G.Sukumariamma vs The Director Of Dairy Development
2023 Latest Caselaw 345 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                      WP(C) NO. 21533 OF 2022
PETITIONER:
           G.SUKUMARIAMMA, AGED 68 YEARS, W/O.L.SANKARAN KUTTY,
           SANKARALAYAM, MUZHANGODI, THODIYUR.P.O, KARUNAGAPPALLY,
           KOLLAM DISTRICT-PIN-690 523.

          T.R.HARIKUMAR
          ARJUN RAGHAVAN


RESPONDENTS:
     1     THE DIRECTOR OF DAIRY DEVELOPMENT
           PATTOM P.O, THIRUVANANTHAPURAM-695 004.

    2     THE DEPUTY DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT,
          KOLLAM, KOLLAM DISTRICT-691 001.

    3     THE BOARD OF DIRECTORS OF THE PULIYOORVANCHI VADAKKU
          KSHEEROLPADAKA SAHAKARANA SANGHAM Q128(D)APCOS
          REPRESENTED BY ITS PRESIDENT, THAZAVA.P.O,
          KARUNAGAPPALLY, KOLLAM-690 523.

    4     THE PULIYOORVANCHI VADAKKU KSHEEROLPADAKA SAHAKARANA
          SANGHAM Q 128 (D) APCOS, REPRESENTED BY ITS SECRETARY,
          THAZAVA.P.O, KARUNAGAPPALLY, KOLLAM-690 523.

    5     THE KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD,
          REPRESENTED BY ITS SECRETARY, P.B NO.85, KALA NIVAS,
          CHINMAYA LANE, KUNNUMPURAM, THIRUVANANTHAPURAM-695 001.

 ADDL.R6. STATE OF KERALA, REPRESENTED BY THE CHIEF
          SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT,
          THIRUVARANTHAPURAM- 695001

          IS IMPLEADED AS ADDITIONAL R6 AS PER ORDER DATED
          23.08.2022 IN I.A. 1/2022 OF WP(C) 21533/2022.

          M.SASINDRAN
          SMT PARVATHY K-GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 21533 OF 2022
                                     2


                                 JUDGMENT

The petitioner superannuated from the 4 th respondent

"Puliyoorvanchi Vadakku Ksheerolpadaka Sahakarana

Sangham" ('Society', for short), on 31.03.2010, and alleges

that his eligible arrears of pension from that day, until

01.04.2021, has been denied on account of the

manipulations conducted by the Society, in spite of the fact

that he has obtained several judgments from this Court.

2. Sri.T.R.Harikumar - learned counsel for the

petitioner, explained that his client was unfairly suspended

from service with effect from 18.03.2010, and then

proceeded against disciplinarily; but that, through the

march of subsequent events and orders of this Court, he

was declared to have retired on attaining the age of

superannuation de hors such action, and obviously,

therefore, that he was entitled to all his retiral benefits with

effect from 01.04.2010

3. Learned counsel for the petitioner explained that,

as evident from Exts.P4, P5, P6 and P10, the Society could

have never taken a stand that his client had not retired on

attaining the age of superannuation and that it has also WP(C) NO. 21533 OF 2022

been declared unequivocally that they were under

obligation to take necessary steps to ensure that his

pensionary benefits are disbursed. He argued that, in spite

of this, the Society appears to have presented the Pension

Docket of his client only on 19.04.2021, with the request to

enroll him in the Statutory Pension Scheme and therefore,

that the "Kerala State Co-Operative Employees Pension

Board" ('Pension Board', for short), has now taken a stand

that under the rigour of Rule 20(3) proviso of the "Co-

operative Societies Employees Pension Scheme", 1994

(hereinafter referred to as the 'Pension Scheme' for short),

he will not be entitled to any arrears prior to that date. The

learned counsel, therefore, prayed that the "Pension Board"

be directed to reconsider the entire aspects, taking note of

various judgments of this Court.

4. Sri.T.R.Harikumar, thereafter, pertinently submitted

that, even though his client has challenged the vires of the

aforementioned proviso, it may not be relevant now,

because it has now come to his notice that the same had

been brought into the Statute Book only with effect from

21.07.2010, while he retired much earlier, on 31.03.2010. WP(C) NO. 21533 OF 2022

He submitted that, therefore, for the time being, his client

does not press the challenge against the constitutional vires

of the afore proviso; and reiteratingly prayed that the

reliefs sought for by him earlier be granted.

