Kerala High Court
M.Sadasivan vs Kerala State Warehousing Corporation on 12 November, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
2024:KER:84408
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 12TH DAY OF NOVEMBER 2024/21ST KARTHIKA,1946
W.A. NO. 1378 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 01.07.2020 IN WP(C)
NO.4550 OF 2020 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2:
1 KERALA STATE WAREHOUSING CORPORATION
REP BY ITS MANAGING DIRECTOR, P B NO. 1727,
ERNAKULAM DISTRICT, KOCHI-682016.
2 THE CHAIRMAN
KERALA STATE WAREHOUSING CORPORATION EMPLOYEES,
PENSION FUND AND OTHER RETIREMENT BENEFITS FUND
TRUST, P B NO.1727, ERNAKULAM DISTRICT,
KOCHI-682016.
BY ADVS.
SRI.RENJITH THAMPAN (SR.)
SRI.MAJNU KOMATH
SRI.SAJEEV T.K.
2024:KER:84408
2
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
RESPONDENTS/PETITIONERS & 3RD RESPONDENT:
1 KERALA STATE WAREHOUSING CORPORATION PENSIONERS
ASSOCIATION
REP BY ITS SECRETARY, SRI CHANDRAKANTH, AGEED
65 YEARS, S/O LATE T K NAIR, SITHARA,
THYKOODAM, VYTTILA, ERNAKULAM DISTRICT-682019.
2 A SASIDHARAN
AGED 70 YEARS
S/O LATE BAHULEYA MENON, RETD. ZONAL MANAGER,
KERALA STATE WAREHOUSING CORPORATION, RESIDING
AT POURNAMI, INDIRA NAGAR, KADAVANTHARA,
ERNAKULAM DISTRICT-682020.
3 KERALA STATE WARE HOUSING
CORPORATION OFFICER'S ORGANIZATIONS, REG NO
EKM/TC/573/2016, ERNAKULAM, REP BY ITS
SECRETARY SRI DILEEP KUMAR.
4* THE REGIONAL PROVIDENT FUND COMMISSIONER,
REGIONAL OFFICE,KOCHI-682017
*THE ABOVE RESPONDENT IS IMPLEADED AS
ADDITIONAL 4TH RESPONDENT AS PER ORDER DATED
1/9/2022 IN IA 1/22 IN WA 1378/20.
BY ADVS.
SRI.ELVIN PETER P.J.
P.BENNY THOMAS
SHRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND
ORGANISATION
SRI.K.R.GANESH
D.PREM KAMATH
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING
ON 21.10.2024, ALONG WITH WA.134/2021, 191/2021 AND
CONNECTED CASES, THE COURT ON 12.11.2024 DELIVERED THE
FOLLOWING:
2024:KER:84408
3
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 12TH DAY OF NOVEMBER 2024/21ST KARTHIKA,1946
W.A. NO. 1440 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 01.07.2020 IN WP(C)
NO.4625 OF 2020 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2:
1 KERALA STATE WAREHOUSING CORPORATION
REPRESENTED BY ITS MANAGING DIRECTOR, P.B. NO.
1727, ERNAKULAM DISTRICT, KOCHI - 682016.
2 THE CHAIRMAN
KERALA STATE WAREHOUSING CORPORATION EMPLOYEES
PENSION FUND AND OTHER RETIREMENT BENEFITS FUND
TRUST, P.B. NO.1727, ERNAKULAM DISTRICT, KOCHI
- 682016.
BY ADVS.
RENJITH THAMPAN (SR.)
SRI.MAJNU KOMATH
SRI.SAJEEV T.K.
2024:KER:84408
4
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
RESPONDENT/PETITIONER:
M.SADASIVAN
AGED 75 YEARS
(RETIRED GODOWN KEEPER), KERALA STATE
WAREHOUSING CORPORATION THRIPUNITHURA,
ERNAKULAM DISTRICT), SARASWATHI NIVAS,
KALARICKAL LANE, A.R.R.A 33, VAIKOM ROAD,
TRIPUNITHURA - 682301.
BY ADVS.
SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.K.N.REMYA
SMT.L.ANNAPOORNA
SHRI.VISHNU V.K.
KUM.ABHIRAMI K. UDAY
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING
ON 21.10.2024, ALONG WITH WA.1378/2020 AND CONNECTED
CASES, THE COURT ON 12.11.2024 DELIVERED THE FOLLOWING:
2024:KER:84408
5
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 12TH DAY OF NOVEMBER 2024/21ST KARTHIKA,1946
W.A. NO. 134 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 01.07.2020 IN WP(C)
NO.4550 OF 2020 OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 KERALA STATE WAREHOUSING CORPORATION PENSIONERS
ASSOCIATION
PENSIONERS ASSOCIATION, REPRESENTED BY ITS
SECRETARY, SHRI CHANDRAKATH, AGED 65 YEARS, S/O
LATE T K NAIR, SITHARA, THYKOODAM, VYTTILA,
ERNAKULAM DISTRICT-682068.
2 A SASIDHARAN,
AGED 70 YEARS
S/O LATE BAHULEYA MENON, RETD. ZONAL MANAGER,
KERALA STATE WAREHOUSING CORPORATION, RESIDING
AT POURNAMI, INDIRA NAGAR, KADAVANTHRA,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
SMT.KAIMAL PRIYA PADMANABHA
SMT.GOURI BALAGOPAL
2024:KER:84408
6
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
RESPONDENTS/RESPONDENTS:
1 KERALA STATE WAREHOUSING CORPORATION
REPRESENTED BY ITS MANAGING DIRECTOR, P B
NO.1727, ERNAKULAM DISTRICT, KOCHI-682016.
