T.V.KUNHIKANNAN v. Registrar of Co-operative Societies, Kerala State Co-operative Societies Pension Board, Padiotchal Service Co-operative Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 28TH DAY OF SEPTEMBER 2017/6TH ASWINA, 1939** ## **WP(C).No. 1945 of 2010 (P) ---------------------------** ## **PETITIONER:** ## **----------** ## **T.V.KUNHIKANNAN** **PERINGALA CHITTADI P.O, ALAKKODE.VIA, KANNUR-670571.** **BY ADVS.SRI.P.U.SHAILAJAN SRI.M.SURESH KUMAR SMT.D.N.NISHANI SRI.V.SREEJITH (K/1398/2000)** **RESPONDENT(S):** **--------------** **1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM.** **2. KERALA STATE CO-OPERATIVE SOCIETIES PENSION BOARD, THIRUVANANTHAPURAM, REPRESENTED BY, ITS SECRETARY.** **3. PADIOTCHAL SERVICE CO-OPERATIVE BANK, PADIOTCHAL, KANNUR DISTRICT, REPRESENTED BY ITS, SECRETARY.** **R1 BY GOVERNMENT PLEADER SRI RON BASTIAN R2 BY ADVS. SRI.K.R.SUNIL,SC, SRI.V.V.NANDAGOPAL NAMBIAR SRI.P.V.MOHANAN,SC R3 BY ADV. SRI.K.V.SREE VINAYAKAN SRI.T.K.VIPINDAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 1945 of 2010 (P)** ## **---------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** ## **---------------------** - **P1; A TRUE COPY OF THE AWARD IN I.A 38/96 OF THE LABOUR COURT, KANNUR.** - **P2; A TRUE COPY OF THE JUDGMENT DATED 7.1.2003 IN OP 369/OF 1998** - **P3; A TRUE COPY OF THE JUDGMENT DATED 11.6.2004 IN W.A 789 OF 2004.** - **P4; A TRUE COPY OF THE RECEIPT DATED 28.6.2005 SHOWING REMITTANCE OF THE PROVIDENT FUND AND WELFARE FUND.** - **P5; A TRUE COPY OF THE ENTRIES IN THE STAFF PROVIDENT FUND REGISTRAR.** - **P5(A) A TRUE COPY OF THE STATEMENT OF PAYMENT.** - **P6; A TRUE COPY OF THE JUDGMENT DATED 23.5.2008 IN WPC NO 8761 OF 2007.** - **P7: A TRUE COPY OF THE REPORT DATED 31.8.2009.** - **P8: A TRUE COPY OF THE ORDER DATED 13.11.2009 OF THE 2ND RESPONDENT FIXING THE PENSION.** ## **RESPONDENTS EXHIBITS: NIL** ## **--------------------** - **K.V. P.S.TO JUDGE** ## **A.MUHAMED MUSTAQUE, J.** ========================= ## **W.P.(C).No.1945/2010** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28[th] day of September, 2017 ## **J U D G M E N T** 1. The petitioner, pursuant to the disciplinary proceedings was dismissed from the service of a co-operative bank. The dismissal was on 29/7/1981. Thereafter, after a long drawn battle through the Labour Court and this Court, he was ordered to be reinstated with effect from 1/10/2004. The Labour Court ordered reinstatement with full backwages. This Court, in a challenge made by the co-operative bank, modified the order of Labour Court and ordered only 50% of backwages. The present issue is concerning the petitioner's entitlement to pension under the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994. 2. The petitioner paid his portion of the contribution to the pension scheme as per Exhibit P4. It appears that the bank so far not made any remittance for the period during which the petitioner was under suspension and also for the period during which he was kept out of service. Since the second respondent-Pension Board did not receive any proposal covering the period of suspension, the ``` WPC 1945/2010 ``` ## **-:2:-** Pension Board did not sanction pension reckoning the period during which the petitioner was out of service (including the period under suspension) as qualifying service for sanction of pension. Challenging these orders, the petitioner has approached this court. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. The learned counsel for the bank would submit that the bank need not pay any amount towards contribution for the period during which the petitioner was kept out of service. If at all they are liable to pay, they are only liable to contribute for such portion of backwages ordered to be paid to the petitioner by this Court. That means that the entire pay need not be calculated; only 50% pay need be calculated for the contribution. The learned counsel for the Pension Board submits that unless the Board receives the contribution for the period during which the petitioner was kept out of service, they cannot release pension reckoning qualifying service covering the period during which the petitioner was kept out of service. It is also argued by the learned counsel for the Pension Board that the petitioner cannot be given pension during which he had not served the bank. The learned ``` WPC 1945/2010 ``` ## **-:3:-** counsel for the Pension Board particularly referring to Rule 2(f) of the Scheme reiterated this argument. The learned counsel for the petitioner rebutting all these arguments said that when the petitioner is ordered to be reinstated, he cannot be denied continuity of service. Therefore the entire period during which he was out of service has also to be reckoned for the purpose of pension. He also relied upon the judgment of the Hon'ble Supreme Court in **Gurpreet Singh vs State Of Punjab And Ors. [(2002) 9 SCC 492].