NIKHILA HEMANTH.V.S. v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944** ## **WP(C) NO. 30959 OF 2019** ## **PETITIONER:** **NIKHILA HEMANTH.V.S., AGED 32 YEARS W/O. LAE HEMANTH, D/O. CHELLAPPAN, PADATHARA, NEAR DEVAMATHA, KORATTI P.O., THRISSUR-680 308** **BY ADVS. G.SREEKUMAR (CHELUR) SHRI.RAPHAEL THEKKAN SHRI.RIYAS C.S.** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF COOPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE METHALA SERVICE CO OPERATIVE BANK LIMITED NO. R-298 REPRESENTED BY ITS SECRETARY, HEAD OFFICE, T.K.S PURAM, KODUNGALLUR P.O., THRISSUR DISTRICT-680 664** - **3 THE JOINT REGISTRAR OF CO OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES, IRINJALAKUDA, THRISSUR DISTRICT-680 121** - **4 THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR OF CO OEPRATIVE SOCIETIES, KODUNGALLUR-680 664** - **5 KERALA STATE CO-OEPRATIVE EMPLOYEES PENSION BOARD, REPRESENTED BY ITS AUTHORISED OFFICER, KALA NIVAS, T.C.NO.27/156, 157,NEARAYURVEDA COLLEGE, KUNNUPURAM,P.B.NO.85, THIRUVANANTHAPURAM-695 001** **BY ADVS. SRI.A.G.VISWAMBHARAN SRI.M.SASINDRAN, SC SRI.P.M.ABDUL JALEEL (KODUNGALLUR)** **WP(C) NO. 30959 OF 2019** **2** ## **OTHER PRESENT:** **SMT.RESMI THOMAS-GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 30959 OF 2019** **3** ## **J U D G M E N T** The travails of a widow, who has come knocking the doors of this Court, cannot be lost sight of, while this judgment is delivered. 2. The petitioner's husband was working as a Peon in the services of the second respondent - Co-operative Bank (for short 'the Society'). He unfortunately died, plunging the petitioner into extreme crisis. 3. Even though some of the retiral benefits eligible to her husband were disbursed to the petitioner, some portions thereof were adjusted against an alleged overdraft which he had availed at the time when he was in service. In addition, amounts received by the Society from the Life Insurance Corporation of India (LIC) under a Group Gratuity Scheme into the credit of the petitioner's husband, was also not fully released on the ground that, as per the applicable Rules and Regulations, he would not have been eligible to the same and consequently that it cannot be paid to her. 4. To make matters worse, when the petitioner applied for appointment in the services of the Society under the dying harness/compassionate scheme, it was not acceded to solely on the ground that she had not obtained and produced a No Objection Certificate from the other legal heirs of her husband, namely his aged **WP(C) NO. 30959 OF 2019** **4** mother and father. 5. As the final blow, the pension eligible to the petitioner, to be paid by the fifth respondent - Pension Board, has also been denied to her for the reason that she did not produce a consent letter from her husband's legal heirs. 6. Without need to say so, the petitioner has been certainly pushed to a corner and she has been waiting for justice for the last more than three years, during when this writ petition has been pending. 7. I have heard Sri.Raphael Thekkan - learned counsel appearing for the petitioner; Sri.P.M.Abdul Jaleel - learned counsel for the Society; Sri.M.Sasindran, learned standing counsel for the Pension Board and Smt.Resmi Thomas, learned Government Pleader. 8. Sri.P.M.Abdul Jaleel - learned counsel for the Society submitted that none of the prayers made for by the petitioner in this writ petition are tenable because, going by the applicable Regulations, her deceased husband would be entitled only to DCRG as has been computed in Ext.P5, but not the entire amount paid by the LIC under the Group Gratuity Scheme. As regards compassionate appointment is concerned, Sri.P.M.Abdul Jaleel submitted that the petitioner did not even make an application for the said purpose within one year after the death of her husband, which is mandatory; **WP(C) NO. 30959 OF 2019** **5** and further that, in the absence of consent letter from his other legal heirs, such a benefit cannot be claimed by her. 9. Finally, as regards the other retiral benefits are concerned, Sri.P.M.Abdul Jaleel submitted that a total of Rs.87,808/- was computed to be eligible to the petitioner's deceased husband, but that an amount of Rs.55,485/- was overdue in his loan account, which has been adjusted. He thus prayed that this writ petition be dismissed. 10. Sri.M.Sasindran, learned standing counsel for the Pension Board, conceded that the Pension contribution in the account of the petitioner's deceased husband has already been remitted by the Society along with all necessary papers, except the consent letter from his other legal heirs. He submitted that as soon as such a letter is obtained, the eligible pension will be paid to the petitioner along with its arrears. 