2 THE CHAIRMAN
KERALA STATE WAREHOUSING CORPORATION, EMPLOYEES
PENSION AND OTHER RETIREMENT, BENEFITS FUND
TRUST, P B NO. 1727, ERNAKULAM DISTRICT,
KOCHI-682016.
3 KERALA STATE WAREHOUSING CORPORAITON
OFFICERS ORGANIZATION, REG. NO.
EKM/TC/573/2016, ERNAKULAM, REPRESENTED BY ITS
SECRETARY SRI DILEEP KUMAR.
SRI.RENJITH THAMPAN (SR.)
SRI. SAJEEV T.K.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.10.2024, ALONG WITH WA.1378/2020 AND CONNECTED CASES,
THE COURT ON 12.11.2024 DELIVERED THE FOLLOWING:
2024:KER:84408
7
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 12TH DAY OF NOVEMBER 2024/21ST KARTHIKA,1946
W.A. NO. 191 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 01.07.2020 IN WP(C)
NO.4625 OF 2020 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
M.SADASIVAN
AGED 76 YEARS
(RETIRED GODOWN KEEPER, KERALA STATE
WAREHOUSING CORPORATION, THRIPPUNITHURA,
ERNAKULAM DISTRICT), SARASWATHI NIVAS,
KALARICKAL LANE, A.R.R.A.33, VAIKOM ROAD,
TRIPPUNITHURA.
BY ADVS.
SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.K.N.REMYA
SMT.L.ANNAPOORNA
SHRI.VISHNU V.K.
KUM.ABHIRAMI K. UDAY
2024:KER:84408
8
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
RESPONDENTS/RESPONDENTS 1 & 2:
1 KERALA STATE WAREHOUSING CORPORATION
REPRESENTED BY ITS MANAGING DIRECTOR,
P.B.NO.1727, ERNAKULAM DISTRICT, KOCHI - 682
016.
2 KERALA STATE WAREHOUSING CORPORATION EMPLOYEES'
PENSION AND OTHER RETIREMENT BENEFITS FUND
TRUST
P.B.NO.1727, ERNAKULAM DISTRICT, KOCHI - 682
016, REPRESENTED BY ITS CHAIRMAN(CAUSE TITLE
CORRECTED BY ORDER DATED 25/06/2020 ON
I.A.NO.1/2020 IN W.P.(C) NO.4625/2020).
SRI.RENJITH THAMPAN (SR.)
SRI.SAJEEV T.K.
SRI.MAJNU KOMATH
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING
ON 21.10.2024, ALONG WITH WA.1378/2020 AND CONNECTED
CASES, THE COURT ON 12.11.2024 DELIVERED THE FOLLOWING:
2024:KER:84408
9
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
-----------------------------------------------------------
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
-----------------------------------------------------------
Dated this the 12th day of November, 2024
JUDGMENT
P.G.Ajithkumar, J.
These appeals arose on the common judgment dated
01.07.2020 in W.P.(C) Nos.4550 of 2020 and 4625 of 2020.
The Kerala State Warehousing Corporation Pensioners'
Association and a former employee of the Kerala State
Warehousing Corporation filed W.P.(C) No.4550 of 2020.
Another former employee of the Kerala State Warehousing
Corporation filed W.P.(C) No.4625 of 2020. Similar reliefs were
claimed. They sought a writ of mandamus directing the Kerala
State Warehousing Corporation to re-fix pensionary benefits
due to the retired employees of the Corporation taking into
account the last pay at the revised rate drawn on the date of
retirement of each of them. Arrears of pension was also
claimed. As per the impugned judgment, the learned Single
Judge disposed of the writ petitions ordering that the
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
employees were entitled to pension as decided in R2(g)
resolution alone after its date, i.e., 12.04.2018. It was further
ordered as follows:
"18. xx xx The petitioners would therefore be entitled to
pension as calculated on the basis of emoluments at
revised rate but within the upper limit of Rs.3,650/- and
dearness relief for the period upto 12.04.2018 and the
respondents have to disburse pension accordingly. The
respondents shall take note of the age of the
petitioners, who have been fighting for the pension
right from 2001 and take expeditious steps to disburse
the pension due to them along with arrears for the
period upto March, 2018 within a period of 3 months
from the date of receipt of a copy of the judgment."
2. Aggrieved thereby, common respondents in the
writ petitions filed W.A.Nos.1378 of 2020 and 1440 of 2020.
The petitioners in W.P.(C) No.4550 of 2020 filed W.A.No.134
of 2021 and the petitioner in W.P.(C) No.4625 of 2020 filed
W.A.No.191 of 2021.
3. The main plank of contentions of the Kerala State
Warehousing Corporation (for short "the Corporation") is that
in the event of making payment of pension in the revised
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
rate along with arrears, the entire corpus of the pension fund
would be depleted and the fund will lead to self-liquidation.
This Court made several efforts by exploring the possibility
of getting contributions from the Government as well as the
Corporation to the corpus fund of the pension scheme. In
that endeavour, this Court as per the order dated
22.07.2022 engaged an actuarial valuer to undertake a
valuation of the pension fund created under the Kerala State
Warehousing Corporation Employees' (Pension and Other
Retirement Benefits) Regulations, 1998 (for short "the
Pension Regulations"). A report was directed to be submitted
within a period of three weeks. What came out from the
examination by the actuarial valuer was that the pension
fund available was Rs.14.86 crores and the liability was
Rs.31.88 crores. It was also reported that the pension fund
was heavily unfunded. This Court therefore directed to
implead Employee's Provident Fund Organisation (EPFO).
