Allowed

A.P. Beenamma v. Kerala State Co-Operative Employee Pension Board

Kerala HC19 Jun 2024WP(C)/4108/2018

Case brief

AI extract

What is this about?

A retired co-operative bank employee sought full pension counting service from 21.5.1985 to 20.2.1988 when she was out of service pursuant to a rescinded appointment later restored by court orders. The court held she was entitled to count that period for full pension and quashed the order denying full pension.

What did the court decide?

Ext.P4 quashed to extent it excluded 21.5.1985-20.2.1988; respondents to recalculate pension, recover any further contribution, disburse arrears and consequential benefits.

A.P. Beenamma Vs Kerala State Co-Operative… — Pension and Retirement Benefits | Kerala HC (2024)

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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 EASWARAN S.

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WEDNESDAY, THE 19TH DAY OF JUNE 2024 / 29TH JYAISHTA, 1946

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WP(C) NO. 4108 OF 2018

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PETITIONER/S:

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A.P. BEENAMMA AGED 58 YEARS
(RETIRED ASSISTANT SECRETARY,
ALAPPUZHA URBAN CO-OPERATIVE BANK LTD.NO.A67,
PICHU IYER JUNCTION, CULLEN ROAD, MULLACKAL,
ALAPPUZHA) KRISHNAVILASOM HOUSE,
THURAVOOR SOUTH P.O.,PUTHENCHANDA,
CHERTHALA,ALAPPUZHA-688532

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BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY
SRI.S.A.ANAND
SRI.K.A.BALAN, SRI.PETER JOSE CHRISTO
SMT.K.N.REMYA, SMT.N.SANTHA, SRI.V.VARGHESE

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RESPONDENT/S:

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1 KERALA STATE CO-OPERATIVE EMPLOYEE PENSION BOARD THIRUVANANTHAPURAM, PIN-695001, REPRESENTED BY ITS SECRETARY.

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2 ADDITIONAL REGISTRAR/SECRETARY, KERALA STATE CO-OPERATIVE EMPLOYEE PENSION BOARD, THIRUVANANTHAPURAM, PIN-695001

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3 ALAPPUZHA URBAN CO-OPERATIVE BANK LTD. NO.A67 PICHU IYER JUNCTION,CULLEN ROAD, MULLACKAL, ALAPPUZHA688011,REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER

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4 PRESIDENT, ALAPPUZHA URBAN CO-OPERATIVE BANK LTD. NO.A67 PICHU IYER JUNCTION, CULLEN ROAD, MULLACKAL,ALAPPUZHA-688011

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BY ADVS. SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE
EMPLOYEES PENSION BOARD
SRI.R.AZAD BABU
SMT.REJITHA RAJAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.4108 of 2018

“C.R.”

EASWARAN S. , J.

W.P. (C) No.4108 of 2018

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Dated this the 19th day of June 2024

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JUDGMENT

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The writ petition is filed by the petitioner seeking for a

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direction to the respondents 1 and 2 for the grant of full pension to the petitioner by reckoning her service for the period from 21.5.1985 to 20.02.1988 with arrears thereof. She has also sought for quashing Ext.P4 to the extent full pension is not sanctioned.

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Succinctly, the brief facts of the case read as follows:

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The petitioner was appointed as Junior Clerk on

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22.01.1985. However, the resolution by which the petitioner was appointed was rescinded by the Joint Registrar on 15.5.1985. The same was challenged in OP No.6374 of 1985. By Ext.P1 judgment the same was set aside and the Joint Registrar was directed to hear the petitioner and take a fresh decision. It is

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W.P.(C) No.4108 of 2018 3

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pertinent to note that the petitioner was continuing during the interregnum by virtue of the interim order granted by this Court. Later, the Joint Registrar issued order on 31.12.1987 permitting the petitioner to continue in service and directed the Bank to reinstate the petitioner in service. Accordingly, on 21.2.1988, the petitioner was readmitted to duty by the Bank. However, the petitioner’s request for all service benefits including pay and allowances during the period from 21.5.1985 to 20.2.1988 was not granted. Hence, the petitioner approached this Court in O.P. No.3995 of 1991 and, this Court, by judgment dated 22.6.1999, directed the Joint Registrar to take a fresh decision in this regard. In terms of the said decision, the petitioner was found eligible for the entire benefits. Challenging the said request, the 3^rd respondent Bank again approached this Court in O.P. No.29538 of 2000 which resulted in Ext.P3 judgment dated 8.1.2004. The relevant portion of Ext.P3 judgment reads as follows:

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“Even though the payment for the period has been computed and earmarked, I think it will be sufficient that the Bank pays 75% of the amount that might have been payable as wages for the period concerned, to the third respondent. This much

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W.P.(C) No.4108 of 2018 4

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amount has to be paid to the third respondent within one month from today. However, I make it clear that rest of the benefits and privileges, that might be available because of the reinstatement, including fixation of pay and consequential benefits, will not be affected because of this curtailment. Ext. P13 may be deemed to be modified to this extent alone. The contribution to Provident Fund etc., also are to be made by the Bank on this basis. However, bonus, leave with wages and medical allowance will not be payable for the period.”

