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The Kerala State Co-Op.Employees Pension v. M.K.Santha

Kerala HC26 Jul 2016WP(C)/24696/2009

Case brief

AI extract

What is this about?

Writ petition filed by the Pension Board to quash a Lok Ayukta order directing payment of pension with interest. The High Court set aside the order because the society had not remitted contribution under the Pension Scheme. The Court directed the society to deposit the contribution first.

What did the court decide?

Set aside the Impugned Order. Directed the 3rd Respondent (Bank) to pay the pension contribution as per the Scheme to the Petitioner within two months.

The Kerala State Co-Op.Employees Pension Vs M.K.Santha — Cooperative Societies | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938

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WP(C).No. 24696 of 2009 (F)

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PETITIONER(S):

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THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, REPRESENTED BY ITS SECRETARY, THE KERALA STATE CO-OPERATIVE PENSION BOARD, KUNNUMPURAM, THIRUVANANTHAPURAM.

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BY ADV. SRI.K.R. SUNIL.

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RESPONDENT(S):

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1. M.K. SANTHA, D/O.KUNHIKANNAN, MANGALATH HOUSE, (PO) ERUVATTI, THALASSERY.

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2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.

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3. THE SECRETARY, KOTTAYAM KSHEEROLPADAKA SAHAKARANA SANGHAM LTD., KOTTAMPOIL, THALASSERY TALUK.

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4. KERALA LOK AYUKTA, REPRESENTED BY ITS SECRETARY, OFFICE OF THE LOK AYUKTA, THIRUVANANTHAPURAM.

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R2 BY GOVT. PLEADER SRI.G. GOPAKUMAR. R3 BY ADV. SRI.N.M.MADHU.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 24696 of 2009 (F)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE COMPLAINT NO.1739/2007 FILED BEFORE THE LOK AYUKTA. EXT.P2 COPY OF THE ORDER NO.1739/2007 DATED 24/06/2009. EXT.P3 COPY OF THE CIRCULAR NO.2/2009 DATED 12/02/2009.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

SHAJI P. CHALY, J.

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W.P.(C) No.24696 of 2009

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----------------------------------------------Dated this the 26^th day of July, 2016

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JUDGMENT

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This writ petition is filed by the petitioner, Kerala State Co-operative Employees Pension Board, to quash Ext.P2 order passed by the 4^th respondent whereby petitioner was directed to pay pension to 1^st respondent with 12% interest per annum from 05.05.2004 till payment. Material facts for the disposal of the writ petition are thus:

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First respondent retired on superannuation on 31.05.2004 as Secretary of the 3^rd respondent Society. First respondent filed a complaint before the 4^th respondent seeking direction to the petitioner to pay pension. According to the petitioner, the 3^rd respondent society has not submitted any application for pension and has not taken any action with respect to the transfer of contribution under the Contributory Provident Fund. Pending complaint before the Lok Ayukta, the Verification Officer verified and determined the contribution. Accordingly, demand notice was served on the petitioner on 05.02.2009. No details of remittance was furnished by the 3^rd

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W.P.(C) No.24696 of 2009 2

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respondent nor the application for pension is forwarded. However, the Lok Ayukta as per Ext.P2 order, directed the petitioner to pay pension with 12% interest. According to the petitioner, Ext.P2 order suffers from manifest error and also lacking jurisdiction to entertain the complaint filed by the 1^st respondent.

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Heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the 1^st respondent. Perused the pleadings and documents on record.

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The predominant contention advanced by learned counsel for the petitioner is that, the 4^th respondent has no power to entertain the complaint so filed by the 1^st respondent seeking pension. But however a reference to Sec.8 and Second Schedule of the Kerala Lok Ayukta Act, 1999 resolves the said point raised by the petitioner. As per Second Schedule of the Act, there are certain aspects excluded from the purview of the 4^th respondent. However, the matters pertaining to pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service, the 4^th respondent is vested with sufficient powers. Therefore,

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W.P.(C) No.24696 of 2009 3

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the contention raised by the petitioner with respect to the jurisdictional aspect is not sustainable. However, the contention with respect to the contribution to be made by the 3^rd respondent for and on behalf of the 1^st respondent is a sustainable argument, in view of the Pension Scheme, 1994. As provided under clause 39 of the Pension Scheme, in order to provide pension to an employee enrolled, contribution is to be effected by the employer. According to the petitioner, no such contribution is paid by the 3^rd respondent in respect of the 1^st respondent. Therefore, according to the petitioner, they are not duty bound to pay any pension without the contribution being made by the 3^rd respondent with interest at the rate of 24%, as provided under the proviso to Sec.39. Learned counsel has also brought my attention to Clause 20 of the Scheme, wherein superannuation pension is dealt with and specifically referred to the proviso to sub-clause (3), which reads thus:

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“Provided that an employee who retires and who has not already enrolled in the pension scheme, shall get arrears of pension only with effect from the month on which the society remits the total pension contribution with interest thereof.”

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W.P.(C) No.24696 of 2009

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So, going by the proviso stated supra , a person is entitled to get arrears of pension only with effect from the month on which the society remits the total pension contribution with interest thereof. Taking into account these aspects pointed out by learned counsel for the petitioner and also taking into account the arguments advanced by the learned Government Pleader as well as the learned counsel for the 1^st respondent, I am of the considered opinion that the 4^th respondent has not taken into account the parameters and stipulations contained under the Pension Scheme, 1994. Therefore, the findings of the 4^th respondent and the conclusions arrived at without referring to the provisions of the Scheme, cannot be sustained under law.

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In that view of the matter, I set aside Ext.P2 order and direct the 3^rd respondent Bank to pay the pension contribution as per the Scheme to the petitioner, within a period of two months from the date of receipt of a copy of this judgment. On receipt of the contribution and the application, the petitioner shall process the same and without any delay, pay pension to the 1^st respondent.

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W.P.(C) No.24696 of 2009

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The writ petition is disposed of accordingly.

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Sd/- SHAJI P. CHALY JUDGE

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//true copy//

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P.S. to Judge

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St/26.07.2016

The Kerala State Co-Op.Employees Pension v. M.K.Santha

Case brief

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The Kerala State Co-Op.Employees Pension v. M.K.Santha

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