Impelading was thereby done also. But no solution could be
arrived at.
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
4. As agreed to between the parties, this matter was
referred for mediation in terms of the order dated
01.07.2024. A report dated 06.08.2024 was submitted by the
Ernakulam Mediation Centre stating that the matter could not
be settled. Hence we proceeded to hear the matter on its
merits.
5. Heard the learned Senior Counsel, Sri. Renjith
Thampan appeared on instructions for the appellants in
W.A.Nos.1378 and 1440 of 2020, the learned Senior Counsel,
Sri. Elvin Peter appeared on instructions for the appellants in
W.A.No.134 of 2021, the learned counsel for the appellant in
W.A.No.191 of 2021 and the learned counsel for the party
respondents.
6. This is the second round of litigations concerning
the matter in dispute. The facts leading to the present appeals
are briefly stated below:
The Kerala State Warehousing Corporation was incorporated
under Section 18 of the Warehousing Corporation Act, 1962
(for short "the Act"). Section 42 of the Act enables to
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
formulate regulations with previous sanction of the
Government, which are necessary for the purpose of giving
effect to the Act, including conditions of service and
remuneration payable to the employees. There was no
scheme for payment of pension to the employees under the
existing regulations. Hence, permission was availed from the
Government for framing a regulation concerning payment of
pension to the employees of the Corporation. As per G.O.(Ms)
No.48/96/AD dated 01.02.1996, Ext.R2(a), the Government
granted approval for the introduction of a pension scheme in
the Corporation utilising the funds available under the
Contributory Provident Fund Accounts and other resources,
subject to the specific condition that there would be no
funding support from the Government. Accordingly, Pension
Regulations was formulated, which is Ext.R2(b).
7. Alleging nonpayment of pension to the employees
based on the revised scale of pay, a few employees retired
during the period from 1997 to 2000 approached this Court by
filing O.P.No.2463 of 2022. The claim therein was that the
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
pension should be calculated on the basis of the salary as
revised with effect from 01.03.1997. This Court as per Ext.P1
judgment allowed the said original petition. The Government
as well as the Corporation were directed to find out a solution
in regard to the financial insufficiency. A writ appeal,
W.A.No.2027 of 2010 was filed, which was allowed to the
extent of exempting the Government from the responsibility
of bailing out the Corporation from the financial stringency.
Ext.P2 is the judgment.
8. The Corporation filed R.P.No.1017 of 2013. As per
Ext.P3 order in the R.P., this Court ordered that the
pensioners were entitled to get their pension computed only
at their pre-revised rate with the minimum and maximum
being Rs.375/- and maximum of Rs.3,650/- per month. The
matter was taken up before the Apex Court in Civil Appeal
Nos.3679-3680 of 2017. The appeals were allowed by the
Apex Court ordering that the pension should be calculated in
accordance with the rules as per applicable pay scales from
the relevant time. Ext.P4 is the order. That entitled the
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
pensioners to get their pension calculated on the basis of the
salary they drew at the time of retirement at the revised
scale.
9. The said direction was not timely implemented by
the Corporation. Therefore, the employees approached the
Apex Court by filing petitions for contempt of court and also
seeking clarification. The Apex Court did not entertain the said
petitions. Thereafter these writ petitions were filed.
10. The 2nd respondent has filed a detailed counter-
affidavit producing therewith Exts.R2(a) to R2(g). Essential
contention was that the Corporation calculated the pension
due to the retired employees in terms of the directions
contained in Ext.P4 order. But on account of the financial
crunch, the pension fund trust committee invoked Clause 3(4)
of the Pension Regulations and decided to restrict the
maximum pension as Rs.3,650/-. It was so decided in order to
save the fund from self-liquidation. The Corporation thus took
the stand that the pensioners could not be paid pension
calculated on the basis of the revised rate of salary as on the
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
date of retirement, except interim relief upto Rs.1000/-. As
regards the arrears of pension also, the Corporation has taken
such a stand. The learned Single Judge, after considering the
matter in detail, took the decision as stated above.
11. The learned Senior Counsel on behalf of the
Corporation would submit that the question is not as to the
entitlement of the pensioners to get pension on the basis of the
salary at revised rate since, in that regard there can be no
dispute inasmuch as the issue was concluded by the Apex Court
in Ext.P4 order and that question is no longer amenable to a
contest. The question is whether the decision taken by the
Committee of Trustees as per Ext. R2(g) resolution is valid.
12. Clause-3 in the Pension Regulations is extracted
below:
"3. Constitution of the Fund:- (1) The Corporation shall
establish and maintain a Fund entitled "The Kerala State
Warehousing Corporation Employees Pension and other
Retirements Benefits Fund".
2. The Fund shall consist of:-
(a) a one time contribution of Rs.21 lakhs
(Rupees twenty one lakhs only) from the accrued profits
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
of the Corporation:
Provided that no further contribution shall be made
by the Corporation, except as provided in this regulation,
for any reason whatsoever and it shall be the duty of the
Trust Committee to keep the Fund financially sound;
(b) The employer's contribution of 10% of basic
pay plus D.A hitherto made and transferred from the
contributory Provident fund Account of the Corporation
together with interest as on 1.2.1996;
(c) The employer's annual contribution to the
Fund at the rate at which the employer would have
contributed, has the Contributory Provident Fund
Scheme would have continued;
(d) The balance in the Corporation's contribution
account standing to the credit of the subscribers in the
existing contributory Provident Fund Account including
investments made therefrom;
(3) The Fund shall vest in and be administered by a
Committee of Trustees comprising of Managing Director
of the Corporation as the Chairman, an official member
of the Board of Directors nominated by the Board, two
representatives of the management nominated by the
Board, two representatives of the employees and one
pensioner nominated by the Managing Director. The term
of each member of the Committee shall be three years
or for a shorter periods as may be decided by the Board
of Directors.
