K. P. Ajayakumar v. State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939 WP(C).No. 4151 of 2016 (T) ---------------------------** **PETITIONER(S): ------------K.P. AJAYAKUMAR, RETIRED SECRETARY, MUHAMMA RURAL CO-OPERATIVE HOUSING SOCIETY LTD.NO.A.131, MUHAMMA P.O., ALAPPUZHA, PIN - 688 525, RESIDING AT 'WHITE HOUSE', MUHAMMA P.O., ALAPPUZHA, PIN - 688 525.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.ANNAPOORNA** **RESPONDENT(S): -------------1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD, REPRESENTED BY ITS SECRETARY, KALA NIVAS, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM, PIN - 695 001. 3. MUHAMMA RURAL CO-OPERATIVE HOUSING SOCIETY LTD.NO.A.131, REPRESENTED BY ITS SECRETARY, MUHAMMA P.O., ALAPPUZHA, PIN - 688 525.** **WP(C).No. 4151 of 2016 (T)** **--------------------------** ## **4. JOINT REGISTRAR OF** - **CO-OPERATIVE SOCIETIES (GENERAL), ALAPPUZHA, PIN - 688 001.** **5. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CHERTHALA, PIN - 688 524.** **R1,R4&R5 BY GOVERNMENT PLEADER SRI.M.R. DHANIL R2 BY ADVS. SRI.K.R.SUNIL,SC SRI.M.SASINDRAN, SC R3 BY ADV. SRI.P.R.SHAJI,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 4151 of 2016 (T) ---------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.P-1:**|**TRUE COPY OF THE STATEMENT SHOWING THE**| ||**PROFORMA FOR CALCULATION OF PENSION FUND.**| |**EXT.P-2:**|**TRUE COPY OF THE STATEMENT SHOWING THE**| ||**PROFORMA FOR CALCULATION OF PENSION FUND.**| |**EXT.P-3:**|**TRUE COPY OF THE PENSION DOCKET**| |**EXT.P-4:**|**TRUE COPY OF THE ORDER NO.PB.PPO.633/ALP**| ||**DATED 26.6.2013**| |**EXT.P-5:**|**TRUE COPY OF THE LETTER NO.FA131/2015**| ||**DATED 10.5.2015 OF THE 5TH RESPONDENT**| |**EXT.P-5(A):**|**ENGLISH TRANSLATION OF EXT.P5.**| |**EXT.P-6:**|**TRUE COPY OF THE LETTER NO.HM.5228/14**| ||**DATED 8.6.2015 OF THE 4TH RESPONDENT**| |**EXT.P-6(A):**|**ENGLISH TRANSLATION OF EXT.P6**| |**EXT.P-7:**|**TRUE COPY OF THE G.O(RT) NO.484/12/COP**| ||**DATED 7.9.2012**| |**EXT.P-7(A):**|**ENGLISH TRANSLATION OF EXT.P7**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**|| |**EXT.R-3(1):**|**TRUE COPY OF THE STATEMENT OF THE**| ||**VERIFICATION OFFICER OF KSCEPV AS ON**| ||**02/2005**| |**EXT.R-3(2):**|**TRUE COPY OF THE DEMAND NOTICE DATED**| ||**5.5.2010**| |**EXT.R-3(3):**|**TRUE COPY OF THE STATEMENT DATED 4.3.2013**| ||**TRUE COPY**| ||**P.S. TO JUDGE**| **EL** ## Devan Ramachandran, J. ----------------------------------------------- ## W.P.(C)No.4151 of 2016 T ----------------------------------------------- Dated this the 22[nd] day of June, 2017 ## **JUDGMENT** The petitioner says that he retired from service as Secretary of the Muhamma Rural Co-operative Housing Society-the third respondent herein on 28.02.2010. He asserts that he joined the service on 15.01.1980 and that he is entitled to an amount of Rs.9,111/- towards monthly pension under the Kerala Co-operative Employees Self Financing Pension Scheme, 1994 ('the Scheme' for short). According to the petitioner, the second respondent - Kerala State Co-operative Employees' Pension Board ('the Pension Board' for short) prepared the proforma calculating the amounts to be remitted by the third respondent Society into the pension fund in respect of the petitioner for the period from November 1982 to February 2005, a copy of which has been produced as WPC 4151/16 2 Exhibit P1 in this writ petition. As per the figures in Exhibit P1, an amount of Rs.2,21,050/- was the pension contribution in respect of the petitioner for the said period. The petitioner says that some delay was caused by the third respondent in remitting the contribution and that by then, in May 2010, the Pension Board raised another demand for Rs.6,78,061/- towards the pension contribution in respect of the petitioner for the period from November 1982 to February 2010. The third respondent was further directed to pay an amount of Rs.2,91,342/- after giving credit to an amount of Rs.3,86,719/- remitted by the them earlier. A statement indicating these figures issued by the Pension Board has been produced and appended to this writ petition as Exhibit P2. 2. The petitioner alleges that there were grave errors in Exhibit P2 statement of account, since it took in the amount of contribution with respect to the petitioner WPC 4151/16 3 for the months from November 1982 to April 2003, even though it was already covered by Exhibit P1. This led to disputes being raised by the third respondent with the Pension Board, the Society maintaining that it was not liable to pay the amount demanded under Exhibit P2. As matters stood so, the petitioner says, the Society had prepared the pension docket of the petitioner and forwarded the same to the Pension Board through the competent departmental officer, namely, the fifth respondent - the Assistant Registrar of Co-operative Societies, Cherthala. A copy of the said pension docket has been produced and appended to this writ petition as Exhibit P3. The petitioner, pointing to Exhibit P3, asserts that he is entitled to get Rs.9,111/- towards monthly pension as per the terms of the Scheme which came into force on 01.01.2010 and that this amount has been subsequently enhanced by Government orders. The petitioner alleges that because of the mistake committed WPC 4151/16 4 by the Pension Board in Exhibit P2, he has been sanctioned only Rs.4,618/- as monthly pension, a copy of the said order having been produced and appended to this writ petition as Exhibit P4. The petitioner submits that he made various representations before the competent authorities, including one by his wife before the Hon'ble Chief Minister of Kerala during the Chief Minister's Mass Contact Programme, but that no orders were issued rectifying the mistakes in Exhibit P2. He says, however, that his wife's complaint before the Hon'ble Chief Minister was registered in his Office and pursuant to the orders issued by the said office, the fifth respondent addressed a letter to the Pension Board stating that suitable recommendations have been made to the Government, through the Joint Registrar of Cooperative Societies, Alappuzha, to revoke the order of the Pension Board asking the Society to remit an amount of Rs.2,91,342/- and to allow one time settlement to the WPC 4151/16 5 Society by paying off the pension contribution in respect of the petitioner. This letter has been produced as Exhibit P5. 