Shiney Zachariah vs The Kerala State Co-Operative ...
2023 Latest Caselaw 7574 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 14TH DAY OF JULY 2023 / 23RD ASHADHA, 1945
                       WP(C) NO. 42707 OF 2022


PETITIONER:

            SHINEY ZACHARIAH, AGED 62 YEARS
            W/O. JOSE K PETER, KOCHUPARAMBIL HOUSE,
            VETTATHUKAVAL, PUTHUPPALLY P.O.,
            VIA MUVATTUPUZHA, KOTTAYAM DISTRICT,
            PIN - 686911

            BY ADVS.
            MANU GOVIND
            AYESHA MARIA JOHN


RESPONDENTS:

    1       THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD
            REPRESENTED BY ITS ADDITIONAL REGISTRAR/SECRETARY,
            KALA NIVAS, T.C NO.27/156,157, NEAR AYURVEDA COLLEGE
            KUNNUMPURAM,PB NO.85, THIRUVANANTHAPURAM, KERALA,
            PIN - 695001

    2       THE PUTHUPALLY SERVICE CO-OPERATIVE BANK LTD NO. 1504
            PUTHUPPALLY P.O., KOTTAYAM DISTRICT 686 011
            REPRESENTED BY ITS SECRETARY, PIN - 686011

            BY ADVS.
            SRI.M.SASINDRAN, SC,
            SRI.KURIAN P.M


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 42707/22
                                            2



                               JUDGMENT

The petitioner retired, on attaining the age of

superannuation, from the services of the 2nd respondent - Society

on 31.05.2018. She says that, even though the Society applied for

her enrollment, under the Kerala Co-operative Societies Employees

Self Financing 'Pension Scheme', 1994 (hereinafter referred to as

'the Pension Scheme' for short), before the 1 st respondent - Kerala

State Co-operative Employees Pension Board ('Pension Board' for

short), it was rejected for the reason that her initial appointment

was irregular. She says that, therefore, she approached this Court,

to obtain Ext.P1 judgment, whereby, she was allowed to prefer a

Statutory Appeal before the Government, under Section 28A of the

'Pension Scheme'.

2. The petitioner submits that the Government, based on

her Appeal filed in terms of the afore liberty, issued Ext.P2 order

finding that she was entitled to have been enrolled in the 'Pension

Scheme', but that, even though this order was issued on

25.01.2020, the 'Pension Board' took no action, thus forcing her WPC 42707/22

to approach this Court again through WP(C)No.5560/2021, which

culminated in Ext.P3, wherein, the Society was directed to make

necessary application for enrollment of the petitioner and to remit

the requisite contribution; with a further direction to the 'Pension

Board' to pay eligible pension to her within the time frame

mentioned therein. She says that the 'Pension Board' thereafter,

favoured her with monthly pension, but not the arrears from

01.06.2018 till 31.05.2021.

3. The petitioner says that hence, she approached this

Court again, by preferring WP(C)No.30690/2021, leading to Ext.P4

judgment, which permitted her to file a representation before the

'Pension Board' and ordering them to consider it in terms of law.

She says that the 'Pension Board' has now issued Ext.P5, wherein,

they have justified their stand of not paying pension to her for the

afore period, saying that she was enrolled only in May 2021; and

therefore, that, as per Clause 20(3) of the 'Pension Scheme', she

would be entitled to pension only from the succeeding month in

which the remittance was made by the Society. She says that this

stand of the 'Pension Board' in Ext.P5 is illegal and unlawful; and WPC 42707/22

thus prays that same be set aside.

4. Sri.Manu Govind - learned counsel for the petitioner,

further argued that, in normal circumstances, the rigour of Clause

20(3) of the 'Pension Scheme' may have operated against his client,

if the Society had refused to enroll her or to pay the contribution.

He explained that, however, in this case, the Society applied in

time before the 'Pension Board' to enroll his client in the 'Pension

Scheme'; but that it was the latter who illegally rejected it, leading

to Ext.P1 judgment being delivered. He submitted that when

Ext.P2 order was thereafter issued by the Government - which

was fully accepted by the 'Pension Board' - they ought to have

allowed her enrollment from the date of initial application of the

Society and to have paid pension from the date of her retirement;

but that they refused to do so, thus forcing his client again to

approach this Court and obtain Ext.P3 judgment and finally,

Ext.P4. He submitted that, in such a scenario, the 'Pension Board'

cannot seek refuge under Clause 20(3) of the 'Pension Scheme' and

that they are now obligated to pay his client full arrears of

pension, especially because the Society has filed a counter affidavit WPC 42707/22

averring that they have remitted the entire contribution eligible to

her, along with 10% interest, as demanded by the said Board. He

thus prayed that the reliefs sought for in this Writ Petition be

granted.

5. Sri.M.Sasindran - learned Standing Counsel for the

'Pension Board', in refutation, submitted that, whatever be the

explanation that the petitioner may offer, it is a statutory bar

under the 'Pension Scheme' to grant arrears to any person for the

period when the contribution had not been remitted by the

employer Society. He explained that the Society made remittances

to the 'Pension Board' only in May 2021 and that his client,

thereupon, promptly disbursed the pension eligible to the

petitioner from next month onwards, which is being continued till

today. He added that another reason why the petitioner is not

entitled to the benefits as claimed in this Writ Petition is that the

Society had not applied for the enrollment one year prior to her

retirement, in the year 2018. He thus pleaded that this Writ

Petition be dismissed.