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
(4) In future at any point of time if the Fund cannot
pay pension at the sanctioned rates due to financial
problems the Committee of Trustees will have powers to
take appropriate action to save the Fund from self
liquidation."
13. Obligation of the Corporation to contribute to the
pension fund is as per Sub clause 3(2)(a) and it is one time
payment of Rs.21 lakhs. Citing that the learned Senior Counsel
would submit that there can be no further contribution by the
Corporation. The proviso to sub-clause 3(2)(a) of the Pension
Regulations says that no further contribution shall be made by
the Corporation, except as provided in the Pension Regulations,
for any reason whatsoever. The said clause casts absolute duty
on the Committee of Trustees to keep the fund financially
sound.
14. The subsequent clauses govern the contribution to
be paid by the Corporation under the Pension Regulations.
The obligation to contribute under the said provisions are pre
existing and periodical payments. The said provisions do not
oblige the Corporation to make any other contribution to the
pension fund.
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
15. The further submission of the learned Senior
Counsel is that the financial condition of the Corporation is not
at all viable to make any contribution also. The annual
financial statements reflecting accumulated loss in the
successive years have been produced. Annual statements for
the years 2014-2015 to 2018-2019 were produced along with
a memo dated 24.06.2021 in obedience to the direction of
this Court. On the basis of the said aspects, the learned
Senior Counsel would submit that payment of pension based
on the last drawn salary at the revised rate with effect from
01.03.1997 would be an impossibility and therefore the
decision in Ext.R2(g) is justified.
16. Ext.R2(g) contains the data which the committee
considered for taking a decision invoking clause-3(4) of the
Pension Regulations would be a necessity. Relevant portion of
the minutes is as follows:
"നനിലവനിൽ പപെൻഷണണേഴഴഴ്സ് 430 ണപെരരരും ഫഫാമനിലനി പപെൻഷൻകഫാർ
74 ണപെരരരും ജജീവനകഫാർ 295 ണപെരരമഫാണേരള്ളതഴ്സ്
പപെൻഷണണേഴഴനിൻ്ഴ്സ്പറെ എണരും കകൂടരകയരരും ജജീവനകഫാരരപട
എണരും കരറെയരകയരരും പചെയരന്നതര മകൂലരും പപെൻഷൻ ടടസനിണലകഴ്സ്
കനിടനി പകഫാണനിരനികരന്ന Corporation contribution
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
ആനരപെഫാതനികമഫായനി കരറെഞ്ഞ പകഫാണനിരനികരകയഫാപണേന്നഴ്സ്
ടശജീ.സജജീവഴ്സ്കരമഫാർ.സനി.പക കമനിറനിയനിൽ ണബഫാദദ്ധ്യപപ്പെടരതനി.
ണകഫാർപ്പെണറെഷനഴ്സ്പറെ നനിലവനിപല ജജീവനകഫാർകഴ്സ് സഫാമ്പതനിക
ബഫാധദ്ധ്യത മകൂലരും രണഴ്സ് ണപെ റെനിവനിഷൻ നടപ്പെനിലഫാകനിയനിടനിലഫാത
സഫാഹചെരദ്ധ്യമഫാണേരള്ളപതന്നരരും, ജജീവനകഫാർകഴ്സ് ലഭനിണകണ
അർഹമഫായ DA ണപെഫാലരരും യഥഫാസമയരും ലഭനിചനിടനിപലന്നരരും കമനിറനി
പമമ്പറെഫായ സജജീവഴ്സ്കരമഫാർ കമനിറനിപയ അറെനിയനിചര.
പപെൻഷൻ വർദനവഴ്സ് നടപ്പെനിലഫാകരണമ്പഫാൾ ണവണനി വരരന്ന
അധനിക ബഫാദദ്ധ്യത എടപെകഫാരരും കപണതണേപമന്നഴ്സ് കമനിറനി
ഡയറെകഴ്സ്ടർ ണബഫാർഡനിനഴ്സ് നൽകരന്ന ശരപെഫാർശയനിൽ
ഉൾപപ്പെടരതണേപമന്നഴ്സ് ടശജീമതനി. സജീമ.സനി.സനി അഭനിടപെഫായപപ്പെടര.
പപെൻഷണണേഴഴ്സ്സനിനഴ്സ്പറെ ആവശദ്ധ്യങ്ങൾ അനരഭഫാവ പെകൂർവരും
പെരനിഗണേനികഫാപമന്നരരും ഇതര മകൂലരും വരരന്ന അധനിക സഫാമ്പതനിക
ബഫാദദ്ധ്യത തഫാങ്ങരവഫാൻ പപെൻഷൻ (ടടസനിനഴ്സ് മതനിയഫായ ഫണഴ്സ്
ഇലഫാതതനിനഫാൽ ഫണഴ്സ് കപണതരന്നതനിനരണവണനി ണബഫാർഡഴ്സ്
മരൻപെഫാപക പടപെഫാണപ്പെഫാസൽ സമർപ്പെനികഫാവരന്നതഫാപണേന്നരരും
ടശജീ.അനനിൽ കരമഫാർ അഭനിടപെഫായപപ്പെടര.