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Pursuant to the judgment, the petitioner was paid 75%

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of the arrears of wages. It is pertinent to note that, in the aforesaid judgment, there was a categoric finding that the period from 21.5.1985 to 20.2.1988 would be counted for all consequential benefits. However, despite Ext.P3, after the retirement of the petitioner, the 2nd respondent passed Ext.P4 order wherein the full pension of the petitioner was not sanctioned. Being aggrieved by the same the petitioner filed Ext.P5 representation before the 2^nd respondent. Exts.P11 and P12 representations were also filed before respondents 3 and 4 respectively. When no action was taken, the petitioner approached this Court seeking directions.

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W.P.(C) No.4108 of 2018

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A counter affidavit has been filed on behalf of respondents 3 and 4 in which it was specifically averred in paragraph No.4 as follows:

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“4. These respondents do not dispute the proposition that the period from 21/5/1985 to 20/2/1988 shall also be taken in to consideration while calculating the period of qualifying service of the petitioner for the purpose of arriving at her eligible pension. The bank has remitted the contribution to the pension fund as per the prevailing norms in time and submitted her pension papers to the Board when in advance.”

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The petitioner had raised a further claim of refund of Rs.40,051/- towards the retirement benefits. However, the said claim of the petitioner towards the aforesaid amount has not attained finality. Even going by the counter affidavit of respondents 3 and 4, the same is ordered to be recovered pursuant to an arbitration proceeding which is still pending consideration.

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I have heard Sri.S.P. Aravindakshan Pillay, the learned counsel appearing for the petitioner and Sri.M.Sasindran, learned Counsel appearing for the respondents 1 and 2 and

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W.P.(C) No.4108 of 2018

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Sri.Azad Babu, the learned Counsel appearing for respondents 3 and 4.

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Sri.S.P.Aravindakshan Pillay, the learned Counsel for

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the petitioner pointed out that as per Ext.P26 letter dated 6.3.2018 issued by the Kerala State Cooperative Pension Board, the 3^rd respondent has been directed to remit an amount of Rs.30,165/- towards the amount due together with 10% interest for sanctioning full pension to the petitioner. This, according to respondents 3 and 4, has been complied with and the same has already been mentioned in the counter affidavit filed by respondents 3 and 4. Therefore, according to the learned counsel for the petitioner, sans the entire dispute, the petitioner is entitled for the entire benefit for the period from 1985 to 1988.

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On the other hand, Sri.M.Sasindran, the learned counsel appearing for the respondents 1 and 2 controverted the submission of the learned counsel for the petitioner and submitted that the petitioner will not be entitled for full pension by counting her service from 21.5.1985 to 20.02.1988 because she was never in Board and she was not discharged her duties.

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W.P.(C) No.4108 of 2018 7

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To the pointed query as to why the Board has issued Ext.P26 letter directing the respondent bank to remit the amount towards the grant of full pension to the petitioner, the learned counsel for respondents 1 and 2 pointed out that the said amount is excluding the period from 21.5.1985 to 20.2.1988.

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On an anxious consideration of the rival submissions raised across the bar, it is explicitly clear that by Ext.P3 Judgment this Court had ordered that the period which the petitioner was kept out of service from 21.5.1985 to 20.02.1988 is directed to be taken into consideration for the purpose of granting all consequential benefits. What was interfered by this Court in the aforesaid judgment is only with regard to the payment of entire arrears of salary to which the petitioner was entitled to. This Court does not find any merit in the contention raised by respondents 1 and 2 that the said period cannot be counted since the petitioner has not worked. It is true that respondents 1 and 2 were not parties to Ext.P3 Judgment. However, on that count alone the claim of the petitioner cannot be defeated. At any rate, the order of this Court cannot act to

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W.P.(C) No.4108 of 2018 8

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the detriment of the petitioner especially when there is a categoric finding in the said judgment that what is being interfered is only with regard to the payment of entire arrears of salary which is limited to 75%. Therefore, viewed in the above perspective, the benefit of Ext.P3 judgment must be given to the petitioner. Hence, it is declared that the petitioner is entitled to calculate her service from 21.5.1985 to 20.02.1988 for the purpose of grant of full pension.