11. As I have said prefatorily, the abject agony of the petitioner cannot be lost sight of by this Court. 12. The petitioner lost her husband on 29.05.2017, when she was just about 32 years in age and has been thereupon left in the lurch by the respondents, without being paid any amounts to sustain herself. 13. Even though the Society admits to an amount of **WP(C) NO. 30959 OF 2019** **6** Rs.1,66,396/-, as being the DCRG eligible to her husband, it is baffling that even the said amount has not been paid to her until today. 14. On the question of DCRG, it is admitted that the Society received an amount of Rs.3,41,396/- from the LIC under the Group Gratuity Scheme, but they take the stand that except the afore admitted amount, nothing is deserving to be payable by them. I am afraid that this stand of the Society is egregiously improper because it runs contrary to the declarations of this Court in **Chandrasekhar Nair v. Kerala State Co-operative Agricultural and Rural Development Bank Limited [2017 (4) KLT 276].** 15. Coming to the adjustment of the alleged loan liability against the retiral benefits of the petitioner's husband is concerned, it is now well settled that unless he had given an undertaking under Section 37 of the Kerala Co-operative Societiesa Act (KCS Act), the same could not have been done. There is nothing on record to show that any such undertaking was given and the Society has also not produced any such document in substantiation. Pertinently, they have chosen not even whisper about any such undertaking in their counter affidavit, which has filed as early as on January, 2020. 16. On the aspect of compassionate appointment, as I have said above, the excuse of the Society is that the petitioner did not make an application within a period of one year. They, thereafter, say **WP(C) NO. 30959 OF 2019** **7** that the application made by her subsequently is defective because it was not supported by a letter of consent by her husband's other legal heirs, namely his father and mother. 17. I must certainly record that this Court is extremely unhappy with the attitude shown by the Society on every of the afore count **.** 18. This is because, they have refused to pay the admitted DCRG to the petitioner until today; while they have violated the declarations of this Court in **Chandrasekhar Nair** _(supra)_ in refusing to release the amounts received by them against the account of the petitioner's husband from the LIC. 19. As far as the compassionate appointment is concerned, it is baffling that they should have taken the stand that the petitioner did not make an application within one year, when their own document, namely Ext.R2(4), unequivocally admits that she had made such an application on 26.09.2017, which is lesser than two months after she unfortunately lost her husband. 20. The further reasons cited by the Society in this regard that the petitioner did not obtain the consent letter from her father-in-law and mother-in-law is also totally untenable and superfluous because, admittedly, both of them were beyond the age of employability at the time when their son died and even if, therefore, the petitioner has **WP(C) NO. 30959 OF 2019** **8** been unable to obtain their consent, it should not have been used against her in a hypertechnical manner. 21. Finally, as I have said above, any adjustment from the retiral benefits of the petitioner's husband could have been made only if there had been an undertaking given by him under Section 37 of the KCS Act, which is conspicuously absent in this case. 22. Before I conclude, however, I must add a note on the unfair treatment of the petitioner by the Pension Board also, in their refusal to disburse to her the eligible pension solely on the ground that she did not obtain an NOC from her husband's parents, though the contribution for the same has already been received by them from the Society. 23. I fail to understand why the Pension Board has taken such a stand because, going by Clause 23 of the Co-operative Societies Employees Pension Scheme, 1994 (hereinafter referred to as the 'Pension Scheme' for short), the first right and priority to receive pension is certainly with the spouse, while the mother and father fall at least two or three classes below that. 24. Hence, when the petitioner, whose matrimony to her husband has been conceded, approached the Pension Board for pension, I fail to comprehend how they could have asked her to obtain the consent from her parents in law, who obtain no priority over her **WP(C) NO. 30959 OF 2019** **9** for the purpose of pension from her husband. 