വനിശദമഫായ ചെർചകൾകഴ്സ് ണശഷരും എടരത തഫാപഴ പെറെയരന്ന
തജീരരമഫാനങ്ങൾ ണകഫാർപ്പെണറെഷൻ്ഴ്സ്പറെ Board ൽ സമർപ്പെനികരവഫാൻ
കമനിറനി തജീരരമഫാനനിചര.
1. ബഹര. സരടപെജീരും ണകഫാടതനി ഉതരവഴ്സ് No. Civil Appeal
Nos.3679-3680/2017 നടപ്പെനിലഫാകരന്നതരമഫായനി ബന്ധപപ്പെടഴ്സ് ലഭനിച
നനിയമ ഉപെണദശതനിൻ്ഴ്സ്പറെയരരും, പപെൻഷൻ റെഗരണലഷൻ
6(4)നഴ്സ്പറെയരരും അടനിസഫാനതനിൽ റെനിടയർ പചെയരന്ന
ജജീവനകഫാർകഴ്സ് അവരരപട സർവജീസനിനഴ്സ്പറെയരരും റെനിടയർ
പചെയരന്ന സമയപത ആനരപെഫാതനികമഫായ അടനിസഫാന
ശമ്പളതനിനഴ്സ്പറെയരരും അടനിസഫാനതനിൽ പെരമഫാവധനി 3650/-
രകൂപെയനിൽ ണബസനികഴ്സ് പപെൻഷൻ നനിജപപ്പെടരതനി G.O.(MS)
No.356/99/AD dated 27-12-99 ടപെകഫാരരും ഗവപണ്മെനഴ്സ്റെഴ്സ് അരുംഗജീകരനിച
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
ഡനി.എ യരരും ഉൾപപ്പെടരന്ന തരക പപെൻഷനഫായനി കണേകഫാകരവഫാൻ
ടടസഴ്സ് പമമ്പറെരരും, പപെൻഷണണേഴഴസഴ്സ് അണസഫാസനിണയഷൻ്ഴ്സ്പറെ
ടപെസനിഡൻ്ഴ്സ്റെരമഫായ ടശജീ. എ.ശശനിധരൻ്ഴ്സ്പറെ വനിണയഫാജനിണപ്പെഫാപട
കമനിറനി തജീരരമഫാനനിചര.
2. അടനിസഫാന ശമ്പളതനിൻ്ഴ്സ്പറെ പെരമഫാവധനി 3650/- രകൂപെ
നനിജപപ്പെടരതനി പപെൻഷൻ നടപ്പെനിലഫാകരകയഫാപണേങനിൽ
ടപെതനിമഫാസരും ഏകണദശരും 20 ലകരും രകൂപെയഴ്സ്കര ണമൽ അധനിക
ബഫാധദ്ധ്യത ണകഫാർപ്പെണറെഷനഴ്സ് വരരന്നതഫാപണേന്നഴ്സ് കമനിറനികഴ്സ്
ണബഫാദദ്ധ്യപപ്പെടര. അതനരസരനിചഴ്സ് ഇകഫാരദ്ധ്യതനിൽ വരരന്ന അധനിക
ബഫാധദ്ധ്യത കണേകഫാകനി വനിശദമഫായ ണടപെഫാണപ്പെഫാസൽ ണബഫാർഡനിനര
മരൻപെനിൽ സമർപ്പെനികരന്നതനിനഴ്സ് ടടസഴ്സ് കമനിറനി തജീരരമഫാനനിചര.
ഇണപ്പെഫാഴപത ടടസനിനഴ്സ്പറെ സഫാമ്പതനിക സനിതനിയനരസരനിചഴ്സ്
ണമൽപ്പെറെഞ്ഞ പപെൻഷൻ തരക പകഫാടരകരകയഫാ പണേങനിൽ ടടസഴ്സ്
ഫണഴ്സ് തപന്ന ചെരരരങ്ങനിയ കഫാലരും പകഫാണഴ്സ് നഫാമഫാവണശഷമഫാവരരും
എന്ന കഫാര ണേതഫാൽ ണമൽപ്പെറെഞ്ഞ പപെൻഷൻ തരക
ണകഫാർപ്പെണറെഷനഴ്സ്ണറെണയഫാ സർകഫാരനിൻ്ഴ്സ്ണറെണയഫാ സഫാമ്പതനിക
സഹഫായരും കനിടരന്നതനരസരനിചഴ്സ് പകഫാടരകരവഫാൻ തജീരരമഫാനനിചര.
3. പപെൻഷൻ ടടസഴ്സ് ഫണനിൻ്ഴ്സ്പറെ നനിലവനിലരള്ള സഫാമ്പതനിക
പെരനിമനിതനിയനിൽ നനിന്നര പകഫാണഴ്സ് ഏകണദശരും 1000 രകൂപെണയഫാളരും
ഇടകഫാല ആശശഫാസമഫായനി ഗവൺപമനഴ്സ്റെനിൻ്ഴ്സ്പറെ അനരമതനി
കനിടനിയഫാൽ ഉടൻതപന്ന തരക വനിതരണേരും പചെയരവഫാനരരും ടടസഴ്സ്
കമനിറനി തജീരരമഫാനനികരകയരണഫായനി."
English translation of the above decision reads,-
"At present, there are 430 pensioners, 74 family
pensioners and 296 employees. Mr. Sajeev Kumar C.K.
apprised the Committee that the Corporation's
contribution to the Pension Trust is decreasing
proportionately due to the increase in the number of
pensioners and the decrease in the number of
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
employees. Mr. Sajeev Kumar, a member of the
committee, told the committee that there exists a
situation where two pay revisions have not been
implemented for the current employees of the
corporation due to financial liability and that the
employees have not even received their eligible DA on
time.