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Accordingly, the writ petition is allowed. Ext.P4 to the extent it denies full pension to the petitioner excluding the period from 21.5.1985 to 20.02.1988 is quashed. The respondents 1 and 2 are directed to recalculate the pension and find out whether there is any further contribution liable to be paid by respondents 3 and 4. Needful in this regard shall be done within a period of one month from the date of receipt of a copy of this judgment. If any further amounts are due, the same shall be intimated to respondents 3 and 4, who in turn, shall remit the aforesaid amount on receipt of such intimation within a further period of two weeks. On receiving the said remittance, the 1^st respondent shall disburse the arrears of

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W.P.(C) No.4108 of 2018 9

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pension and revise the pension and release the consequential benefits including arrears from the date of retirement within a period of one month from the date of such remittance.

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Sd/EASWARAN S. JUDGE

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20-6-2024.

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After the judgment was pronounced in this writ petition, learned counsel for the respondent Nos.1 and 2 mentioned the matter and pointed out to this Court that certain relevant facts could not be brought to the notice of this Court while the case was argued. Accordingly, on his request the matter was posted to be spoken to today.

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The learned counsel for respondent Nos.1 and 2 would point out before this Court the various clauses under the provisions of the Kerala Co-operative Societies Employees’ Self Financing Pension Scheme, 1994 to contend that the liability of the Board to pay arrears of pension is not available. He would advert to the 2^nd

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proviso to Rule 39(b) to contend that the pension shall be payable only from the date of succeeding month after the remittance of the entire portion of the employee’s contribution to the Pension Fund and no arrears shall be payable. Placing heavy reliance on the aforesaid rule the learned counsel for respondent Nos.1 and 2 submitted that the same could not be brought to the notice of this Court when the Judgment was rendered on 19.06.2024. Still further, according to the learned counsel for respondent Nos.1 and 2, had the said clause been brought to the notice of the Court the judgment would not have been rendered in favour of the petitioner.

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On the other hand, Sri.S.P.Aravindakshan

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Pillay, learned counsel appearing for the petitioner, asserted that the contention of the respondents 1 and 2 is not only fallacious but contrary to the law as well. He pointed out that as per Rule 17 read with Rule 38 of the Pension Scheme, it was the duty of the Board to have sought necessary details from the Bank with regard to the amount of contribution liable to be paid on account of

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the petitioner-employee. Having failed to do so, now the Pension Board cannot be heard to contend that the revised pension is liable to be paid only prospectively.

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The totality of the arguments of the parties lead to an indisputable position, i.e. the entitlement of the petitioner to receive the revised pension taking into the entire period of service. The question is whether it should be prospective or retrospective. Based on the submissions made today, this Court should consider as to whether, had these provisions been brought to the notice of the Court yesterday, whether any change would have occurred in the minds of the court.

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Rules 17, 38 and 39 of the Kerala Co-operative

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Societies Employees Self Financing Pension Scheme, 1994 are extracted for convenience below:

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“ 17. Pension, duties, and functions of the Board . - The Board shall be responsible for-

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(a) all matters connected with the administration of the Pension Fund;

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(b) laying down policies for the deposit of the Pension Fund from time to time;

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(d) collection of contribution to the Pension Fund;

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(e) launching of prosecution against societies;

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W.P.(C) No.4108 of 2018

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(f) speedy settlement of claims and sanction of pension; (g) proper and timely recovery of any amount due to the Board;

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(h) proper maintenance of accounts;

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(i) annual audit of accounts of the Board; and

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(j) any other matter that may be entrusted to it by the Government.”

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xxx xxx xxx

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“ 38. Recovery of amount due from a Society

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or a board constituted under the Act .- If any amount due from a society or a Board constituted under the Act to the Pension Fund under this Scheme is in arrears, the secretary or Chief Executive Officer of such board or any other Officer authorised by them in this behalf shall, after due enquiry, ascertain the amount of arrears and if the society fails or such Board fails to clear the arrears within the time as may be specified in the notice issued thereon, issue a certificate for that amount with interest at the rate of 24% p.a. per annum till date or Rs.500, whichever is higher, from the date of such notice to the Collector of the District in which the demand arises and the Collector, on receipt of such certificate, shall proceed to recover the amount with interest thereon in the same manner as if it were an arrears of Public revenue due on land.

