C.M.Roy vs State Of Kerala
2023 Latest Caselaw 628 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                        WP(C) NO. 766 OF 2022
PETITIONER:

          C.M.ROY, S/O.P.K.MATHAI, RESIDING AT SEVASADHANAM,
          THUVAYOOR SOUTH P.O., PATHANAMTHITTA DISTRICT.

          BY ADVS.K.C.SANTHOSHKUMAR
          K.K.CHANDRALEKHA



RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          CO OPERATIVE DEPARTMENT, GOVERNMENT OF KERALA,
          THIRUVANANTHAPURAM-695 001.

    2     THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD,
          PB NO.85, KALA NIVAS, CHINMAYA LANE, KUNNUMPURAM,
          NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-695 001,
          REPRESENTED BY ITS SECRETARY.

    3     THE ADDITIONAL REGISTRAR (SECRETARY),
          THE KERALA STATE CO OPERATIVE EMPLOYEES PENSION BOARD,
          PB NO.85, KALA NIVAS, CHINMAYA LANE, KUNNUMPURAM,
          NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-695 001.

    4     KADAMPANAD NORTH SERVICE CO OPERATIVE BANK NO.55,
          KADAMPANAD P.O., ADOOR, PATHANAMTHITTA DISTRICT-691552,
          REPRESENTED BY ITS SECRETARY.

          BY ADVS.M.SASINDRAN
          M.M.DEEPA
          SRI.JOSHY THANNICKKAMATTAM -GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 766 OF 2022
                                  -2-

                            JUDGMENT

While the petitioner was working as a Junior

Clerk in the services of the 4th respondent -

'Kadampanad North Service Co-operative Bank'

(Society, for short), he was proceeded against

disciplinarily, which led to his order of

termination. He challenged the same before the

Labour Court, which modified the punishment of

termination, to withholding of two increments

and imposition of a warning; thus ordering his

reinstatement. The petitioner assailed this

order before this Court through

O.P.No.6215/2002, which culminated in Ext.P2

judgment of this Court, wherein, the

modification of punishment by the Labour Court

was upheld and the petitioner directed to be

reinstated in service with 50% backwages.

2. This, however, has now led to a

controversy because, when the petitioner retired WP(C) NO. 766 OF 2022

from service, the Kerala State Co-operative

Employees Pension Board (hereinafter referred to

as the 'Pension Board', for short), operating

under the provisions of the Kerala Co-operative

Societies Employees Self Financing Pension

Scheme, 1994 ('Pension Scheme', for short), took

the stand that, since the petitioner did not

draw full pay for about thirteen years and three

months when he was under termination, he is not

entitled to pensionary benefits, because he did

not have the minimum qualifying service.

3. The petitioner took up the afore order

of the 'Pension Board' in appeal before the

Government, which has now issued Ext.P15,

confirming the conclusions of the said Board.

4. The petitioner has thus filed this writ

petition calling into question the validity of

the order of the 'Pension Board' and Ext.P15

order of the Government in appeal, contending WP(C) NO. 766 OF 2022

that, going by the 'Pension Scheme', it does not

say that an employee should have drawn full pay;

and that the actual pay obtained by him/her

ought to have been reckoned.

5. Sri.M.Sasindran - learned Standing

Counsel for the Pension Board, in response,

submitted that his client has gone by the

definition of 'Pay', as available in Clause 2(g)

of the 'Pension Scheme', which means Basic Pay,

Special Pay, Personal Pay, Dearness Allowance

and any other amount ordered to be treated as

'Pay' such as Consolidated Pay.

6. Sri.M.Sasindran pointed out that, since

the petitioner did not draw any pay during the

period of thirteen years and three months - when

he was facing the order of termination, it was

justified on his client's side to have not

reckoned that, while computing the pensionable

service. He thus prayed that this writ petition WP(C) NO. 766 OF 2022

be dismissed. Sri.M.Sasindran concluded his

submissions saying that, in fact, an amount of

Rs.65,932/-, as is reflected in Ext.P10, has

been repaid to the Society being the amount

which they have computed to be in excess.

7. Sri.Joshy Thannickamattam - learned

Government Pleader, also adopted the afore

submissions of Sri.M.Sasindran, pointing out

that, in Ext.P15, it has been clearly stated by

the Government that, since the petitioner was

reinstated in service only with 50% backwages,

he could not be seen to have received 'Pay'

during the period in question.

8. Smt.M.M.Deepa - learned Standing Counsel

for the Society, submitted that her client has

no specific comment to make on the controversy

projected by the petitioner and will abide by

any directions to be issued by this Court. WP(C) NO. 766 OF 2022

9. I have examined the pleadings on file

and the documents on record, on the touchstone

of the rival submissions made at the Bar.

10. There is no doubt, as rightly argued by

Sri.M.Sasindran, that the word 'Pay' has been

defined in Clause 2(g) of the 'Pension Scheme',

to include Basic Pay, Special Pay, Personal Pay,

Dearness Allowance and any other amount ordered

to be treated as 'Pay' such as Consolidated Pay.