Smt. Seema C.C. suggested that the recommendations
of the Committee to the Board of Directors should
include how to identify the additional liability that would
be incurred while implementing the pension
enhancement.
Shri Anil Kumar opined that the demands of the
pensioners may be considered benevolently and a
proposal may be placed before the Board for finding
funds as the Pension Trust does not have sufficient
funds to meet the additional financial liability arising out
of this.
After detailed deliberations, the Committee decided to
submit the following decisions before the Corporation
Board.
1. Based on the legal advice received in connection with
the implementation of the Supreme Court Order No.
Civil Appeal Nos 3679-3680/2017 and in accordance
with the provisions of Pension Regulation 6 (4), the
Committee has decided to fix the basic pension for the
retiring employees on the basis of their service and
proportional basic pay at the time of retirement at a
maximum of Rs.3650/- and the amount including DA as
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
approved by the Government under G.O.(MS) No
356/99/AD dated 27-12-99 shall be considered as
pension, with dissent from Mr. A. Sashidharan, Trust
member and the President of pensioner's association.
2. The committee stands convinced that if the pension
is implemented with a maximum of Rs 3,650/- of the
basic pay, then the corporation will have an additional
liability of about Rs 20 lakh per month. Accordingly, the
Trust Committee decided to submit a detailed proposal
to the Board considering the additional liability in this
regard. In view of the fact that if the above pension
amount is paid according to the current financial state
of the trust, the trust fund itself will be exhausted in a
short time, it has been decided to pay the above
pension amount according to the financial assistance
received from the corporation or the government.
3. It has also been decided to disburse an interim
relief of about Rs.1000 from the existing financial limit
of the Pension Trust Fund, as soon as the Government
approves it."
17. The learned Single Judge accepted the contentions
of the Corporation that invocation of sub-clause (4) of
Clause-3 of the Pension Regulations was unavoidable and
therefore the decision as per Ext.R2(g) cannot be held to be
invalid. However, the learned Single Judge held that such a
decision was taken only on 12.04.2018 and therefore the
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
pensioners are entitled to get pension arrears at revised rate
till the said date. The learned Senior Counsel appearing for
the Corporation assails the said view since the same would
result in depletion of the entire pension fund and to its self-
liquidation. Having invited our attention to the data
concerning available corpus of the pension fund, number of
pensioners and family pensioners and also the monthly
contribution to the fund by the operation of Clause-3(2) of the
Pension Regulations, the learned Senior Counsel would submit
that payment of pension based on the salary at the revised
rate is an impossibility. It is accordingly submitted that this is
a case where the principle, lex non cogit ad impossibilia is
applicable. In that regard, the learned Senior Counsel places
reliance on the decisions of this Court in Thomas P.J. v.
Vijayakumari [2014 (2) KHC 265], Thomas v.
Piravanthoor Panchayat [1985 KLT SN 70] and
T.K.Gopinathan v. State of Kerala [1984 KLT 726] and
also the decision of the Apex Court in Raj Kumar Dey v.
Tarapada Day [(1987) 4 SCC 398].
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
18. The learned Senior Counsel appearing for the
appellants in W.A. No.134 of 2021, on the other hand, would
submit that the learned Single Judge totally went wrong in
accepting Ext.R2(g) and absolving the Corporation from
making payment of the pension, which the pensioners are
entitled to get. Going by the provisions of Pension
Regulations, particularly, Clause 3(1)(a), the Corporation
cannot escape from the liability of contributing required funds
to the pension corpus, especially when the pension is not a
bounty, but the constitutional right of the employees.
19. Another contention raised on behalf of the
employees is that when the Managing Director of the
Corporation along with other members of the Trust
Committee, executed a trust deed, Annexure R1(a) produced
along with I.A.No.1 of 2020 in W.A.No.1378 of 2020, the
obligation of the Corporation to contribute to the pension fund
cannot be evaded. Clause (7) in Annexure R1(a), which is
extracted below has been highlighted.
"7. The Warehousing Corporation agrees to make the
contributions to the Trustees as provided in the Rules
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
and also such additional contributions which the
Trustees shall require the Warehousing Corporation to
make providing benefits under the Rules and the
Trustees shall utilise the same for effecting the
aforesaid assurances and maintaining the fund for
providing the benefits described in the Rules."
It is submitted the said clause binds the Corporation, but it
had suppressed the deed without being producing in the writ
petitions. It is accordingly urged that the Corporation should
provide sufficient funds to satisfy the obligations under the
Pension Regulations.
20. The learned Senior Counsel and also the learned
counsel for the appellant in W.A.No.191 of 2021 further would
submit that the liability of the Corporation and the Trust
Committee to pay pension proportionate to the salary at
revised rate was confirmed by the Apex Court as per Ext.P4
order and as such the plea of the Corporation now against it is
barred by constructive res judicata. So the Trust Committee
could not fall upon Ext.R2(g) resolution and try to get
absolved from that obligation. It is accordingly contended that
the writ petitions ought to have been allowed as prayed.
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
21. As per Ext.P4, the Apex Court directed that pension
should be calculated in accordance with the rules as per
applicable pay scales at the relevant time. In view of that
direction, the Corporation cannot now contend that the
pensioners did not have the right to claim pension calculated
on the basis of the revised pay scale as on the date of
retirement. Any plea against it is barred by constructive res
judicata. The contention of the Corporation, however, is on a
different plane. While it is maintained that the Corporation did
not dilute its obligation, the plea is that the Corporation is
compelled to resort to Clause-3(4) of the Pension Regulations
in order to save the pension fund from self liquidation.