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38A. Special provision for pension to certain persons . (1) Every person who has retired on superannuation from the service of a society during the period from 1st January, 1974 to 3rd June, 1993 shall be entitled to a monthly pension subject to the following conditions and restrictions, namely:-

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(a) any person who opts for pension shall, within one year, remit to the Pension Fund an amount equal to such portion of the employer's contribution to the Contributory Provident Fund, with interest thereon, up to the date of retirement of the employee concerned;

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(b) pension shall be payable only from the succeeding month of remittance of entire portion of the employer's contribution together with interest

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W.P.(C) No.4108 of 2018

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thereon to pension fund and no arrears of pension or family pension shall be payable up to that month;

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(d) family pension in respect of those eligible heirs of employees who have retired on superannuation drawing pension shall be payable from the date of this order.

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(2) The provisions of paragraphs 19, 20, 21,23, 24, 26 and 27 shall, mutatis mutandis apply to the payment of pension and family pension payable under sub-paragraph (1).”

xxx

xxx

xxx

“ 39. Special provision for transfer of accumulations from the Contributory Provident Funds .-(1) With effect on and from the date of application of this Scheme to a society or a Board constituted under the Act-

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(a) the portion of the employers' contribution with interest accrued thereon standing to the credit of the employees in the contributory provident fund established by that society or a Board constituted under the Act shall be transferred and credited by the society or such Board as the case may be to the pension fund under this scheme; and

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Provided that if the society /bank fails to transfer the pension fund arrears in full, pension proportionate to the fund remitted by the society/bank shall be paid to the employees.

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(b) the portion of the employers' contribution with interest accrued thereon standing to the credit of the employees in the contributory provident fund established under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Central Act 19 of 1952), shall be transferred in accordance with the provisions of that Act and credited to the pension fund under this scheme.

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Provided that in respect of persons retired from societies enrolled under EPF Scheme, and who are not

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W.P.(C) No.4108 of 2018

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drawing pension from the Employees Provident Fund hitherto the societies concerned shall remit the pension fund with the interest at the rates existing in the Employees Provident Fund Scheme during the period of their service ie., up to the date of retirement. Pension shall be payable only from the succeeding month after the remittance of the entire portion of employer's contribution to the pension fund and no arrears of pension shall be payable.

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Provided further that in respect of employees who are in service, the societies shall transfer the entire portion of employers' contribution with interest as per rules of the scheme within a period of one year from the date of publication of this notification and afterwards with interest @ 24% per annum.

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(IA) If any society fails to transfer the employers' contribution with interest accrued thereon after the commencement of Section 80 A of the Kerala Cooperative Societies Act, 1969 and the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994, within a period of one year from 14-03-1995, that is the date of implementation of the pension scheme or has transferred only a part thereof, shall be liable to transfer such amount or part thereof as the case may be with interest at the rate of 24% per annum.

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(2) The liability of an employer to contribute to the contributory provident funds referred to in subparagraph (1) shall cease from the date on which the amount standing to his credit in the said provident funds is transferred and credited to the Pension Fund under this scheme.”

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A reading of Rule 17(d) shows that it is the

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duty of the Pension Board to collect the contribution to the Fund. Under Rule 38, the Board is empowered to recover the arrears from the society towards the Fund.

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W.P.(C) No.4108 of 2018 15

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Before analyzing the contention of the respondents 1 and 2 with reference to the proviso to Rule 39(b), it would be beneficial to keep the above provision in mind. Turning to proviso to Rule 39(b), no doubt it provides that pension shall be payable only from the succeeding month after the remittance of the entire portion of the employers contribution to the Pension Fund and no arrears of pension shall be payable. At the first blush, the argument of the learned Counsel for respondents 1 and 2 may appear to appeasing. But the contention is misfounded. The first proviso to Rule 39(b) is not attracted on facts of this case. It applies only to those persons who retired from societies and enrolled under EPF Scheme and who are not drawing pension from the Employees Provident Fund qua the societies concerned. In those cases, the obligation is cast upon the society to transfer the amount with interest to the Pension Fund. In such cases alone the pension becomes payable from the succeeding month and no arrears are payable.

