## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
## **THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR**
**& THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN**
**THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933**
**WA.No. 1098 of 2011()**
**--------------------AGAINST THE JUDGEMENT IN WPC.16953/2011 Dated 23/06/2011**
**....................**
## **APPELLANTS/PETITIONERS**
**-------------------------**
**1. PURUSHOTHAMAN K., (RETIRED ASSISTANT SECRETARY, S.L.PURAM SERVICE CO-OPERATIVE BANK LTD.NO.A.64, S.L.PURAM P.O.), RESIDING AT PUTHUPPARAMBIL HOUSE, KOMALAPURAM, EAST OF GURUPURAM, AVALUKUNNU P.O., ALAPPUZHA-688 006.**
## **2. SUGUNAN K.,**
**(RETIRED HEAD CLERK, S.L.PURAM SERVICE CO-OPERATIVE BANK LTD.NO.A.64, S.L.PURAM P.O.), RESIDING AT PALATHINKAL, S.L.PURAM P.O., ALAPPUZHA-688 523.**
**BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY**
**SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND**
## **RESPONDENTS/ RESPONDENTS**
**--------------------------**
**1. THE KERALA STATE CO-OP. EMPLOYEES' PENSION BOARD, P.B.NO.85, KALA NIVAS, TC 27/156, 157, CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM, PIN-695 001, REP. BY ITS ADDITIONAL REGISTRAR/SECRETARY.**
**2. S.L.PURAM SERVICE CO-OPERATIVE BANK LTD. NO.A 64, S.L.PURAM P.O., PIN-688 523,**
**ALAPPUZHA DISTRICT, REPRESENTED BY ITS SECRETARY. ADV.P.V.MOHANAN FOR RESPONDENTS.**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2011, THE COURT ON 29/09/2011 DELIVERED THE FOLLOWING:**
**“CR”**
**C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------W.A.No.1098 OF 2011 ------------------------------Dated this the 29[th] day of September, 2011**
**J U D G M E N T ~~~~~~~~~~~**
## P.S.Gopinathan, J.
The appellants are the petitioners in W.P.(C) No.16953/2011. Having failed before the learned Single Judge, they have come up in appeal. The brief facts leading to the case are as follows:
Appellants 1 and 2 entered the service of the 2[nd] respondent, a duly constituted Co-operative Society as per the Kerala Co-operative Societies Act, 1969, on 6.5.1981 and 27.7.1981 respectively. On completing their probation, they were regularised, continued in the service and retired from service on superannuation while working as Assistant Secretary and Head Clerk on 30.11.2010 and 31.12.2010 respectively. At the time of their entry in service, there was no provision for pension. With effect from 3.6.1993, Contributory Pension was introduced as per the Kerala Co-operative Societies Employees' Self Financing Pension Scheme, 1994 (hereinafter referred to as
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the 'Pension Scheme'). Upon commencement of the Pension Scheme, they were enrolled on 1.5.1982 and 1.10.1983 respectively, the dates on which their probation was satisfactorily completed. From the above respective dates onwards the 2[nd] respondent had been remitting their contribution to the 1[st] respondent, the Kerala State Co-operative Employees Pension Board (hereinafter referred to as the 'Pension Board'). While so, the 2[nd] respondent wrote Ext.P3 letter to the Secretary of the Pension Board requesting the Pension Board to reckon the period during which the appellants and seven other employees were on probation as qualifying service for computation of pension. The request was accompanied by a copy of the resolution adopted by the Board of Directors of the 2[nd] respondent. The Pension Board in turn sent Ext.P4 letter dated 26.12.2007 asking the 2[nd] respondent to remit the pension contribution. Accordingly, by Ext.P6, the 2[nd] respondent remitted a sum of Rs.60,000/- on 31.7.2009. But, to the surprise of the appellants, on their retirement, when they got Exts.P1 and P2 pension orders, it was noticed that their period of probation was not counted for computing pension.
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Thereupon, they preferred Exts.P7 and P8 representation to the Secretary of the Pension Board requesting to reckon the period of their probation as qualifying service for the purpose of pension and also to refix the pension accordingly. Responding to Exts.P7 and P8, by Ext.P9 letter dated 18.5.2011 the request of the appellants was declined. Assailing Exts.P1, P2 and P9, with a contention that as per the Pension Scheme, the appellants are entitled to count their period of probation as qualifying service for the purpose of pension, the Writ Petition was filed seeking a writ to quash Exts.P1, P2 and P9 and also for a declaration that they are entitled to count their period of probation as qualifying service for pension and to issue a writ of mandamus commanding the 1[st] respondent Board to recompute the pension accordingly.
