,
REPRESENTED BY ITS SECRETARY.
BY ADVS.
SRI.VIJAYAN K.
SRI.S.SREEKUMAR (KOLLAM)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.10.2022, ALONG WITH WP(C).37791/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No.37752 of 2017
& 37791 of 2017 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 6TH DAY OF OCTOBER 2022 / 14TH ASWINA, 1944
WP(C) NO. 37791 OF 2017
PETITIONER:
MANAGING DIRECTOR,
NEYYATTINKARA CO-OPERATIVE URBAN BANK LTD.
NO.931, NEYYATTINKARA-691 121.
BY ADVS.SRI.R.T.PRADEEP
SMT.M.BINDUDAS
RESPONDENTS:
1 SIVAKUMAR
MULLANVEEDUVILAKATHUVEEDU,
PONNUMANGALAM, NEMOM P.O., PIN-695 020.
2 THE SECRETARY
KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION
BOARD, THIRUVANANTHAPURAM, (NEAR) AYURVEDA
COLLEGE, PIN-695 001.
3 REGISTRAR, CO-OPERATIVE SOCIETIES,
JAGATHY, THIRUVANANTHAPURAM-695 001.
4 KERALA LOK AYUKTA
REPRESENTED BY ITS REGISTRAR, LEGISLATIVE
COMPLEX, PALAYAM, THIRUVANANTHAPURAM-695 001.
BY ADVS.
S.SREEKUMAR (KOLLAM)
SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE
EMPLOYEES PENSION BOARD
SRI.K.VIJAYAN (V-726)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.10.2022, ALONG WITH WP(C).37752/2017, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.37752 of 2017
& 37791 of 2017 3
JUDGMENT
Dated this the 6th day of October, 2022
Shaji P.Chaly, J.
These writ petitions are filed by respondents 1 and 2
respectively in Complaint No.1572 of 2015-B, on the files of
the Kerala LokAyukta, challenging its order dated
05.10.2017, whereby, after taking into account the factual
circumstances and the documents made available for
consideration, the Upa Lok Ayukta has passed the following
order:
"11. The complaint is disposed of with a direction
to respondent no.1 to pay interest to the complainant
at the rate of 9% per annum on the sum of
Rs.1,34,001/- from December 1, 2014 till May 23, 2016.
Similarly respondent no.2 is directed to pay interest to
the complainant at the rate of 9% per annum on
Rs.2,05,350/- from December 1, 2014 till date when the
above payment was made. Payments shall be made by
respondents 1 and 2 within one month from the date of
receipt of a copy of this order."
2. Brief material facts for the disposal of the writ
petitions are as follows:
W.P.(C)No.37752 of 2017
The complainant, the 1st respondent in both the writ
petitions, while working as Appraiser-cum-Cashier in
Neyyattinkara Taluk Urban Co-operative Bank, retired from
service on 30.11.2014. But the monthly pension has not
been disbursed to him. When the 1st respondent/
complainant approached the respondents for disbursal of
the same, it was informed from the office of the Kerala State
Co-operative Employees Pension Board, one of the
petitioners in the writ petitions, that the Bank has not sent
the provident fund amount collected from him. Inaction on
the part of the respondents in disbursing the monthly
pension, persuaded the 1st respondent to file the complaint
before the Kerala Lok Ayukta.
3. The paramount contention advanced by the Co-
operative Employees Pension Board is that the impugned
order passed by the LokAyukta is without jurisdiction since
the function of the LokAyukta is not adjudicatory but
investigative. That apart, it is submitted that Exhibit P3
impugned order is bad on merit also, since interest at the
W.P.(C)No.37752 of 2017
rate of 9% was directed to be paid. It is the case of the
petitioner that there is no amount of Rs.1,34,001/- due to the
complainant/1st respondent from December 2014 since
arrears of proportionate pension was disbursed to the 1 st
respondent in May 2016. Therefore, according to the
Pension Board, the amount due in January 2015 is only
Rs.7,752/-, the proportionate pension sanctioned to the 1 st
respondent and which amount will be successively added
during the months to come. Therefore, the direction to pay
interest for Rs.1,34,001/- from December 2014 to the Co-
operative Employees' Pension Board is absolutely arbitrary.