5. Sri.V.Philip Mathews - learned Standing Counsel

appearing for the Society, submitted that the afore

arguments of Sri.T.R.Harikumar will not hold water, on

account of the final directions in Ext.P10 judgment of this

Court. He argued that this Court had only directed his

client to present the Pension Docket and to enroll the

petitioner, which has been done and that he has also

obtained his pensionary benefits with effect from

01.04.2021. He concluded his submissions, saying that

there are even recovery proceedings against the petitioner,

which are still pending.

6. Sri.M.Sasindran - learned standing counsel for the

'Pension Board', in response, submitted that, as long as the

proviso to Rule 20(3) of the 'Pension Scheme' operates, his

client is incapacitated from acceding to the request of the

petitioner. He argued that it is for the Society to have

presented the Pension Docket of the petitioner in time and WP(C) NO. 21533 OF 2022

to have requested to enroll him in the "Pension Scheme";

but that since they refused and failed to do so, his client

had no other option, but to commence payment of

pensionary benefits to him only with effect from

01.04.2021. He thus prayed that this writ petition be

dismissed.

7. Though, on the question of law, Sri.M.Sasindran's

contentions stands on terra firma, the fact remains that the

factual scenario involved in this case is rather piquant. This

is because, it is not a simple case where the Society omitted

to file the pension papers of the petitioner before the

"Pension Board" or to seek to enroll him in the "Pension

Scheme", but where they had consistently disregarded the

directions of this Court in the past. In fact, I do not require

to speak much about this because, in Ext.P10, a learned

Single Judge of this Court spoke eloquently on this in the

following manner:

"In other words, though the Society and the Board of Directors knew very well by Ext.P7 judgment that the petitioner was to be treated as a person who had retired on superannuation and were under an obligation to take necessary steps, they remained recalcitrant and no action was taken to correct the pension paper or to take steps to give effect to this Court's order and to forward the pension papers. Ext.R3(f) clearly shows that all WP(C) NO. 21533 OF 2022

the necessary documents were forwarded only on 16/5/2021, after this court took tough stand against the Society by insisting the personal appearance of president and secretary. In the above circumstances, this court expressed displeasure in the manner in which the Society was functioning. Secretary and the President presented themselves in virtual platform on 22/7/2021 pursuant to the directions of this court. These facts were brought to the notice of the President and the Secretary and their explanation was also sought. They could not offer any valid explanation, much less any explanation. They were also asked to show cause why heavy compensation/fine shall not be imposed on the President, the Society, Board of Directors and the Secretary. Still they could not give any explanation. The President submitted that the present committee had been in office since 2018. Hence, the President and each of the Board of Directors who are arrayed as 2nd respondent and the Secretary had sufficient opportunity to comply with the direction of this court., but flouted the different directions of this Court. Hence, each of them is personally liable to compensate the petitioner. In the above circumstances, I am inclined to allow the writ petition with the following stringent directions;

1. The 4th respondent Pension Board shall process application and shall pass final orders sanctioning pension and release all the benefits whichever are found to be admissible, within a period of one month from today. If further information are required, the Society will be under an obligation to furnish such details without any further delay. Any delay or non cooperation on the part of the Society will be seriously viewed.

2. For willful disobedience of this court's repeated directions and for non implementation of the orders of this court from 2016 onwards, the 2nd respondent President, Board of Directors, the 3rd respondent society and Secretary are personally liable to pay compensation of Rupees One Lakh to the petitioner. The above amount shall be remitted at first instance by the society in the bank account of the petitioner within one month from today, WP(C) NO. 21533 OF 2022

failing which it will carry interest at the rate of 6% till the recovery, chargeable on the assets of the society. On deposit of such amount, the amount so deposited shall be recoverable from each of the above persons which will be chargeable on the assets and person of the president, each of the Board of Directors as well as the Secretary.

3). The President, 2nd respondent Board of Directors and the 3rd respondent Secretary shall be jointly and severally liable for the above compensation in equal proportion and the amount paid by the Society as above shall be reimbursed in equal proportion by each of the above person. If the amount is not paid voluntarily within one month after deposit by secretary, the entire amount shall be recovered with 6% interest from each of the Board of Directors including the President and the 3rd respondent Secretary in equal proportion and till the amount is paid by each of them, it shall be deemed to be arrears due to the Society from that person for all practical purposes, including disqualification, if any, for contesting future elections.

4). The first respondent Deputy Director shall ensure the above compliance and default if any shall be reported to the superior officers for necessary action.

5). In case of any breach, the petitioner will be free to file an interlocutory application in this writ petition to revive, the present writ proceedings."

