Koovappally Service Co-Operative Bank Ltd. v. K.J. Varkey and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 4TH DAY OF JANUARY 2013/14TH POUSHA 1934 RP.No. 139 of 2007 (K) IN WPC/18162/2003 ----------------------------------------AGAINST THE JUDGMENT IN WPC.18162/2003 DATED 09-10-2006 REVIEW PETITIONER(S)/RESPONDENT: -------------------------------- THE KOOVAPPALLY SERVICE CO.OP.BANK BANK LTD.NO.3949, KOOVAPPALLY REP. BY ITS SECRETARY, OFFICE OF THE KOOVAPPALLY SERVICE CO-OP.BANK, KOOVAPPALLY P.O., KANJIRAPALLY. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S)/1 TO 4 PETITIONER: -------------------------------- 1. K.J.VARKEY, KOLLIKOLAYIL, KOOVAPPALLY, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF CO-OPERATION SECRETARIAT, THIRUVANANTHAPURAM. 3. THE JOINT REGISTRAR OF CO-OP. SOCIETIES, CIVIL STATION, COLLECTORATE KOTTAYAM. 4. THE KERALA CO-OP. SOCIETIES EMPLOYEES PENSION BOARD, REP. BY ITS SECRETARY, OFFICE OF THE KERALA CO-OP. SOCIETIES EMPLOYEES PENSION BOARD, NEAR CHINMAYA SCHOOL AYURVEDA COLLEGE JN., THIRUVANANTHAPURAM. BY ADV. SRI.V.G.ARUN BY ADV. GOVERNMENT PLEADER SRI. P.V.ELIAS BY ADV. SRI.LIGI J.VADEKEDOM THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 04-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RP.No. 139 of 2007 (K) IN WPC/18162/2003 ## APPENDIX PETITIONER'S ANNEXURES: P1 COPIES OF THE RELEVANT PAGES OF AUDIT OBJECTION ISSUED BY DY.REGISTRAR DATED 18.11.1998. P2 COPIES OF THE BALANCE SHEET FOR THE FINANCIAL YEAR 20032004 RESPONDENTS' ANNEXURES: A1 COPY OF THE NOTICE OF THE GENERAL BODY MEETING HELD BY THE BANK ON 25.07.2004. R1(A) COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENTSECRETARY OF THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD DATED 04.11.2003. // TRUE COPY // P.A. TO JUDGE DSV/- ## **K. VINOD CHANDRAN, J.** ## **----------------------------------------** ## **R.P.NO. 139 OF 2007 IN W.P.(C).NO. 18162 OF 2003** ## **---------------------------------------Dated this the 4[th] day of January, 2013** ## **O R D E R** The writ petition is filed by a retired employee of the third respondent bank who superannuated on 30/11/1999. Admittedly on superannuation though pension was sanctioned by the pensionary board other pensionary benefits to be paid in lump, on retirement, was denied to the petitioner. The bank immediately after superannuation communicated to the petitioner that an audit objection was raised and some amounts are due to the bank on such audit objection. An arbitration case is pending as ARC No.1776/2000. The petitioner was unsuccessfully before the Joint Registrar and the Government as is evident by Exhibit P1 and P2 orders. It is against the denial of the benefits on superannuation that the petitioner was before this court. This court noticed the contention of petitioner that the authorities cannot withhold the pensionary benefits R.P.NO. 139 OF 2007 IN 2 W.P.(C).NO. 18162 OF 2003 of the petitioners on the ground that Section 65 enquiry is pending against the petitioner. But in view of the statement of the learned counsel for the bank, to the effect that the bank was ready to pay the pensionary benefits due to the petitioner, the writ petition was allowed. It was on the undertaking of the bank, recorded by the learned Single Judge that the writ petition was allowed; directing that the amounts due to the petitioner would be paid within two months from the date of receipt of the judgment with an order that, if the bank fails to do so in the period stipulated, the amount shall carry an interest at the rate of 6% per annum. 2. A review was filed within the time of two months stipulated, contending that the bank had not instructed the counsel to make an undertaking. It is the contention of the learned counsel now appearing for the bank that even now the bank is prepared to pay the amount R.P.NO. 139 OF 2007 IN 3 W.P.(C).NO. 18162 OF 2003 provided it is allowed to retain the amount which is objected to on audit and the adjudication of which is pending in arbitration. 3. The review petitioner/bank seeks review only on the ground that the counsel was not instructed to make any undertaking. Evidently the counsel appearing for the petitioner bank had made an undertaking that the amounts will be paid. The learned counsel for the petitioner in the writ petition would submit before me that in fact the matter was argued for a considerable length of time on the issue of the contention raised with respect to the power to withhold pensionary benefits on the ground of proceedings under Section 65 and the learned counsel then appearing for the bank undertook to pay the amounts and sought for time only to avoid the payment of interest. This is submitted to have been done after getting an adjournment and after getting instructions from the Bank. That was why the court R.P.NO. 139 OF 2007 IN 4 W.P.(C).NO. 18162 OF 2003 directed payment of entire amounts within two months and multed interest liability only on the failure of the bank to do so, is the contention. 4. The contours of the power to review has been succinctly laid down by the Hon'ble Supreme Court in **State of West Bengal v. Kamal Sengupta (2008)8 scc.612** . Culling out the principles underlying O.47R.1 it was held i. The expression “any other sufficient reason” appearing in O.47R.1 has to be interpreted in the light of other specified grounds. ii. An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22 (3)(f). iii. An erroneous order/decision cannot be corrected in the guise of exercise of power of review. iv. A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court. v. While considering an application for review, the tribunal must confine its adjudication with R.P.NO. 139 OF 2007 IN W.P.(C).NO. 18162 OF 2003 5 reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated an error apparent. vi. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. 5. It cannot be gainsaid that the review sought for by the bank comes within any of the situations laid down by the Hon'ble Supreme Court. It is also pertinent that the bank having engaged the counsel to appear for the bank cannot then resile from an undertaking given by the counsel on behalf of the bank. It is pertinent that the Honourable Supreme Court has also held that a review petition, is not, and should not be, an attempt to rehear the matter on merits in **1997(9) SCC 736, T.N. Electricity Board v.** R.P.NO. 139 OF 2007 IN 6 W.P.(C).NO. 18162 OF 2003 ## **N.Raju Reddiar** . 6. Further, it is to be noticed that though the RP was filed in the year 2006 and despite having obtained no orders of stay the respondent bank has not chosen to pay the pensionary benefits in lumpsum due to the petitioner on superannuation either fully or after retaining the amounts which is the subject of arbitration. In such circumstances, this court is of the opinion that by reason of the passage of time bank cannot be allowed to retain any amounts to await the settlement of an arbitration proceeding initiated thirteen years back. 7. The review petition hence is dismissed. The petitioner shall be entitled to be paid the entire amounts due on retirement which has been denied to him with 6% interest from the date of retirement as directed in the judgment dated 09.10.2006. If the amounts are not paid within a period of three months from the date of receipt of a R.P.NO. 139 OF 2007 IN 7 W.P.(C).NO. 18162 OF 2003 copy of this judgment then the respondent bank shall be liable to pay interest not at the rate of 6% but at the rate of 10% from the date of retirement that is 30/11/1999 and the difference in the rate of interest being 4% shall be recovered from the officer who is responsible for such default. The review petition is dismissed, however with the above condition imposed on the review petitioner. **K. VINOD CHANDRAN JUDGE** DSV/-