22. As could be seen from the said resolution, number
of pensioners was 430 and family pensioners 74. Number of
serving employees was only 295. Going by Clause-3(1) of
Pension Regulations, the periodical contribution to the pension
fund is only based on the salary of serving employees at the
prescribed rate. It is pointed out that the monthly revenue
thereby towards the pension fund is only Rs.9.5 lakhs.
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
Whereas, the amount required to pay pension at the revised
rate would be Rs.40 lakhs a month. It is further pointed out
that the amount required to make payment of arrears of
pension at the revised rate is Rs.40 crores. (As per the
verification by actuarial valuer it is Rs.31.88 crores.) That
being the state of affairs, depletion of the corpus fund, which
is now Rs.14.5 crores (as per the verification of actuarial
valuer it is Rs.14.86 crores), in a few months is certain. It is
in the said circumstances, the Corporation and the Trust
Committee take the stand that the decision as per Ext.R2(g)
is the need of the hour.
23. From the statement of accounts produced and the
report of the actuarial valuer the aforementioned data
cannot be said to be incorrect. The writ petitioners would
rather raise no contention that those data are incorrect. In
such circumstances the question is as to how far the
Government and the Corporation have an obligation to
provide funds in order to meet the obligation under the
Pension Regulations.
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
24. As pointed out above, the Government accorded
permission as per Annexure R2(a) to introduce pension
scheme in the Corporation without any funding support from
the Government. The said position has been accepted by this
Court in Ext.P3 order and the same was not interfered with by
the Apex court in Ext.P4 order.
25. Concerning the obligation of the Corporation the
writ petitioners have a definite plea that it has undeniable
duty to provide sufficient funds. The learned senior counsel
Advocate Elvin Peter would urge that Clause 3(2)(a) of the
Pension Regulations itself obligates the Corporation to
contribute necessary funds for the payment of pension to the
employees. That apart clause-7 in Annexure R1(a) is an
unequivocal undertaking by the Corporation to provide
additional funds which the trustee would require for providing
benefits under the pension regulation. It is submitted that
when Pension Regulations has a statutory effect as observed
in Ext.P2 judgment and binding the Corporation, clause 7 in
Annexure R1(a) which is in the nature of an undertaking
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
cannot be obliterated by the Corporation. Therefore, it is
contended that the plea of impossibility is not available to the
Corporation and the Trust Committee.
26. Annexure R1(a) is a registered trust deed. It is
dated 22.04.2003 and was registered on 19.05.2003. The
contention of the Corporation is that Annexure R1(a) is a civil
document executed by the Trust and it does not bind the
Corporation. This is a trust deed executed by the committee
members of the trust fund and registered without any
concurrence from the Corporation or its Board of Directors. Of
course, the Managing Director of the Corporation is the
Chairman of the fund committee also. A nominated member
from the Board of Directors, two representatives of the
management nominated by the Board, two representatives of
the employees and one pensioner nominated by the Managing
Director are its members. They resolved to register Annexure
R1(a) trust deed. The conditions therein cannot be said to be
with consent or concurrence of the Board of Directors of the
Corporation. Therefore, the contention that in view of clause-7
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
in Annexure R1(a), it shall be the obligation of the Corporation
to make contributions to the pension fund to keep it
financially viable, cannot be accepted.
27. The specific stipulation in the proviso to sub-clause
2(a) of clause-3 of the Pension Regulations is that the
Corporation would have no obligation to contribute to the
pension fund except as provided in the Pension Regulations.
What is provided in the Pension Regulations concerning
contribution to the pension fund is in terms of sub-clauses (a)
to (d), which are extracted above. Therefore, the provisions in
the Pension Regulations also do not obligate the Corporation
to contribute funds required for keeping the pension fund
sound and viable. On the other hand, it shall be the duty of
the Trust Committee to keep the fund financially sound in
terms of the said provision.
28. Yet another contention set forth on behalf of the
Corporation is that owing to slowing down of activities of the
Corporation, loss is being accumulated every year. Since the
number of the serving employees is considerably reduced,
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
monthly contribution to the pension fund is also less. Along
with a memo dated 24.06.2021 annual statements of the
Corporation from the year 2014-2015 to 2018-2019 were
produced. It is seen that in those years huge loss has been
recorded. That makes contribution by the Corporation to the
pension fund practically impossible also. The contention that
making payment of pension in terms of the salary of the
employees at the revised rate is impossible, has to be
considered in the light of the aforementioned circumstances.
29. The Apex Court considered the principle underlying
the maxim lex non cogit ad impossibilia in Raj Kumar Dey
[(1987) 4 SCC 398] and held,-
"The other maxim is lex non cogit ad impossibilia
(Broom's Legal Maxims-P. 162)-The law does not
compel a man to do that which he cannot possibly
perform. The law itself and the administration of it, said
Sir W. Scott, with reference to an alleged infraction of
the revenue laws, must yield to that to which
everything must bend, to necessity; the law, in its most
positive and peremptory injunctions, is understood to
disclaim, as it does in its general aphorisms, all
intention of compelling impossibilities, and the
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
administration of laws must adopt that general
exception in the consideration of all particular cases."
30. A Division Bench of this Court observed in
T.K.Gopinathan [1984 KLT 726] that a statutory rule may
be perfectly reasonable and practicable in its general
application, but in a particular instance, owing to inevitable
circumstances, it may be impossible for an individual to
comply with it. The maxim lex non cogit ad impossibilia then
applies.