3. It appears that subsequently the Joint Registrar of Co-operative Societies, Alappuzha issued letters to the Pension Board asking them to allow the Society to pay off the amount under a one time settlement and to rectify the mistakes in Exhibit P2. A copy of this letter has been produced as Exhibit P6. In Exhibit P6, the fourth respondent has referred to G.O.(Rt)No.484/12/Co-op: dated 07.09.2012, under which the Government had ordered that Societies like the third respondent should be allowed to pay off the pension contribution under a one time settlement, a copy of the said letter has been produced as Exhibit P7. The petitioner says that subsequently the Society remitted an amount of Rs.14,488/- being the interest at the rate of 12% on the difference in the amounts in Exhibits P1 and P2. The petitioner alleges that in spite of these developments no WPC 4151/16 6 action has been taken by the Pension Board to disburse to him the full pension as shown in Exhibit P3 pension docket or the enhancements in pension granted through subsequent orders. 4. The petitioner has also a case against the Society that it has not granted the surrender value of 199 days of earned leave standing to his credit and that he has not been returned the security amount of Rs.2,000/he had deposited while assuming charge as Secretary. He also alleges that his title deeds, which he had deposited as collateral security, have not been returned and that the benefits of the pay revision, brought into effect on 01.04.2009, have not been granted to him, though the fifth respondent had granted permission for revision of his pay with effect from 01.04.2009, as per Order No. F/A131/2015 dated 09.03.2015. 5. The petitioner has, therefore, filed this writ petition praying that the Pension Board be directed to WPC 4151/16 7 pay his full pension along with arrears from the date of superannuation and to further direct the Society to pay to him the pay revision arrears from 01.04.2009, the surrender value of the earned leave, the security amount collected from him and to return to him the title deeds of his property deposited by way of security while assuming the office as the Secretary of the Society. 6. I have heard Smt.Annapoorna.L., learned counsel for the petitioner, Sri.M.Sasindran, learned Standing Counsel for the second respondent, Sri.P.R.Shaji, learned counsel for the third respondent and the learned Government Pleader for the official respondents. 7. Broadly, two claims are raised by the petitioner in this writ petition. One against the Pension Board for the full pension and arrears of the same from the date of his retirement and the second against the Society for grant of the pay revision arrears from 01.04.2009, WPC 4151/16 8 surrender value of the earned leave, security deposit collected from him and for return of the title deeds of his property. 8. As regards the claim against the pension Board is concerned, the petitioner has been placed in a very piquant situation. He retired from service on 28.02.2010. He should have normally been granted pension soon after his superannuation. However, he has been granted only Rs.4,618/- instead of Rs.9,111/-, that was eligible to him and which is discernible from the pension docket. The only reason why the petitioner has been denied full pension is because of the disputes between the Pension Board and the Society, to which the petitioner is not a party and has no role to play in it. Nothing can be attributed to the petitioner for the disputes between the Pension Board and the Society and as is evident from the facts that I have recorded above, the Society claims that the Pension Board has demanded amounts far in excess WPC 4151/16 9 of the pension contribution in respect of the petitioner, whereas the Pension Board maintains that the Society is liable to make payment as per Exhibit P2 statement of account. This is not a dispute which the petitioner could have resolved and as is evident from Exhibits P5 and P6 orders of the Assistant Registrar and Joint Registrar of Co-operative Societies, the Pension Board and the Society were directed to settle the issue in certain terms and in conformity with the one time settlement scheme available. The fact that the Society has not remitted the amounts as demanded by the Pension Board or that the Pension Board has not permitted the Society to settle the account cannot be a reason why the petitioner should be put to prejudice and detriment. This is more so because even as per the Scheme, the delay in payment of the contribution would visit the Society with consequences of having to pay the interest at the rate of 25% from the date on which such contribution was due till payment. WPC 4151/16 10 These provisions are in built into the scheme to avoid the kind of situation as is seen in this case, namely in order to make sure that delay in payment of contribution does not cause prejudice to retired employees. 