Other contentions are also raised relying upon the provisions
of the Kerala Co-operative Employees' Pension Scheme.
4. The Bank, in its writ petition, has contended that the
Bank, which availed the benefit of One Time Settlement
Scheme of the Government, cannot be put to undue hardship
and pecuniary loss in derogation of the Scheme for One Time
Settlement; and that the imposition of interest after paying
interest for the belated payment in terms of the One Time
W.P.(C)No.37752 of 2017
Settlement Scheme by Exhibit P9 in defiance of section 12(1)
and (5) of the Act is per se illegal, improper and arbitrary and,
therefore, hit by Article 14 of the Constitution of India. It is
also submitted that the 1st respondent/complainant was
under suspension and the Bank is not bound to pay any
pension contribution during the period of suspension, which
has been regularised as leave without allowance and the
subsistence allowance received by him during the period of
suspension was reckoned as full salary. It is also submitted
that the arrears of pension contribution had accrued due to
the stalemate in reckoning the period of suspension and,
therefore, the Bank is not responsible for arrears of pension
contribution towards the account of the 1st respondent.
5. On the other hand, the learned counsel appearing
for the 1st respondent submitted that the Upa Lok Ayukta
has taken into account all relevant aspects and inputs while
arriving at the conclusions and, therefore, there is no
interference required since the order of the Upa Lok Ayukta
is not suffering from any illegality or vice of arbitrariness
W.P.(C)No.37752 of 2017
susceptible to be interfered in a proceeding under Article
226 of the Constitution of India.
6. We have heard learned counsel Sri.M.Sasindran and
Sri.R.T.Pradeep for the petitioners, and learned counsel Sri. S.
Sreekumar (Kollam) for the 1st respondent/complainant and
perused the pleadings and the material on record.
7. The sole question to be considered is whether any
interference is required to the order of the Upa Lok Ayukta.
In fact, the Upa Lok Ayukta has awarded interest to the 1 st
respondent for the amounts that have fallen due, taking
note of the fact that the Bank has failed to remit the arrears
of pension contribution payable to the Board, which
prevented the Pension Board to pay the pension to the 1st
respondent. The Upa LokAyukta has also taken note of the
fact that the petitioner was suspended from service.
However, since the service was regularised later, the Bank
was duty bound to pay the contribution to the Pension
Board. It is also noted by the Upa LokAyukta that the 1 st
respondent retired from service in November 2014.
W.P.(C)No.37752 of 2017
However, the amounts due to the Board under the One Time
Settlement Scheme amounting to Rs.45,159/- in lieu of
Rs.3,21,643/- was paid to the Board by the Bank only on
29.03.2017. It is also found that the arrears of pension
payable to the 1st respondent till April 2017 was
Rs.2,05,350/-. Anyhow, the amounts are paid to the 1st
respondent by the Board only in the year 2017. It was taking
into account the said aspect that the Upa LokAyukta has
directed to pay interest to the amounts that have fallen due
to the 1st respondent. For the sake of convenience, it is
better that the discussion made by the Upa LokAyukta
before arriving at the final conclusions are extracted:
"5. The above sequence of events will show that the
complainant has ultimately succeeded in getting his
monthly pension. But it has to be remembered that he had
retired from service in November 2014. Respondents 1 and
2 have been blaming each other for the last three years
during the pendency of this complaint. It was only when
additional respondent no.3, the Registrar of Co-operative
Societies, stepped in and examined the files concerned that
a quietus has been given to the issue.
6. Learned counsel for the complainant made a
W.P.(C)No.37752 of 2017
persuasive plea that the complainant be adequately
compensated for the hardship and harassment suffered by
him for no fault of his. She pointed out that 10% of the
basic pay of the complainant was being deducted from his
salary every month ever since his employer-Bank had
decided to be a member of the Scheme some time in 1996.