25. Unfortunately, the petitioner has been put to extreme prejudice for no reason that can be attributed to her. 26. For the afore reasons, I am certain that the petitioner is entitled to relief, which I must offer her without any further delay. Resultantly, this writ petition is ordered with the following directions: a) The 2nd respondent – Society will disburse to the petitioner the entire DCRG which they have received from the LIC in the account of the petitioner's husband, within a period of one month from the date of receipt of a copy of this judgment; failing which, the said sums will carry interest at the rate of 8% from per annum from the date on which they received it, until it is actually paid. b) The Society shall hear the petitioner forthwith on the question whether her husband had executed an undertaking under Section 37 of the KCS Act and if it is found to the contrary, then the entire retiral benefits computed shall be paid to her within a period of one month from today; failing which, the same shall also attract interest at the rate of 9% per annum from the date of death of her husband, until it is actually paid. c) If, on the contrary, the Bank is able to establish that an undertaking was obtained from the petitioner's husband under **WP(C) NO. 30959 OF 2019** **10** Section 37 of the KCS Act, then, subject to the remedy of the petitioner to challenge any such decision, the balance amounts after adjustment against alleged overdraft which he had availed, shall be released to the petitioner within a period of one month from the date of receipt of a copy of this judgment, failing which, the said amount will carry interest as ordered in (b) above. d) The competent Authority of the Society will immediately consider the petitioner's application for appointment under the compassionate Scheme without insisting on any NOC being obtained from her parents in law and issue appropriate orders and complete necessary action thereon within a period of two months from the date of receipt of a copy of this judgment. e) The Co-operative Pension Board will take action forthwith to release the pension, its arrears and the statutorily accrued interest to the petitioner from the date on which the contribution for such purpose were received by them from the Society, _de hors_ the requirement of obtaining any consent or NOC from her parents-in-law. This shall be done within a period of one month from the date of receipt of a copy of this judgment. This writ petition is thus ordered. **Sd/DEVAN RAMACHANDRAN JUDGE** rp **WP(C) NO. 30959 OF 2019** **11** ## **APPENDIX OF WP(C) 30959/2019** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE CORATTI GRAMA PANACHAYATH DATED 19.5.15 EXHIBIT P2 A TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY THE COCHIN MUNICIPAL CORPORATION DATED 27.6.17 EXHIBIT P3 A TRUE COPY OF THE DOCUMENT ISSUED TO THE PETITIONER FROM THE THRISSUR DISTRICT CO OEPRATIVE EMPLOYEES CO OPERATIVE SOCIETY LIMITED NO.R 325 DATED 31.7.18 EXHIBIT P4 A TRUE COPY OF THE DISCHARGE RECEIPT ISSUED DATED 11.9.17** |**EXHIBIT P5**|**A TRUE COPY OF THE COMMUNICATION RECEIVED BY THE**| |---|---| ||**PETITIONER DATED 30.7.18**| |**EXHIBIT P6**|**A TRUE COPY OF THE LAWYER NOTICE ISSUED ON BEHALF**| ||**OF THE PETITIONER DATED 21.1.19**| |**EXHIBIT P7**|**A TRUE COPY OF THE RECEIPT ISSUED BY THE POSTAL**| ||**DEPARTMENT DATED 22.1.19**| |**RESPONDENT'S EXHIBITS:**|| |**EXT.R2(1)**|**TRUE PHOTOCOPY OF THE LETTER RECEIVED FROM THE**| ||**PETITIONER TO THE RESPONDENT 2 REQUESTING DEATH**| ||**BENEFITS.**| |**EXT.R2(2)**|**TRUE PHOTOSTAT COPY OF THE LETTER NO.111/17-18**| ||**DATED 22.07.2017 SENT BY THE RESPONDENT TO THE**| ||**PETITIONER.**| |**EXT.R2(3)**|**TRUE PHOTOSTAT COPY OF THE LETTER NO.K/63/2019**| ||**DATED NIL BY THE RESPONDENT NO.4 TO R2.**| |**EXT.R2(4)**|**TRUE PHOTOSTAT COPY OF THE LETTER NO.151/17-18**| ||**DATED 06.10.2017 SENT BY R2 TO THE PETITIONER.**| |**EXT.R2(5)**|**TRUE PHOTOSTAT COPY OF THE LETTER DTED 18.07.2018**| ||**OF THE PETITIONER TO R2.**| **12** ## **WP(C) NO. 30959 OF 2019** **EXT.R2(6) TRUE PHOTSTAT COPY OF THE LETTER & ACKNOWLEDGEMENT DATED 18.07.2018 BY THE PETITIONER EXT.R2(7) TRUE PHOTOSTAT COPY OF THE FAMILY PENSION APPLICATION FORWARDED BY THE RESPONDENT 2 TO THE PENSION BOARD.**