9. In such view of the matter, the fact that there are disputes still subsisting between the Society and the Pension Board would be no reason to deny pension to the petitioner. A similar view has been taken by this Court in **Thulasi Devi v. Kerala State Co-operative Employees Pension Board** (2008 (4) KLT 647) and also by me in the judgment delivered on 11.04.2017 in W.P.(C)No. 20537/2012 and connected cases. Further, it is also pertinent that even the statutory authorities, through Exhibits P5 and P6 orders, have recognised the right of the petitioner to full pension and they have issued necessary orders, both to the Society and the Pension Board, for making sure that the petitioner is not put to any prejudice on account of the disputes between them. WPC 4151/16 11 10. In the statement filed on behalf of the third respondent Society, they have asserted that they had paid the entire amounts due to the Pension Board as per Exhibit P1, which has also been produced by them and marked as Exhibit R3(3). The Society, therefore, takes the stand that no amount is due from them to the Pension Board. Per contra, in the counter affidavit filed on behalf of the Pension Board, they maintain that amounts are still due and that the Society has not paid the whole amount. 11. Be that as it may, as I have already indicated above, the Scheme vests the Pension Board with necessary competence to even recover the amounts from the society with applicable penal interest. In fact, in the counter affidavit, the Pension Board, in paragraph 8, admits this and the averments are as under: Clause 38 of the self financing pension scheme deals with revenue recovery, which reads as, “If any amount due from a society to the pension fund under this scheme, is in arrears, the secretary or any other officer authorised by him in this behalf shall, after due enquiry, ascertain the amount of arrears and if WPC 4151/16 12 the Bank fails to clear the arrears within the time as may be specified in the notice issued thereon, issue a certificate for that amount with interest at the rate of 24% p.a. till date or Rs.500/- whichever is higher, from the date of such notice to the Collector of District in which the demand arise and the Collector on receipt of such certificate shall proceed to recover the amount with interest in the same manner as Arrears of Public Revenue due on land”. But through the judgment dated 19.07.2012 in W.A.No.1332/2012 filed by Sri.T.R.Sambasivan Nair the Hon'ble Division Bench pointed out that the Pension Board should not resort to revenue recovery proceedings for recovery of contribution because through other coercive methods the Registrar of Co-operative Societies can ensure payment in time along with release of salary by the employer to the employees.” 12. Merely because the Society has not allegedly made payment, the Pension Board would not be justified in denying the petitioner pension that is legitimately and legally due to him and the Society would be authorised and entitled to take such action against the Society as is permitted in law. 13. As regards the claim of the petitioner against the Society for pay revision arrears, surrender value of earned leave, return of the security amount and the title deeds of his property deposited by him as security while WPC 4151/16 13 he joined the Society as the Secretary, these are not controverted by the Society even in their submissions. I can, therefore, take it that the society admits these claims and in such circumstances, they are obligated to pay such legitimate amounts under these heads. In such circumstances and for the reasons that I have recorded above, I am impelled to order this writ petition and direct the second respondent to pay to the petitioner his full eligible pension in future as also the arrears of pension, after deducting the amounts already paid to him from the date of superannuation, namely 28.02.2010. The arrears of pension as on this date shall be paid by the second respondent to the petitioner as expeditiously as possible, but not later than six months from the date of receipt of a copy of this judgment and if there is any default in payment of the amount within the time granted herein, all such amounts shall carry interest at the rate of 10% from 28.02.2010 until it is actually paid. WPC 4151/16 14 Further, the third respondent Society is hereby directed to pay to the petitioner all eligible amounts due to him by way of revision arrears from 01.04.2009, the surrender value of earned leave standing to his credit as on the date of superannuation and also to return the security amount collected from him and the title deeds, if any, deposited by him at the time when he entered the service as the Secretary, within a period of two months from the date of receipt of a copy of this judgment. If such amounts are not disbursed by the Society within the time granted herein, they will also be liable to pay interest at the rate of 10% from the date of superannuation, namely 28.02.2010, till the date of actual payment. I hope that the Society and the Pension Board would take these directions with all seriousness and to pay the amounts due to the petitioner without any delay and at at least within the time granted herein because I WPC 4151/16 15 am told by the learned counsel for the petitioner that the petitioner is now completely indisposed and laid up requiring continuous support and care and large amounts of money towards medical expenses. Sd/Devan Ramachandran, Judge tkv