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W.P.(C) No.4108 of 2018

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This Court is totally at loss as to the understanding of respondents 1 and 2 to the provisions under Rule 39(b). On contrary, the attempt appears to deny the legitimate claim of the petitioner. This Court is refraining itself from commenting any further on the conduct of the respondents 1 and 2 since the endeavor of this Court is only to interpret the provisions of law and arrive at a just and equitable finding. But this Court will be failing in its duty, if it ignores the remiss on the part of the respondents in exercising their statutory obligations under Rules 17 and 38 and despite a colossal failure, they had the tenacity to argue that no arrears of pension is payable. Accepting the argument of the counsel for respondents 1 and 2 would render Exhibit P3 judgment otiose. Therefore, this Court has no hesitation to hold that the contentions of the respondents 1 and 2 are wholly untenable. Further, there is no doubt in the minds of this Court that had these provisions brought to the notice of this Court on the day it rendered the Judgment, result would not have been different. The

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W.P.(C) No.4108 of 2018 17

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findings on the additional point raised were necessary since this Court felt that they were purely legal and touching upon the interpretation of the 1^st proviso to Rule 39(b). The submissions of respondents 1 and 2 will not persuade this Court to alter the judgment rendered on 19.06.2024. Accordingly, this Court has no hesitation to reject the said contention of the respondents. The Judgment dated 19.6.2024 stands as it is.

Sd/-

EASWARAN S.

JUDGE

W.P.(C) No.4108 of 2018

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APPENDIX OF WP(C) 4108/2018

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`PETITIONER` `EXHIBIT P1:`	`EXHIBITS` `TRUE COPY` `O.P.NO.637`	`OF THE` `4 OF 19`	`JUDGMENT DATED 14.10.1987 IN` `85 OF THIS HON'BLE COURT.`
`EXHIBIT P2:`	`TRUE COPY` `O.P.NO.399`	`OF THE` `5 OF 19`	`JUDGMENT DATED 22.06.1999 IN` `91 OF THIS HON'BLE COURT`
`EXHIBIT P3:`	`TRUE COPY` `O.P.NO.295`	`OF THE` `38 OF 2`	`JUDGMENT DATED 08.01.2004 IN` `000-N OF THIS HON'BLE COURT.`
`EXHIBIT P4:`	`TRUE COPY` `11.08.2017`	`OF THE` `OF THE`	`ORDER NO.PB.PPO.802/ALP DATED` `2ND RESPONDENT`
`EXHIBIT P5:`	`TRUE COPY` `SUBMITTED` `RESPONDENT`	`OF THE` `BY THE` `ALING`	`REPRESENTATION DATED 09.10.2017` `PETITIONER BEFORE THE 2ND` `WITH A COPY OF THE POSTAL RECEIPT.`
`EXHIBIT P6:`	`TRUE COPY`	`OF THE`	`ACKNOWLEDGMENT CARD`
`EXHIBIT P7:`	`TRUE COPY` `THE 4TH RE`	`OF THE` `SPONDEN`	`MEMO DATED 06.05.2017 ISSUED BY` `T`
`EXHIBIT P8:`	`TRUE COPY` `THE PETITI`	`OF THE` `ONER TO`	`REPLY DATED 12.05.2017 FILED BY` `EXT.P7.`
`EXHIBIT P9:`	`TRUE COPY` `29.05.2017` `CONVENER,`	`OF THE` `ISSUED` `DISCIPL`	`MEMO NUMBER AUCB/DC/1/2007 DATED` `TO THE PETITIONER BY THE` `INARY COMMITTEE`
`EXHIBIT` `P10:`	`TRUE COPY` `BY THE PET`	`OF THE` `ITIONER`	`REPLY DATED 02.06.2017 SUBMITTED` `TO EXT.P9`
`EXHIBIT` `P11:`	`TRUE COPY` `SUBMITTED` `RESPONDENT`	`OF THE` `BY THE` `.`	`REPRESENTATION DATED 13.09.2017` `PETITIONER BEFORE HE 3RD`
`EXHIBIT` `P12:`	`TRUE COPY` `SUBMITTED` `RESPONDENT`	`OF THE` `BY THE`	`REPRESENTATION DATED 13.09.2017` `PETITIONER BEFORE THE 4TH`
`EXHIBIT` `P13:`	`TRUE COPY` `07.11.2017`	`OF THE` `OF THE`	`LETTER NO.RB-AUCB/1/2017 DATED` `4TH RESPONDENT.`

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W.P.(C) No.4108 of 2018

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EXHIBITTRUE COPY OF THE NOTICE NO.NIL DATED 20.11.2017
P14:ISSUED BY ONE SRI.CHERIYAN KURUVILLA, DISCIPLINARY
COMMITTEE.

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EXHIBIT TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER P15: TO EXT P14

A.P. Beenamma v. Kerala State Co-Operative Employee Pension Board

Case brief

What is this about?

What did the court decide?

A.P. Beenamma v. Kerala State Co-Operative Employee Pension Board

Case brief

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What did the court decide?

What the court decided

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