This is not disputed by respondent no.2 also. Indisputably
there occurred delay on the part of the Bank in remittance
of the arrears to the credit of the employee concerned to
the Board. But still, surprisingly the consistent stand taken
by the Bank throughout was that the entire contribution
had been paid by it to the Board. The contention of
respondent no. 1 that huge arrears in excess of Rs. 3 lakhs
was due from the Bank was vehemently denied. But when
pursuant to an interim order passed by this Forum, the
Registrar of Cooperative Societies stepped in, the Bank had
to agree to pay the arrears, of course by utilizing the
benefit of the O.T.S. Scheme. In this context it may be
remembered that the Bank had refused to make use of the
O.T.S. Scheme of 2015 also despite the fact that the Board
had alerted it about the same. Be that as it may, the
complainant has now started getting the full complement
of his pension of Rs.15012/- with DA per mensem with
effect from May 2015. It is seen from the statement of the
Registrar that a sum of Rs. 2,05,350/- being the arrears
payable till April 2017 has also been paid to him. At this
juncture it may be mentioned that he had been getting only
Rs.7752/- per mensem towards proportionate pension and
that too only with effect from March 1, 2016.
W.P.(C)No.37752 of 2017
7. As rightly pointed out by learned counsel for the
complainant, respondent no.2 had caused undue delay in
remittance of the pension contribution to the Scheme
without any valid or justifiable reasons. The Bank ought to
have utilized the benefit of the OTS Schemes introduced by
the Government in the earlier years so that the complainant
would have got the full complement of his monthly pension
much earlier. It is pointed out by her that respondent no.1
had also unnecessarily delayed disbursement of
proportionate pension to the complainant immediately
after his retirement. Respondent no.1 Pension Board had
started disbursement of the proportionate pension at the
rate of Rs.7,752/- only with effect from March 1, 2016. It is
true that a sum of Rs.1,34,001/- being the arrears of
proportionate pension from December 1, 2014 till May 31,
2016 was paid to the complainant on May 24, 2016 as could
be seen from the order issued by the Secretary of
respondent no.1 Board. However it is beyond controversy
that respondent no. 1 was bound to pay proportionate
pension to the complainant right from December 1, 2014
itself in proportion to the amount of pension contribution
already received from the Bank.
9. As rightly contended by learned counsel for the
complainant respondents 1 and 2 have to necessarily face
the consequences of the laches on their part. In my view
interest of justice will be met only if these respondents are
directed to pay interest for the delayed payment of the
proportionate pension and full pension. Respondent no.1
shall therefore pay interest at the rate of 9% on the sum of
W.P.(C)No.37752 of 2017
Rs 1,34,001/- from December 1, 2014 till May 31, 2016 and
respondent no. 2 shall pay interest at the same rate on the
sum of Rs.2,05,350/- from December 1 2014 till the date of
payment of the above sum in March, 2017.
10. Before parting with this case it may be
mentioned that additional respondent no. 3, the Registrar
of Cooperative Societies has stated in his Report that strict
instructions have been issued to all Co-operative Societies
who are members of the Scheme to strictly follow the
directives contained in Circular no. 44/2012 issued by the
Government. In the above circular reference was in fact
made to the judgment rendered by a Division Bench of the
Hon'ble High Court of Kerala in WA.No.1332/2012
(TR.Sambasivan Vs. The Kerala State Co operative
Employees Pension Board & anr) which had ultimately led to
the issuance of the above Circular. I do not propose to
burden this order with the salient features of the Circular
issued in terms of the directions issued by the Division
Bench. But one Clause in the Circular may have to be
mentioned which relates to the liability to pay interest for
delayed payment by the offending Society/Bank. In Clause
(4) it has been mentioned that if any Society commits delay
in payment of the contribution to the Pension Board the
interest payable for such delay shall not be borne by the
Society; but the same shall be recovered from the members
of the Managing Committee and the Chief Executive
through surcharge proceedings. This clause was
incorporated in strict compliance of the direction issued by
the Division Bench. Addl. Respondent no.3 shall ensure that
W.P.(C)No.37752 of 2017
the above clause no.4 is not overlooked or ignored in this
case."