Prima facie, what is intended is that the actual

pay obtained by an employee will have to be

reckoned and not any other amount.

11. Going by the facts involved in this

case, when this Court directed reinstatement of

the petitioner with 50% backwages, it can only

be construed that his pay for the period of

thirteen years and three months, or such other,

was reduced to 50%. This does not mean that he

was not paid any 'Pay' during that period; but WP(C) NO. 766 OF 2022

on the contrary, that his 'Pay' was reduced to

50%.

12. To paraphrase, the actual pay obtained

by the petitioner was 50% of what he would have

been entitled to; and I, therefore, cannot

fathom how the Pension Board takes the stand

that, in view of the directions of this Court in

Ext.P2 judgment, his service of thirteen years

and three months must be construed to be one

without any 'Pay'.

13. In the afore perspective, the matter

will have to be reconsidered by the 'Pension

Board' because, the quantum of pension eligible

to an employee would depend upon the actual pay

enjoyed by him during his service period.

14. The 'Pension Board' will, therefore,

have to consider if the pensionable service is

to be computed on the basis of the actual pay

received by the petitioner, with the resultant WP(C) NO. 766 OF 2022

benefits fixed to an apposite quantum, as would

commensurate to such payments received by the

employee.

15. I am persuaded to order the course as

afore, because, the 'Pension Board' has refused

to reckon the period of thirteen years and three

months, solely because they seem to be under the

impression that said period should be treated as

one in which the petitioner obtained no 'Pay' at

all, which appears to be contrary to the facts,

particularly going by the declarations in Ext.P2

judgment.

16. This is more so because, while the

punishment imposed on the petitioner by the

Society was substituted by the Labour Court,

which was then granted imprimatur by this Court

in Ext.P2. Indubitably, it was never intended

that he shall suffer a further prejudice, other

than what was recorded therein, by way of loss WP(C) NO. 766 OF 2022

of entire pension, consequent to the fact that

he was kept out of service for thirteen years

and three months on account of an illegal

termination, as had been found subsequently.

This also ought to have weighed with the

'Pension Board', before it could have issued

their order, which has been upheld by the

Government in Ext.P15 proceedings.

Resultantly, I order this writ petition and

set aside Ext.P15; with a consequential

direction to the 'Pension Board' to reconsider

the matter, after affording the petitioner, as

also the Society, an opportunity of being heard

and taking note of my observations above, in

particular the declarations in Ext.P2 judgment;

thus culminating in an appropriate order and

necessary action thereon, as expeditiously as is

possible, but not later than four months from

the date of receipt of a copy of this judgment. WP(C) NO. 766 OF 2022

Needless to say, the 'Pension Board' will be

at full liberty to invoke all their powers under

Clause 38 of the 'Pension Scheme' and to recover

any amount, which they may find necessary, from

the Society, should they do not choose to honour

it.

At this time, Sri.M.Sasindran - learned

Standing Counsel for the Pension Board,

intervened to say that, going by Clause 3 of the

'Pension Scheme', what is relevant is the 'Pay'

because 10% of it has been mandated to be the

contribution every month. He submitted that,

therefore, if the actual pay of the petitioner

is to be considered as being the figure set by

this Court in Ext.P2, then the quantum of

pension will also have to be proportionally

reduced.

WP(C) NO. 766 OF 2022

Of course, this argument is a very tenable

one and it is upto the 'Pension Board' to take

an apposite decision on the same; for which

purpose, the liberty already reserved to them in

the afore paragraphs, would be sufficient.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 766 OF 2022

APPENDIX OF WP(C) 766/2022

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE AWARD DATED 08.01.2001 IN ID NO.6/1992 ON THE FILE OF THE LABOUR COURT, KOLLAM.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 18.09.2003 IN OP NO.6215/2002 OF THIS HONOURABLE COURT.

EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 17.03.2004 IN WA NO.2109/2003 OF THIS HONOURABLE COURT.

EXHIBIT P4 TRUE COPY OF RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER.

EXHIBIT P5 TRUE COPY OF STATEMENT FOR THE REMITTANCE OF PENSION FUND CONTRIBUTION ALONG WITH THE PAY IN SLIP DATED 03.08.2009.

EXHIBIT P6 TRUE COPY OF DEMAND NOTICE DATED 09.09.2009 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF REVIEW APPLICATION DATED 10.06.2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF REMINDER DATED 18.04.2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF ACKNOWLEDGEMENT DATED 23.04.2013.

EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 20.06.2018 (OBTAINED BY THE PETITIONER WP(C) NO. 766 OF 2022

FROM THE 4TH RESPONDENT BANK).

EXHIBIT P11 TRUE COPY OF THE REMINDER DATED 26.08.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 15.07.2021 IN WPC NO.12026/2021 PASSED BY THIS HONOURABLE COURT.

EXHIBIT P13 TRUE COPY OF THE APPEAL MEMORANDUM DATED 27.07.2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P14 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT.

EXHIBIT P15 TRUE COPY OF THE ORDER DATED 06.10.2021 PASSED BY THE 1ST RESPONDENT.