31. Although in a different context, the impropriety in
compelling a person to do an act which he is unable to do was
considered by this Court in Thomas P.J. [2014 (2) KHC
265]. It was held that one could not be compelled or
expected to do something which is not possible for him to do.
In such situations, the Court while interpreting the provision
should bear in mind the principle lex non cogit ad impossibilia,
which means the law does not compel a man to do that which
he cannot possibly perform.
32. Dilating the principles of Section 56 of the Indian
Contract Act, 1872 this Court in Thomas [1985 KHC 322]
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
considered the application of the principle of impossibility. Of
course, the obligation of the Corporation is under the Pension
Regulations, which is not a contract, but a statutory
regulation. However, the principle laid down in the said
decision has relevance. It was held,-
"7. xx xx If at the time when the contract was entered
into both the promisor and the promisee were under the
impression that the promisor had a right and on that
basis he could give the contract, but before the
performance of the contract it became evident that he
did not, as a matter of fact, hive that right, then also the
promisee cannot be made liable under the contract. It
will be inequitable to make a party liable if for no fault of
his he could not perform his part of the contract. Even if
the subsequent event was not the making of the
promisor, the promisee will be absolved from liability
when the contract becomes impossible of performance
because of that."
33. The Apex Court considered the applicability of the
doctrine of impossibility insofar as the court orders are
concerned in State of U.P. v. In Re:Inhuman condition at
Quarantine Centres and for providing better treatment
to Corona Positive [Order dated 21.05.2021 in Special
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
Leave to Appeal (C) No.7147 of 2021]. The observations
therein are the following:
"While again appreciating the efforts of the judges of the
High Court in looking to the matter in depth while
passing orders, we are of the opinion that the High
Court should normally consider the possibility of the
implementation of the directions given by it, and such
directions which are incapable of being implemented
should be avoided. The doctrine of impossibility, in our
view, would be equally applicable to court orders as
well."
34. The position in this case is described above. If
pension on the basis of the salary of the retired employees at
the revised rate as on the date of retirement is paid together
with the arrears, the available corpus of the pension fund
would soon be depleted. The result would be that the
employees who already retired and retiring in future will not
get pension at all. Thereby the pension fund would result in
self-liquidation. As pointed out above, neither the Government
nor the Corporation can be compelled to make contributions
to the pension fund under any of the provisions of the Act or
Pension Regulations. In such circumstances, the doctrine of
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
impossibility as explained by the Apex Court and this Court in
the aforementioned decisions applies to the situation. The
doctrine of necessity also applies. Therefore, the view taken
by the learned Single Judge that there could not be a direction
to the Corporation to pay pension based on the salary at the
revised rate as on the date of retirement disregarding the
resolution in Ext.R2(g) is devoid of any infirmity.
35. The learned Single Judge further held that the
decision regarding payment of pension contained in Ext.R2(g)
cannot have retrospective application. The learned Senior
Counsel appearing for the Corporation would submit that the
available corpus of the pension fund of Rs.14.5 Crores would
not be sufficient to meet even that expense. Such a
contention cannot stand since the entitlement of the
employees to get pension on the basis of the salary at the
revised rate is vested in view of Ext.P4 order of the Apex
Court. Since the Trust Committee decided only on 12.04.2018
to invoke sub-clause (4) of Clause-3 of the Pension
Regulations the right accrued in favour of the employees
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
before that date cannot be meddled with by Ext. R2(g)
decision. Hence, we find no reason to interfere with the said
finding in the impugned judgment as well.
The result is that the appeals deserve to be dismissed.
Accordingly, these appeals are dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
PETITIONER ANNEXURES
ANNEXURE-A1 TRUE COPY OF THE APPLICATION UNDER THE
RIGHT TO INFORMATION ACT SUBMITTED BY
SRI. JAYARAJAN K P, BEFORE THE PUBLIC
INFORMATION OFFICER ON 03.04.2018.
ANNEXURE-A2 TRUE COPY OF THE COMMUNICATION NO.
KSWC/RTI/2018-19 DATED 11.05.2018
ISSUED BY THE PUBLIC INFORMATION
OFFICER.
ANNEXURE-A3 TRUE COPY OF THE MEMORANDUM OF REVIEW
PETITION ALONG WITH ANNEXURE-A1 AND
A2.
ANNEXURE-A4 TRUE COLPY OF THE ACTUARIAL REPORT
PREPARED BY THE FIRM ON THE PENSION
SCHEME IN THE KERALA STATE WAREHOUSING
CORPORATION.
ANNEXURE-A5 TRUE COPY OF THE GOVERNMENT ORDER G.O.
(RT) NO.221/2021/AGRI DATED
26.02.2021.
ANNEXURE A6 TRUE COPY OF THE FINA.L REPORT DATED
15.12.2020 WHICH IS OBTAINED BY THE
APPELLANTS UNDER THE RIGHT TO
INFORMATION ACT.
2024:KER:84408
W.A.Nos.1378 & 1440 of 2020 and
134 & 191 of 2021
PETITIONER ANNEXURES
ANNEXURE I TRUE COPY OF THE APPLICATION UNDER THE
RIGHT TO INFORMATION ACT SUBMITTED BY
SRI.JAYARAJAN K.P.BEFORE THE PUBLIC
INFORMATION OFFICER ON 03/04/2018.
ANNEXURE II TRUE COPY OF THE COMMUNICATION
NO.K.S.W.C./R.T.I./2018-19 DATED
11/05/2018 ISSUED BY THE PUBLIC
INFORMATION OFFICER.
