K.K. Raghavan v. Kerala State Co-operative Employees' Pension Board and Ponnani Service Co-operative Bank Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **MONDAY, THE 11TH DAY OF JULY 2016/20TH ASHADHA, 1938** ## **WP(C).No. 27522 of 2008 (B)** **----------------------------** **PETITIONER : ---------------------** **K.K. RAGHAVAN (RETIRED SECRETARY, THE PONNANI SERVICE CO-OPERATIVE BANK LTD NO.4841, PONNANI) KONTHAMKULANGARA HOUSE, ATHALUR P.O., VIA. THAVANOOR.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND** **RESPONDENT(S) : -----------------------------** **1. THE KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD, P.B.NO.85, KALA NIVAS, T.C. NO.27/156,157 CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM, PIN 695001, REPRESENTED BY ITS ADDITIONAL REGISTRAR/SECRETARY. 2. THE PONNANI SERVICE CO-OPERATIVE BANK LTD NO. 4841, PONNANI P.O., MALAPPURAM DISTRICT, PIN 679 577, REPRESENTED BY ITS SECRETARY. R1 BY ADV. SRI.P.V.MOHANAN, SC R2 BY ADV. SRI.V.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 27522 of 2008 (B)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : TRUE COPY OF THE ORDER NO. PB.PPO.170/MPM DATED 25.7.2005 OF THE SECRETARY OF THE CO-OPERATIVE EMPLOYEES PENSION BOARD. EXT.P2 TRUE COPY OF THE LETTER DATED 24.8.2005 OF THE BOARD OF DIRECTORS OF THE BOARD WITHOUT ITS ENCLOSURES. EXT.P3 TRUE COPY OF THE ORDER NO.PB. PPO.170/MPM DATED 21.12.2007 OF THE BOARD.** **EXT.P4 TRUE COPY OF THE REPRESENTATION DATED 15.2.2008 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE BOARD.** **EXT.P5 TRUE COPY OF THE LETTER NO. PB/PRO/1102/08 DATED 10.3.2008 OF THE ADDITIONAL REGISTRAR/SECRETARY OF THE BOARD. EXT.P6 TRUE COPY OF THE REPRESENTATION DATED 4.4.2008 SUBMITTED BY THE PETITIONER TO THE SECRETARY OF THE BOARD. EXT.P7 TRUE COPY OF THE LETTER NO. PB/PR0/2421/08 DATED 30.4.2008 OF THE ADDITIONAL REGISTRAR/SECRETARY OF THE PENSION BOARD.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.27522 of 2008 ----------------------------------------------Dated this the 11[th] day of July, 2016** ## **JUDGMENT** Petitioner entered service as Secretary of the 2[nd] respondent Bank on 02.04.1976 and retired from service from the same post on 31.12.2003. Petitioner is aggrieved by nonreckoning of his service from 02.04.1976 to 01.08.1976 as qualifying service for sanctioning pension under the Kerala Cooperative Societies Employees Self Financing Pension Scheme, 1994 [hereinafter called 'the Pension Scheme'], and also imposition of ceiling on his average pay for the purpose of calculating pension. 2. The main contention of the petitioner is that, since contribution in respect of the petitioner for the period from 02.04.1976 to 01.08.1976 was made by the Bank with 24% interest, he is entitled to get that period also reckoned as qualifying service for pension. That apart, it is contended that, at the time of retirement of the petitioner, there was no ceiling of Rs.20,000/- on average pay for the purpose of calculating pension according to the rules then in force. However, the 2 **W.P.(C) No.27522 of 2008** request made by the petitioner was declined as per Exts.P5 and P7 by the 1[st] respondent. It is thus aggrieved by the said orders passed by the 1[st] respondent, petitioner has filed this writ petition. 3. First respondent has filed a counter affidavit refuting the allegations and claims and demands made by the petitioner in the writ petition. That apart, it is contended that, the petitioner is entitled to get pension, only from the date of enrollment of the petitioner in the Pension Scheme. Therefore, the claim raised by the petitioner with respect to the period from 02.04.1976 to 01.08.1976 cannot be taken into consideration. Going by the provisions of the Pension Scheme and of the Employees' Provident Fund Scheme, a person is entitled to get benefit of the scheme only from the date of enrollment in either of the scheme. Therefore, according to the respondent, petitioner is not entitled to get pension for the said period. The said stand taken by the 1[st] respondent cannot be found to be incorrect or mistaken. Therefore, with respect to the said aspect raised by the petitioner in the writ petition, petitioner is not entitled to succeed. ## **W.P.(C) No.27522 of 2008** 3 4. So far as the amendment to Clause 22 of the Kerala State Co-operative Employees' Pension Scheme, 1994 is concerned, the same was brought into force on and with effect from 12.07.2006, as per G.O.