A.MUHAMMED KUNJU v. PUTHIYAKAVU SERVICE CO-OPERATIVE BANK LTD & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938** **WP(C).No. 5971 of 2014 (V) ---------------------------** **PETITIONER:** - **-----------** **A.MUHAMMED KUNJU, KACHERY AYYATH, K.S. PURAM.P.O, KARUNGAPPALLY, KOLLAM.** **BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR SRI.JAIBY PAUL** **RESPONDENT(S):** - **--------------** **1. THE PUTHIYAKAVU SERVICE CO-OPERATIVE BANK LTD, NO. 1240, REPRESENTED BY ITS SECRETARY, K.S. PURAM, KARUNAGAPPALLY, KOLLAM-690544.** **2. THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, REPRESENTED BY ITS SECRETARY, P.B. NO. 85, KALA NIVAS, CHINMAYA LANE, KUNNUMPURAM, THIRUVANANTHAPURAM-695001.** **3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, CO-OPERATION,(C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R1 BY ADV. SRI.B.MOHANLAL R2 BY ADVS. SRI.K.R.SUNIL,SC SRI.M.SASINDRAN, SC R3 BY GOVERNMENT PLEADER SMT POOJA SURENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 5971 of 2014 (V)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** - **P1. COPY OF THE REQUISITION FOR REGISTRATION DATED 21-7-1995 SUBMITTED BY THE FIRST RESPONDENT.** - **P2. COPY OF THE COMMUNICATION NO. PB/OR-1/95-96 20 DATED 28-7-1995 ISSUED BY THE 2ND RESPONDENT.** - **P3. COPY OF THE PAY-IN-SLIP NO.1 DATED 5-12-1995 EVIDENCING THE REMITTANCE CO CONTRIBUTION TO THE 2ND RESPONDENT.** - **P4. COPY OF THE PAY-IN SLIP NO.2 DATED 5-12-1995 EVIDENCING THE REMITTANCE CO CONTRIBUTION TO THE 2ND RESPONDENT** - **P5. COPY OF THE DEMAND NOTICE NO. P1 9257/10 DATED 19-2-2011 ALONG WITH ANNEXURES ISSUED BY THE 2ND RESPONDENT.** - **P6. COPY OF THE PAY-IN-SLIP EVIDENCING THE REMITTANCE OF CONTRIBUTION TO THE 2ND RESPONDENT DATED 23-2-2011.** - **P7. COPY OF THE STATEMENT FOR THE REMITTANCE OF PENSION FUND CONTRIBUTION OF THE 1ST RESPONDENT DATED 23-2-2011.** - **P8. COPY OF THE PENSION PAYMENT ORDER NO. PB PP.668/KLM DATED 24-10-2011 ISSUED BY THE 2ND RESPONDENT.** - **P9. COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 11-11-11.** - **P10. COPY OF THE LETTER NO. PB/P1/1984/KLM DATED 15-12-11 ISSUED BY THE 2ND RESPONDENT.** - **P11. COPY OF THE LETTER NO. PB/PPO/668/KLM 2-4-12 ISSUED BY THE 2ND RESPONDENT.** - **P12. COPY OF THE GO (ORD) NO. 389/2013/CO-OP DATED 19-6-2013.** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** **A.MUHAMED MUSTAQUE, J.** ========================= ## **W.P.(C).No.5971/2014** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 18[th] day of November, 2016 ## **J U D G M E N T** The short issue in this writ petition arises in the context of prescription of qualifying service under the Kerala Co-operative Societies Self Financing Pension Scheme, 1994 (hereinafter referred to as the “Pension Scheme-1994”). 2. The petitioner joined the service of the first respondent/Society on 26.1.1973 and he retired on 28.2.2011. The Society had a contributory provident fund constituted in terms of Section 61 of the Kerala Co-operative Societies Act, 1969. The petitioner joined the contributory provident fund with effect from 1.4.1984. The Pension Scheme-1994 was implemented with effect from 14.3.1995. The first respondent/Society by Ext.P1 dated 21.7.1995 registered three employees including the petitioner under the contributory provident fund with an anterior date. The date of ## **`W.P.(C).No.5971/2014`** ## **-:2:-** joining the Pension Scheme by the petitioner was thus altered to 1.2.1973 from 1.4.1984. The first respondent Society joined the Pension Scheme-1994 with effect from 28.7.1995. 3. The question is whether alteration of commencement of date of joining the contributory provident fund after the implementation of Pension Scheme-1994 would change the commencement of date of joining contributory fund as referred under Rule 19(1)(a) of Pension Scheme-1994. Rule 19(1)(a) provides as follows: **“19. Qualifying Service:-** Qualifying service for granting pension under the Scheme shall be- (1)(a) in the case of an employee who was in the service of a society on the date of application of this Scheme to that society the length of service commencing from the date of joining the Contributory Provident Fund: Provided that the qualifying service shall be limited to the period for which the employer's contribution towards the Provident Fund has been fully paid by the Society in respect of that employee. In the case of part-time contingent employees, commission agents, employees ## **`W.P.