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2010 Supreme(Ker) 833

IN THE HIGH COURT OF KERALA
K.T. SANKARAN, J.
N. SUKUMARAN - Appellant
Versus
KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD AND ANOTHER - Respondent
Writ Petition (C) No. 22982 of 2009
Decided on : 19-08-2010

Advocates Appeared:
For the Appellant : Jayasree Manoj.
For the Respondent: V.G. Arun, T.R. Harikumar, P.V. Mohanan (SC).

Headnote:

Kerala Co operative Societies Employees Self Financing Pension Scheme 1994 - Cl. 18, Cl. 19 & Cl. 38 - Petitioner appointed as Clerk in the Nooranad Service Co-operative Bank Ltd., No.1559 on 1.6.1972. He retired from service on superannuation on 30.6.2002. According to the petitioner, he is entitled to pension under the Scheme, taking the qualifying service as 1.7.1974. The Kerala State Co-operative Employees Pension Board (hereinafter referred to as 'the Board') took the view that the qualifying service of the petitioner is to be reckoned with reference to the date of Ext.P1 resolution passed by the Bank, namely, 17.2.1997 and not 1.7.1984, the date of commencement of the Scheme in the Bank mentioned in that resolution - Held, Petitioner was that the qualifying service should be reckoned with effect from 1.7.1984. However, he has shifted his stand in the Writ Petition and he claims that his qualifying service should be reckoned with effect from 1.7.1974 - records would show that he became a member to the contributory provident fund only with effect from 1.7.1984, as per the resolution of the Bank dated 28.1.1989. The employer had made contribution in the case of the petitioner only from 1.7.1984. Therefore, only that portion of the employer's contribution would be transferred to the pension fund under the Scheme. If so, the petitioner cannot aspire for computing the total qualifying service reckoning 1.7.1974 as the date of commencement of qualifying service - Appeal is allowed

JUDGMENT :

K.T. Sankaran, J.

1. In this Writ Petition, various questions pertaining to the interpretation of the provisions of the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994 (hereinafter referred to as 'the Scheme'), Section 61 of the Co-operative Societies Act read with Rule 58 of the Kerala Co-operative Societies Rules, 1969, are raised for consideration. The petitioner was appointed as Cleric in the Nooranad Service Co-operative Bank Ltd., No. 1559 on 1.6.1972. He retired from service on superannuation on 30.6.2002. According to the petitioner, he is entitled to pension under the Scheme, taking the qualifying service as 1.7.1984. The Kerala State Co-operative Employees Pension Board (hereinafter referred to as 'the Board') took the view that the qualifying service of the petitioner is to be reckoned with reference to the date of Ext.P1 resolution passed by the Bank, namely, 17.2.1997 and not 1.7.1984, the date of commencement of the Scheme in the Bank mentioned in that resolution. The view of the Bank is expressed in several documents in several ways. In the latest counter affidavit filed on 10.8.2010 as per the direction issued by this Court, the Bank took the stand that the writ petitioner is entitled to pension reckoning the qualifying service with effect from 1.7.1984 and not 1.7.1974 as claimed by the petitioner.

2. The Board granted pension to the petitioner as per Ext. P4 order dated 6.7.2005 at the rate of Rs. 662/- per month. According to the petitioner, this figure was arrived at reckoning the qualifying service with effect from 19.2.1997, the date of the resolution passed by the Bank. The petitioner challenged Ext. P4 order in W.P.(C) No. 33881 of 2005, which was disposed of along with another Writ Petition, as per Ext. P10 judgment dated 19.9.2006, directing the Board to consider all the contentions of the parties and to pass an order after verifying the records kept by the Bank. The Board passed Ext. P11 order dated 5.2.2007, taking the view that the Bank had no authority to pass a resolution on 17.2.1997 giving retrospective operation to the commencement of the contributory provident fund with effect from 1.7.1984. Therefore, it was held that the pension already granted to the petitioner was just and proper.

3. The petitioner approached the Lok Ayukta in Complaint No. 1190 of 2007 challenging Ext. P11 order. The contention put forward before the Lok Ayukta was that the pension was liable to be refixed reckoning the qualifying service from 1.7.1984 to 30.6.2002. The Lok Ayukta did not accept this contention and therefore, the complaint was dismissed.

4. The reliefs prayed for in the Writ Petition are the following:

(i) to issue writ of certiorari or any other writ, direction or order calling for the records leading to the issuance of Exhibits P11 and P12 and quash the same;

(ii) to issue a writ of mandamus or any other writ, direction or order directing the 1st respondent to revise the pension sanctioned to the petitioner treating the date of commencement of qualifying service as 01/07/1974 and to pay the benefits forthwith including arrears from 01/07/2002 till the date of payment with interest @ 24% per annum;

(iii) to issue a writ of mandamus or any other appropriate writ, direction or order directing the 2nd respondent to transfer the employer's contribution of provident fund in respect of the petitioner from 01/07/1974 to 30/06/1984 with interest to the Pension Fund forthwith, if not already transferred;

(iv) to issue a writ of mandamus or any other appropriate writ, direction or order directing the 1st respondent to recover from the 2nd respondent employer's contribution of provident fund in respect of the petitioner from 01/07/1974 to 30/06/1984 with interest forthwith, if not already recovered.

5. The Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act'), which is an Act to consolidate, amend and unify the laws relating to co-operative societies in the Sta










































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