Ivan Thomas v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **WP(C).No.12787 OF 2017(W)** ## **PETITIONER:** **IVAN THOMAS, BRANCH MANAGER(RETIRED), KOTTAYAM DISTRICT CO-OPERATIVE BANK, NOW RESIDING AT KARIPPAPARAMBIL HOUSE, PODIMATTAM, PARATHODU P.O, KANJIRAPPALLY, KOTTAYAM DISTRICT.** **BY ADVS. SRI.BIJU MARTIN SRI.D.M.NOWFAL SRI.M.M.SALIM** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, CO-OPERATION (B)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE SECRETARY, KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, THIRUVANANTHAPURAM - 695 001.** **3 THE GENERAL MANAGER KOTTAYAM DISTRICT CO-OPERATIVE BANK, 688 001.** **BY ADVS. SRI.T.A.SHAJI (SR.) SRI.M.SASINDRAN, SC. SRI.ATHUL SHAJI SRI.BIMAL K.NATH, SR.GP, SRI.SUNIL CYRIAC, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.12787 OF 2017(W) 2 ## **JUDGMENT** The petitioner, who is stated to have retired from the services of the Kottayam District Co-operative Bank (for short, 'the Bank') on attaining the age of superannuation on 31.08.2010, prays that the Pension Board be directed to pay him the arrears of pension under the State Co-operative Societies Employees Pension Scheme (for short 'the Scheme') from that date until 31.11.2011, alleging that he was paid his pension only with effect from 01.12.2011. 2. According to the petitioner, the bank had delayed remittance of the employers' contribution to the Pension Corpus and the Pension Board, therefore, offered pension to him only with effect from 01.12.2011. The petitioner asserts that going by Clause 5(2) read with Clause 29 of the Scheme, he is eligible to pension from the next day of his superannuation and therefore, that the delay caused by the bank in remitting their contribution to the Pension Corpus would be of no consequence as far as his entitlement to pension is concerned. He, therefore, prays that the Pension Board be directed to pay the arrears of pension from 01.09.2010 to 31.11.2011. 3. Sri.Biju Martin, the learned counsel for the petitioner, in WP(C).No.12787 OF 2017(W) 3 support of the afore contentions, cites the judgment of this Court in **Thulasi Devi v. Kerala State Co-operative employees Pension Board** [2008 (4) KLT 647] (produced along with this writ petition as Ext.P8); **Easwari v. Kerala State Co-operative Employees Pension Board, Tvm and another** [2015 (5) KHC 388] and **John P.C. and Others v. Kottayam District Cooperative Bank and others** [2017 (3) KHC 326]. He also cites **Sambasivan Nair v. Kerala State Co-operative Employees Pension Board** [2012 (3) KLT SN 129 (C.No.134)]. 4. In answer to the afore, Sri.M.Sasindran, the learned standing counsel for the Board submits that the petitioner cannot make this claim on account of Clause 5(2) of the Scheme which makes it clear that pension will be payable to a retired employee only from the succeeding month of the month on which the remittance of the entire portion of the employer's contribution to Pension Corpus is made and that no arrears of pension “will be payable before the month of such remittance”. He says that the petitioner has chosen not to challenge Clause 5(2) of the Scheme but has approached this Court virtually contending contrary to its mandate. He says, therefore, that the Pension Board is not obligated to make any payment as prayed WP(C).No.12787 OF 2017(W) 4 for in this writ petition. 5. The learned standing counsel appearing for the bank submits that there is no delay from their side in having remitted their contribution to the Pension Corpus because they received amounts from the Employees Provident Fund, under Clause 29(a) of the Scheme, only on 22.07.2011 and that they took merely three months' time, which became essential on account of administrative purposes and so as to reckon the proper accounts to which amounts had to be credited, to transfer the requisite funds into the Pension Corpus in November, 2011. He contends, therefore, that whatever be the claims of the petitioner, no liability can be cast upon the bank. 6. I have considered the afore submissions very carefully and in particular, the submissions of Sri.Biju Martin, the learned counsel for the petitioner, that notwithstanding Clause 5(2) of the Scheme, his client is entitled to arrears of pension. 