(C).No.5971/2014`** ## **-:3:-** not in the regular posts, but who were absorbed in regular service, qualifying service shall be reckoned by counting 50% of the part-time/other services. Provided further that where the was a employee subscriber to any pre-existing Provident Fund Scheme implemented in that Society and contribution made thereon has been transferred to the Pension Fund, such period will also qualify for pension. Provided also that an employee who was on probation and on whose behalf the Contributory Provident Fund contribution has not been remitted at the time of implementation of the scheme, such period of probation shall also qualify for pension, if proportionate employers' contribution together with interest thereon has been credited to the Pension Fund: Provided also that in the case of an employee who was in the service of a society coming under the purview of functional Registrars as on the date of application of this Scheme to that society, the length of service shall commence from the date from which the society resolves to contribute the amount towards Pension Fund in respect of each of the employees, at the time of enrolment in the Pension Scheme.” ## **`W.P.(C).No.5971/2014`** ## **-:4:-** Going by the language of Rule 19(1)(a), irrespective of the date of joining of the Society in the Pension Scheme-1994, the length of service of an employee would be reckoned from the date of the employee joining the contributory fund. Thus, the moment the scheme was implemented and the moment the Society joined the scheme, the length of service of the petitioner would be reckoned based on the status of the length of service of the petitioner as on 14.3.1995, the date on which the Pension Scheme-1995 was implemented. After implementation of the Pension Scheme-1994, any employee or any employer cannot unilaterally change the commencement of length of service under the Pension Scheme-1994 to an anterior date by altering joining date of contributory fund, as this would militate statutory provision. The statute would have an overriding effect and would prevail all actions of the individual. Once the statute fixes a date, fixing the date of joining the contributory fund as the date of joining Pension Scheme-1994, that date comes into force when the Pension Scheme-1994 is implemented. In this case it is clear that the date of joining has been altered to an anterior ## **`W.P.(C).No.5971/2014`** ## **-:5:-** date after the implementation of the Pension Scheme-1994. Therefore, parties cannot by their own act, obliterate statutory provision. In fact, this issue is covered against the petitioner in **Sukumaran N. v. Kerala State Co-operative Employees Pension Board, Trivandrum & Anr. [2010 (4) KHC 859]** wherein it was held as follows: “13. As stated earlier, the relevant factor is what is the employers' contribution standing to the credit of the employee, for the purpose of remitting the same to the pension fund. For the purpose of computing the qualifying service, the length of service commencing from the date of joining the contributory provident fund is the relevant factor. If so, a unilateral act on the part of the employee paying the arrears of employees' contribution from 1.7.1974 would not compel the employer to pay the employers' contribution retrospectively, for the period for which the employee was not a member of the contributory provident fund.” However, it is seen that the petitioner remitted the entire contribution from 1973 onwards. In appeal, the Government ordered refund of such excess amount paid by the petitioner. Accordingly, ## **`W.P.(C).No.5971/2014`** ## **-:6:-** declining relief of full pension from 1.7.1973, there shall be a direction to the Pension Board to refund excess amount collected from the petitioner within one month. The writ petition is disposed of as above. No costs. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ms