** 4. There are two points that arise for consideration. The first of such is whether the petitioner is entitled to reckon the period during which he was kept under suspension and out of service as a qualifying service or not. Rule 2(f) of the Scheme defines "employee" as follows: "Employee means a person appointed in the service of a Co-operative society registered under the Kerala Co-operative Societies Act, 1969, against a sanctioned post or in a post approved by the competent authority under the said Act and who is working on a full time, regular and paid basis including part-time contingent employees, commission agents, ``` WPC 1945/2010 ``` ## **-:4:-** security staff and such other categories of employees." 5. This Court finds no merit in the contention raised by the learned counsel for the Pension Board that the petitioner not being a regular employee cannot be considered as an employee for the purpose of reckoning qualifying service due to suspension pursuant to disciplinary proceedings. Nobody has a case that the petitioner was not a regular employee. In fact, the petitioner continued to be in service until and unless he was removed from service. Therefore, merely because the petitioner was kept under suspension, itself cannot be a reason to contend that he was not a regular employee of the bank. 6. Then the next point to be considered is what is qualifying service. Rule 2(h) of the Pension Scheme defines qualifying service as follows: - " 'qualifying service' means service reckoned for the purpose of pension under this Scheme." 7. Under Rule 19 of the Pension Scheme, qualifying service is illustrated. It is referred in Rule 19(5) that period under suspension will be counted as qualifying service only if it is declared by the ``` WPC 1945/2010 ``` ## **-:5:-** competent authority for that purpose. Therefore, the only question is whether the period of suspension can be counted as qualifying service or not. It is to be noted that the petitioner has been reinstated in the service. The punishment of removal has been set aside by the Labour Court. 8. The Hon'ble Supreme Court in **Gurpreet Singh's** case (supra) held that continuity of service could not be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. 9. In the light of the above judgment, I am of the view that the petitioner's period of suspension and the period during which he was kept out of service due to disciplinary proceedings shall be reckoned as qualifying service for the purpose of pension. - 10.Then the question is in what manner the pay has to be calculated. The pay as per the scheme has to be calculated with reference to the definition of "pay" as referred under Section 2(g) of the scheme. Nobody has a case that the petitioner is not entitled to full pay. The 50% of backwages paid was totally under a different context and that has nothing to do with the definition of "pay", as ``` WPC 1945/2010 ``` ## **-:6:-** referred under the scheme. The "pay" has to be determined with reference to what an employee is entitled to draw and not with reference to what was drawn. Therefore, this court is of the view that calculating contribution based on the actual pay to which the petitioner is entitled to, the bank shall make necessary contributions to the pension fund. The bank shall, together with proportionate contribution made by the employee, forward the contribution to the Pension Board within two months from the date of receipt of a copy of this judgment. Thereafter, the Pension Board shall release the pension to the petitioner in accordance with the Scheme without any delay. The writ petition is disposed of as above. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ms