7. It is pertinent that the petitioner has chosen not to challenge Clause 5(2) of the Scheme but contends that, notwithstanding it, he is entitled to pension from the date on which he is superannuated. His only contention is that Clause 5(2) of the Scheme is not applicable to an employee who retired WP(C).No.12787 OF 2017(W) 5 from the services of the bank after 2005, since there is no question of employee's contribution until he superannuates. I am afraid that this contention cannot hold water because as, is ineluctable from Clause 29 of the Scheme, the employers contribution, with interest accrued thereon, standing to the credit of the employees in the Employees Provident Fund and in the Employees Pension Trust Scheme has to be first transferred and credited by the said Authorities to the Bank, which, in turn, will have to be remitted by the Bank into the Pension Corpus. Obviously therefore, if there is any delay in this process, then the provisions of clause 5(2) would apply and the employees would be entitled to the pension only from the succeeding month of the month on which the remittance is made by the Bank. Had the petitioner challenged clause 5(2) of the Scheme, then there would be some justification in the submissions of Sri.Biju Martin that an employee cannot be found fault with for the delay caused either by the Employees Provident Fund Organisation (EPFO) or by the Bank in making remittance to the Pension Corpus. However, as long as Clause 5(2) makes it very clear that in the case of an employee, enumerated in clause 5(1) of the Scheme, they will not be entitled to pension except from the month after which the remittance is made by the Bank or to any arrears WP(C).No.12787 OF 2017(W) 6 before it, I cannot find favour with the submissions of the petitioner that notwithstanding these provisions, the employees are entitled to arrears as well as pension even though there may be delay caused in payment to the Pension Board. 8. That said, coming to the citations relied upon by Sri.Biju Martin, as is clear from **Thulasi Devi** (supra), a learned Judge of this Court did not declare that notwithstanding the delay, an employee is entitled to arrears of pension de hors Clause 5(2) of the Scheme but only said that such delay can be prevented if the Pension Board invoke their power to impose interest at the rate of 24% against them. 9. As regards **Sambasivan Nair** (supra) is concerned, again a Division Bench was only considering the imposition of penal interest on societies under the provisions of the Scheme, but without declaring that arrears of pension have to be paid on account of such delay. 10. In **Easwari** (supra), even after noticing that the employer committed default, a learned Judge of this Court did not order that arrears of pension be paid but only declared that the Board was within its powers to demand penal interest from the employer society. WP(C).No.12787 OF 2017(W) 7 11. Similarly, in **John P.C.** (supra) which is a judgment authored by me, I was only considering the question whether the retired employees, who fall under Clause 5(1)(ii), would be hit by the rigor of Clause 5(2) and my view was on to contrary, for the reasons that are recorded therein. The petitioner cannot obtain any support from this judgment because, admittedly, he does not fall within Clause 5(1)(ii) of the Scheme. 12. Pertinently, in none of the above judgments, the assertion of the petitioner - that he is entitled to arrears notwithstanding Clause 5(2) - was considered or supported. These citations, therefore, cannot help the petitioner with respect to the contentions raised in this writ petition. 13. That said, however, I am also cognizant of the submission of the bank that there is actually no delay from their side. I find some force in this because it is virtually admitted that the bank received the money from EPFO only on 22.07.2011 and they took merely about two and half months to remit this money into the Pension Corpus. This is not a very substantial delay but I do not propose to say anything further on this because I leave it to the petitioner to invoke appropriate statutory remedies, if he is so inclined, to proceed against the WP(C).No.12787 OF 2017(W) 8 bank for compensation for this delay, in terms of law. In the afore circumstances, I cannot find the contentions of the petitioner, hinged on clause 5 of the Scheme, to be deserving of any merit; particularly because he has chosen not to challenge the said Clause and I, therefore, deem it appropriate to dismiss this writ petition, but without making any order as to costs. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** Stu WP(C).No.12787 OF 2017(W) 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS NO.PB PPO NO. 78/DCB/KTM DTD 03.03.2012.** - **EXHIBIT P2 TRUE COPY OF THE PAYMENT ADVICE ORDER NO. 10191 DATED 03.03.2012.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WP(C) NO 15905/12 DATED 21.08.2014.** - **EXHIBIT P4 TRUE COPY OF THE LETTER NO. PB/LO/5024/2014 DATED 25.11.2014.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P(C) 12349/15 DATED 20.01.2015.** - **EXHIBIT P6 TRUE COPY OF THE ORDER NO. PB.PPO.78KTM/DCB DATED 22.06.2016.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN C.C.C. NO. 711/2016 DATED 15.07.2016.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 21220/2008 DATED 30.09.2008** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WP(C) 28564/2016 DATED 20.02.2017.** ## **RESPONDENTS' ANNEXURES :** **ANNEXURE A TRUE COPY OF THE COMMUNICATION NO.KR/KTM/1911/AB 3(1)/TRANSFER/2011 DATED 22.07.2011 ISSUED BY EMPLOYEE'S PROVIDENT FUND ORGANISATION.** **//TRUE COPY//** **P.A TO JUDGE.**