8. The afore views, observations and directions of this

Court are self - explanatory and I do not need to expatiate

them in any manner.

9. Suffice to say, the petitioner has been put to a

detriment for no fault of his, even though he has obtained

unambiguous declarations from this Court, to the effect that WP(C) NO. 21533 OF 2022

he must be deemed to have retired on attaining the age of

superannuation. That apart, as rightly argued by

Sri.T.R.Harikumar, the rigor of proviso to clause 20(3) of the

"Pension Scheme" and the question whether the said rigor

can be applied to the petitioner, are also something which

the "Pension Board" will have to decide, especially taking

note of the fact that the same came into the Statute Book

much after the petitioner retired from service.

10. In the afore circumstances, I am certain that the

"Pension Board" should hear both sides and invoke all their

powers under the "Pension Scheme", including under

Clause 38 thereof; and thus take an apposite decision,

taking note of the specific and peculiar circumstances and

facts involved in this case, as also the repeated judgments

and directions of this Court, which culminated finally in

Ext.P10.

11. Resultantly, I allow this writ petition and direct

the competent Authority of the "Pension Board" to hear the

petitioner, as also the Society, and decide upon his claim;

thus resulting in an appropriate order and necessary action

thereon, as expeditiously as is possible, but not later than WP(C) NO. 21533 OF 2022

two months from the date of receipt of a copy of this

judgment.

12. I make it clear that I am fixing the time short

because Sri.T.R.Harikumar - learned counsel for the

petitioner, submits that his client is very old and laid up as

of now, thus having an emergent requirement for financial

resources.

13. I make it clear that the afore directions have been

issued in the specific factual circumstances noticed in this

case and are not intended to operate as a precedent even in

analogous circumstances. This is because, this is not a case

which can be equated with another in usual circumstances

because, as I have already said above, the petitioner had

the protection of directions of this Court, but still has been

denied his eligible pensionary arrears, which this Court

cannot normally countenance. Therefore, while completing

the afore exercise, the "Pension Board" shall keep this in

mind and issue appropriate orders to the Society as may be

necessary to ensure that the petitioner's claims are

properly considered and evaluated.

It also goes without saying that the power of the WP(C) NO. 21533 OF 2022

"Pension Board" to recover from the Society necessary and

liable amounts, are fully left open.

Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 21533 OF 2022

APPENDIX OF WP(C) 21533/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15-02-2011.

Exhibit P2 A TRUE COPY OF THE COMMUNICATION DATED 19-10-2012 ISSUED BY THE 1ST RESPONDENT.

Exhibit P3 A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 24-04-2014, FILED BY THE 3RD RESPONDENT IN WP(C) NO.2152 OF 2014 WITHOUT EXHIBITS.

Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 12-10-

2015 IN WP(C) NO.2152 OF 2014.

Exhibit P5 A TRUE COPY OF THE ORDER DATED 04-12-

2015 IN R.P NO.1124 OF 2015.

Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 17-03-

2016 IN W.A NO.468 OF 2016.

Exhibit P7 A TRUE COPY OF THE REFERENCE ORDER DATED 05-07-2019 IN CONTEMPT CASE (CIVIL) NO.1529/2016.

Exhibit P8 A TRUE COPY OF THE INTERIM ORDER DATED 04-03-2021 IN WP(C) NO.21046 OF 2020 OF THIS HON'BLE COURT.

Exhibit P9 A TRUE COPY OF THE INTERIM ORDER DATED 08-04-2021 IN WP(C) NO.21046 OF 2020 OF THIS HON'BLE COURT.

Exhibit P10 A TRUE COPY OF THE JUDGMENT DATED 05-08-

2021 IN WP(C) NO.21046 OF 2020 OF THIS HON'BLE COURT.

Exhibit P11 A TRUE COPY OF THE DEMAND NOTICE DATED WP(C) NO. 21533 OF 2022

26-06-2021 ISSUED BY THE 5TH RESPONDENT.

Exhibit P12 A TRUE COPY OF THE PROCEEDING NO.PPO/ 10060/KLM DATED 12-07-2021 ISSUED BY THE 5TH RESPONDENT.

Exhibit P13 A TRUE COPY OF THE COMMUNICATION DATED 11-08-2021 ISSUED BY THE 5TH RESPONDENT TO THE KOLLAM DISTRICT CO-OPERATIVE BANK.

Exhibit P14 COPY OF THE CALCULATION STATEMENT, SHOWING THE AMOUNT DUE TO THE PETITIONER.