6. The afore rival submissions being recorded, it is evident WPC 42707/22

therefrom that the 'Pension Board' defends Ext.P5 solely on the

strength of Clause 20(3) of the 'Pension Scheme'. This clause

certainly makes it luculent that no retired employee would be

entitled to pension, except from the succeeding month when the

remittance is made by the employer-Society.

7. However, this is not a case where the employer-Society

had failed to remit the contribution, or to have made an

application for enrollment of the petitioner. They did so, but it

was rejected by the 'Pension Board' saying that her initial

appointment by them was irregular. However, the Government

took a contrary view and directed the 'Pension Board', through

Ext.P2, to enroll the petitioner, which is to mean from the date on

which the application was made by the Society.

8. The afore being so, the further contention of

Sri.M.Sasindran, that the petitioner's application for enrollment in

the year 2017 was liable to be rejected for the reason that the

Society did not make it before one year of her superannuation, is

untenable and cannot be found warranting any merit. This is

because, if they had any such case, it ought to have been impelled WPC 42707/22

before the Government when Ext.P2 was issued; but, as is evident

from the contents, its competent Authority directed the petitioner

to be enrolled by the 'Pension Board', which is to mean, after

rejecting every contention to the contrary.

9. Therefore, the only surviving question this Court should

consider is whether the 'Pension Board' should be granted the

benefit of Clause 20(3) of the 'Pension Scheme', in the peculiar

circumstances noticed in this case.

10. My answer to this is certainly to the negative because,

as I have already said above, had it been a case where the Society

had not applied for enrollment of the petitioner in time, or not

paid the contribution as per the 'Pension Scheme', the 'Pension

Board' would have been surely justified in denying pension to her,

except from the succeeding month, in which said remittance was

made.

11. On the contrary, as manifest from the afore narrative, it

is the 'Pension Board' which refused to accept the directions of the

Government to enroll the petitioner, thus leading to at least two

more Writ Petitions to be filed by her; and then to take the stand WPC 42707/22

that she would not be entitled to any pension prior to May 2021.

This is a clear case where the 'Pension Board' is trying to take

advantage of the wrong committed by them; and perspicuously,

therefore, the rigour of Clause 20(3) of the 'Pension Scheme' would

not apply, at least, not against the petitioner.

12. To paraphrase, when the 'Pension Board' did not

challenge Ext.P2 order, but accepted it, they ought to have

enrolled the petitioner immediately thereafter and to have accepted

remittances from the Society invoking Clause 38 of the 'Pension

Scheme', but they maintained a stoic silence and invited further

orders from this Court in the aforesaid Writ Petitions forced to

have been filed by the petitioner.

13. In the above factual scenario, this Court cannot find

favour with Ext.P5 and it is certainly liable to be set aside.

Resultantly, I order this Writ Petition and set aside Ext.P5;

with a corollary, but necessary, direction to the 'Pension Board' to

disburse the arrears of pension between 01.06.2018 and 31.05.2021

to the petitioner, within a period of two months from the date of

receipt of a copy of this judgment.

WPC 42707/22

I, however, clarify that, should the 'Pension Board' find that

any further remittance is to be made by the Society for this

purpose, it will be at full liberty to demand the same and recover

it from them, under the provisions of Clause 38 of the 'Pension

Scheme'.

Needless to say that since the afore directions have been

issued specifically noticing the singular facts presented, it would

not operate as a precedent in any other case in future.

Sd/-

RR                                      DEVAN RAMACHANDRAN
                                              JUDGE
 WPC 42707/22


                APPENDIX OF WP(C) 42707/2022

PETITIONER EXHIBITS
Exhibit P1          COPY OF THE JUDGMENT DATED 30.07.2019 IN
                    WPC 12446 OF 2019 OF THIS HONOURABLE
                    COURT
Exhibit P2          TRUE COPY OF ORDER NO.G.O.(RT)
                    56/2020/COOP DATED 25.01.2020
Exhibit P3          TRUE COPY OF THE JUDGMENT DATED
                    22.06.2021 IN WPC 5560 OF 2021 OF THIS
                    HONOURABLE COURT
Exhibit P4          TRUE COPY OF THE JUDGEMENT DATED
                    24.01.2022 IN WPC NO. 30690 OF 2021 OF
                    THIS HONOURABLE COURT
Exhibit P5          COPY OF THE ORDER NO. P.B.L.O.1973/2022
                    DATED 23.03.2022 FROM THE 1ST RESPONDENT
Exhibit P6          TRUE COPY OF THE COMMUNICATION NO.

P.P.Y/2786/2021 DATED 09.06.2022 FROM THE 2ND RESPONDENT Exhibit P7 TRUE COPY OF THE CIRCULAR EM(5)41724/2012 DATED 19.11.2012 (CIRCULAR NO. 44/2012) RESPONDENT EXHIBITS Ext. R2(a) Photocopy of Demand Notice Ext. R2(b) Photocopy of Chellan Receipt Ext. R2(c) Photocopy of Demand Notice Ext. R2(d) Photocopy of Chellan Receipt and Statement Ext. R2(e) Photocopy of Service book