8. Even though a contention is advanced by the learned
counsel for the petitioners that since the amount due to the
Pension Board was paid by the Bank with interest, the
direction issued by the Upa LokAyukta to pay interest to the
1st respondent would amount to payment of the interest
twice; we are of the opinion that insofar as the amount
payable by the Bank to the Pension Board is concerned, was
detained by the Bank and if at all any interest is paid by the
Bank to the Pension Board, it is for the purpose of working
out the scheme of the pension fund, which has nothing to do
with the payment of interest to the 1 st respondent. It is an
admitted fact that only a portion of the pension was paid to
the 1st respondent and it was while the petition was pending
before the Upa LokAyukta that the arrears of pension was
paid in the year 2017, which thus means there was a delay of
nearly three years to pay the entire arrears of pension to the
1st respondent from the date of retirement from the service
W.P.(C)No.37752 of 2017
in November 2014.
9. Petitioners have also raised a contention that the
Upa LokAyukta has no jurisdiction to consider a matter of
this nature. But we are unable to agree with the same since
maladministration defined under the Kerala Lok Ayukta Act,
1999 takes in inaction and undue delay also. There was
considerable inaction and undue delay on the part of the
petitioners in paying the full pension and arrears of pension;
and also in discharging their respective obligations and
duties, thus precluding the 1st respondent to secure full
pension under the Pension Scheme.
10. Taking into consideration the above said aspects
and also bearing in mind various judgments of the Apex
Court in the matter of payment of interest to the delayed
release of retirement benefits; and the circular of the State
Government for payment of interest by the Upa LokAyukta,
we are of the considered opinion that the petitioners have
not made out a case to interfere with the order passed by
the Upa LokAyukta, there being no arbitrariness or illegality
W.P.(C)No.37752 of 2017
susceptible to be interfered invoking the power conferred
under Article 226 of the Constitution of India.
Needless to say, writ petitions fail. Accordingly, they
are dismissed.
Pending interlocutory applications, if any, shall stand
closed.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv
W.P.(C)No.37752 of 2017
APPENDIX OF WP(C) 37752/2017
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE COMPLAINT PREFERRED BY
THE 1ST RESPONDENT BEFORE THE LOK AYUKTA.
EXHIBIT P2 A TRUE COPY OF THE COUNTER SUBMITTED BY THE
PETITIONER BEFORE THE LOK AYUKTA.
EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 5.10.2017 IN
COMPLAINT NO.1572/15 OF THE LOK AYUKTA.
W.P.(C)No.37752 of 2017
APPENDIX OF WP(C) 37791/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF COMPLAINT NO.1572/2015 DATED
9-12-2015 BEFORE UPA LOK AYUKTA.
EXHIBIT P2 TRUE COPY OF PROCEEDINGS DATED 25-4-1994
BY WHICH THE 1ST RESPONDENT WAS PLACED
UNDER SUSPENSION.
EXHIBIT P3 TRUE COPY OF STATEMENT DATED 11-2-2016
FILED BY PETITIONER.
EXHIBIT P4 TRUE COPY OF REMITTANCE STATEMENT FOR 1ST
RESPONDENT FROM 1-7-1983 TO 30-11-2014.
EXHIBIT P5 TRUE COPY OF PAY SLIP DATED 3-7-2015 AS
REGARD REMITTANCE OF RS.973/- FOR 1ST
RESPONDENT.
EXHIBIT P6 TRUE COPY OF PAY SLIP DATED 11-2-2016 AS
REGARD REMITTANCE OF RS.13,888/- FOR 1ST
RESPONDENT.
EXHIBIT P7 TRUE COPY OF ADDITIONAL STATEMENT DATED
18-8-2016.
EXHIBIT P8 TRUE COPY OF ACTION TAKEN REPORT OF 3RD
RESPONDENT DATED 19-6-2017.
EXHIBIT P9 TRUE COPY OF ORDER DATED 5-10-2017 IN
COMPLAINT NO.1572/2015 BY UPA LOK AYUKTA.
//true copy//
P.A. to Judge