2. The 1[st] respondent took up a defence that, the appellants were not on probation as on the date of the commencement of Pension Scheme and that they had enrolled in the Scheme only from 1.5.1982 and 1.10.1983. Therefore, they are not entitled to count their period of probation as qualifying service for computing pension. The learned Single Judge, after
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upholding the defence, dismissed the Writ Petition. The contribution remitted as per Ext.P6 by the 2[nd] respondent was ordered to be refunded. Now this Writ Appeal.
3. We have heard Sri.S.P.Aravindakshan Pillay, the learned counsel appearing for the appellants as well as Sri.P.V.Mohanan, the learned counsel appearing for the 1[st] respondent and perused the records.
4. It is not disputed that the appellants enrolled in the Scheme only with effect from 1.5.1982 and 1.10.1983 respectively upon the commencement of the Pension Scheme on 3.6.1993. According to the learned counsel for the appellants, by virtue of the 3[rd] proviso to paragraph 19(1)(a) of the Pension Scheme the appellants are entitled to count their period of probation as qualifying service for pension. On the other hand, according to the learned counsel for the 1[st] respondent, the appellants are governed by paragraph 19(1)(a) and that the appellants would not come within the purview of the 3[rd] proviso and therefore, they are not entitled to count their period of
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probation as qualifying service for pension. For a correct appraisal, a reading of para 19(1)(a) with its provisos would be relevant.
“19. Qualifying Service:- Qualifying service for granting pension under the Scheme shall be-
(1)(a) in the case of an employee who was in the service of a society on the date of application of this Scheme to that society the length of service commencing from the date of joining the Contributory Provident Fund:
Provided that the qualifying service shall be limited to the period for which the employer's contribution towards the Provident Fund has been fully paid by the Society in respect of that employee.
Provided further that where the employee was a Subscriber to any pre-existing Provident Fund Scheme implemented in that Society and contribution made thereon has been transferred to the Pension Fund, such period will also qualify for pension.
Provided also that an employee who was on probation and on whose behalf the Contributory Provident Fund contribution has not been remitted at the time of implementation of the scheme, such period of
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probation shall also qualify for pension, if proportionate employers' contribution together with interest thereon has been credited to the Pension Fund. (emphasis supplied)
Provided also that in the case of an employee who was in the service of a society coming under the purview of functional Registrars as on the date of application of this Scheme to that society, the length of service shall commence from the date from which the society resolves to contribute the amount towards Pension Fund in respect of each of the employees, at the time of enrollment in the Pension Scheme.” (rest omitted)
A careful reading of para 19(1)(a) and the 3[rd] proviso quoted above would show that the benefit of the 3[rd] proviso would be applicable only to the employees who were on probation at the time of commencement of the Scheme and on whose behalf the contribution of the employer towards the Pension Scheme was remitted at the time of implementation of the Scheme or subsequently with interest. Admittedly, the probation of the appellants were declared with effect from 1.5.1982 and 1.10.1983 from which dates the appellants enrolled in the
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Pension Scheme. Therefore, the appellants were not on probation at the time of implementation of the Scheme. Whereas the appellants were in the service of the Society on the date of the commencement of the Scheme. They had enrolled in the Pension Scheme with retrospective effect from 1.5.1982 and 1.10.1983 respectively as stated earlier. The benefit of the 3[rd] proviso was declined to the appellants by the learned Single Judge on finding that the appellants were not on probation at the time of the implementation of the Scheme. Referring to the 3[rd] proviso, the learned Single Judge found that the 3[rd] proviso is applicable only to those who were on probation at the time of implementation of the Scheme. In concluding so, the learned Single Judge had also relied upon another decision of a learned Single Judge in Sukumaran.N. v. Kerala State Co-operative Employees Pension Board, Tvm and another (2010(4) KHC 859). We find no error committed by the learned Single Judge so as to be rectified in appeal. We, on an anxious consideration, hold that the employees of the Co-operative Society, who were on probation before the introduction of the Pension Scheme, are not entitled to count their period of probation to count the qualifying
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service for pension. Such persons are entitled to count the qualifying service for pension only from the date on which they enrolled in the pension scheme. Whereas in the case of employees, who were on probation as on the date of commencement of the Scheme, are entitled to count the period of probation to reckon the qualifying service for pension in the event the employer had remitted the contribution covering the period of probation. Therefore, we find that the appeal is devoid of merits.
In the result, the Writ Appeal fails. Accordingly, it is dismissed. No costs.
## **(C.N.RAMACHANDRAN NAIR, JUDGE)**
## **(P.S.GOPINATHAN, JUDGE)**
## **ps/26/9**