(P) No.129/2006. According to the petitioner, he retired from service prior to the amendment brought into force. That apart, it is also contended that, there is no retrospective effect provided to the amendment. So, it is the contention of the petitioner that he is entitled to get the full pension without being prohibited by the cap brought subsequent to the retirement of the petitioner from the 2[nd] respondent Bank. 5. This question was considered by a learned Single Judge of this Court in the judgment in _**'Joseph v. Kerala State Co-operative Employees Pension Board**_ ' [2015 (4) KLT SN 142 (C.No.174)], and it was held as follows in paragraphs 37 to 39: _“37. In response to the above contentions, a learned Division Bench of this Court has held that the upper limit of Rs.20,000/- on average pay as well as the upper limit of Rs.10,000/- on monthly pension applies to all Co-operative employees irrespective of their length of qualifying service. In fact, their Lordships have explicitly observed that the said_ 4 **W.P.(C) No.27522 of 2008** _proposition is clear from the amended Clause 22 of the Scheme._ _38. The learned Standing Counsel has, however, latched on to the observation of the Court in the first paragraph of the judgment that the petitioners in the writ petition retired from service between 2004 and 2009. Some of them did retire before Exhibit P3 amendment._ _39. On a perusal of the entire judgment, I do not find any reference to the issue of retrospective application of Ext.P3. In other words, the impact of Exhibit P3 amendment has not at all fallen for consideration. On the contrary, the learned Division Bench has taken into account the 2008 amendment. In this context, it is trite to observe that once an issue, though present by implication, has not been expressly dealt with and pronounced upon, the judgment on the said issue remains sub silentio. Any issue thus rendered sub silentio cannot be treated as a precedent. Facts of a case do not form part of the ratio. Put differently, the judgment so rendered passes sub silentio.”_ 6. On the other hand, learned Standing Counsel for the 1[st] respondent has invited my attention to the judgment of the Division Bench of this Court in _**'Velayudhan v. State Cooperative Employees Pension Board'**_ [2011 (1) KLT 399] and the judgment of the learned Single Judge in _**'Kerala State Co-operative Employees Pension Board v. Nanu**_ ' [2012 **W.P.(C) No.27522 of 2008** 5 (4) KLT 163], to canvass the proposition that the cap provided under Clause 22 is upheld. 7. Heard learned counsel for the petitioner and learned Standing Counsel for the 1[st] respondent. 8. The question to be considered is whether the petitioner who was retired from service on 31.12.2003 is affected by the cap prescribed as per clause 22, limiting the maximum salary to 20,000/- of the average pay and Rs.10,000/- as the maximum pension payable. As I have stated earlier, the said question was considered in the decision in _**'Joseph v. Kerala State Co-operative Employees Pension Board'**_ ( _supra_ ). So far as the judgment of the Division Bench in _**'Kerala State Co-operative Employees Pension Board'**_ cited _supra_ , the question considered was whether a person who has rendered 30 years of service is liable to be affected by the cap provided under Clause 22 of the Pension Scheme. Therein, this Court has held that a person who is rendered 30 years of service is also entitled to get pension, only as per the cap provided under Clause 22. On the other hand, the judgment in _**'Joseph'**_ ( _supra_ ), rendered by a learned Single Judge of this Court was directly on the **W.P.(C) No.27522 of 2008** 6 question whether a person retired prior to the introduction of the Scheme is liable to suffer the amendment brought subsequently. Taking into account the judgment rendered by this Court in _**'Joseph'** (supra)_ , I am of the considered opinion that Exts.P5 and P7 orders passed by the 1[st] respondent cannot be sustained under law. Therefore, I think it is only appropriate that a direction is issued to the 1[st] respondent to re-consider the whole issue taking into account the law laid down by this Court with respect to retrospective effect and in accordance with law. 9. Therefore, I set aside Exts.P5 and P7. Taking note of the judgment in _**'Joseph'**_ ( _supra_ ) as well as the judgment of the Division Bench in _**'Kerala State Co-operative Employees Pension Board'**_ and the judgment of the learned Single Judge in _**'Velayudhan v. State Co-operative Employees Pension Board'** (supra),_ the 1[st] respondent shall take a decision within a period of two months from the date of receipt of a copy of this judgment. Needless to say, if the petitioner is entitled to get the benefit of the judgment in _**'Joseph'**_ ( _supra)_ , after considering the principles laid down in the above three judgments, the pension or any arrears due 7 ## **W.P.(C) No.27522 of 2008** shall be paid to the petitioner without much delay and at any rate within a further period of one month thereafter. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/11.07.2016