Kerala High Court
Rahmathulla P.P vs Manjeri Co-Operative Urban Bank Ltd
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 28TH DAY OF JANUARY 2013/8TH MAGHA 1934
WP(C).No. 34371 of 2009 (N)
-----------------------------------
PETITIONER(S):
--------------------------
1. RAHMATHULLA P.P., PULIKKOTTIL HOUSE,
KATTUMUNDA, VADAPURAM POST, MANJERI,
MALAPPURAM DISTRICT.
2. K.K.RAMACHANDRAN, ARCHITHAM,
KALIKAVU TEMPLE ROAD, MELAKKAM P.O., KARUVAMBRAM,
MANJERI, MALAPPURAM DISTRICT.
3. SMT.A.PARVATHY DEVI,
ARCHANA, CALICUT ROAD, NEAR SREEKRISHNA TEMPLE,
MANJERI-676 121, MALAPPURAM DISTRICT.
BY ADVS.SRI.P.N.MOHANAN
SRI.K.RAJESH SUKUMARAN
RESPONDENT(S):
----------------------------
1. MANJERI CO-OPERATIVE URBAN BANK LTD.,
REPRESENTED BY GENERAL MANAGER, P.B.NO.4,
REGISTERED OFFICE MANJERI, PIN-676 121
MALAPPURAM DISTRICT.
2. ASSISTANT PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND ORGANIZATION,
SUB-REGIONAL OFFICE, PB 1806, ERANJIPALAM POST
KOZHIKODE-673 006.
3. THE SECRETARY, KERALA STATE
CO-OPERATIVE EMPLOYEES' PENSION BOARD, P.B.NO.85,
KALA NIVAS, T.C.27/156, 157,
CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE,
THIRUVANANTHAPURAM-1.
* ADDL.R4 TO R6 IMPLEADED
CONT...
WP(C).No. 34371 of 2009 (N)
4. N.AABDUL SALAM, MANAGER, MANJERI
CO-OP. URBAN BANK LTD, MANJERI, MALAPPURAM-676121.
5. K.M.ABDUL NAZAR, JUNIOR ACCOUNTANT, MANJERI
CO-OP. URBAN BANK LTD, MANJERI, MALAPPURAM-676121.
6. P.V.SURESHKUMAR, MANAGER, MANJERI
CO-OP. URBAN BANK LTD, MANJERI, MALAPPURAM-676121.
* ADDL.R4 TO R6 IS IMPLEADED AS PER ORDER DATED 28/06/2010 IN I.A.NO.7298/10.
R1 BY ADV. SRI.V.G.ARUN
R1 BY ADV. SRI.T.R.HARIKUMAR
R2 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F.
R3 BY ADV. SRI.P.V.MOHANAN,SC,K.ST.CO.OP.EMP.PENSI
R3 BY ADV. SRI.K.R.SUNIL,SC,CO-OP.EMP.PENSION BOAR
R4-6 BY ADV. SRI.P.RAMAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AS
WP(C).No. 34371 of 2009 (N)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE SRO 486/06 PUBLISHED IN THE KERALA GAZETTE.
EXT.P2: COPY OF THE CIRCULAR ISSUED BY THE 3RD RESPONDENT
PENSION BOARD DATED 22/1/09.
EXT.P3: COPY OF THE ORDER DATED 26/10/2009 OF THE 2ND
RESPONDENT.
EXT.P4&5: COPY OF THE ORDERS DATED 23/9/2009 AND 26/10/2009.
EXT.P6: COPY OF THE PETITION DATED 9/11/2009 OF THE 2ND
PETITIONER.
EXT.P7,8&9: COPY OF THE LETTER DATED 19/11/2009 OF THE 1ST
RESPONDENT.
EXT.P10: COPY OF THE SRO 578/06.
EXT.P11 TO P13: COPY OF THE CERTIFICATE ISSUED BY THE CONCERNED
SOCIETIES.
EXT.P14: COPY OF THE INTERIM ORDER DATED 17/6/2010 IN
WPC.NO.9361/2010.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
AS
A.M.SHAFFIQUE, J
---------------------------------------
W.P. (C) NO. 34371 of 2009
----------------------------------------
Dated this the 28th day of January, 2013
JUDGMENT
Petitioners were employees of the first respondent Bank who retired during 2007 on superannuation. When the petitioners joined service, Employees Provident Fund (EPF) as per the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred as the Act) was made applicable to the establishment.
2. By Ext.P1 notification dated 19/6/2006 as per G.O. (Ms.) No.44/2006/LBR as S.R.O.No.486/2006, the Government exempted the primary Co-operative Societies in the State of Kerala from the provisions of the Act, by virtue of the power conferred on the State Government under Section 17 (1C) of the Act.
3. In fact Ext.P1 came to be issued after formation of the Kerala Co-operative Societies Employees Self Financing Pension Scheme of 1994 and in terms of the said scheme, by virtue of Ext.P1, the Government had declared that the Kerala State Co- operative Societies Employees Self Financing Pension Scheme W.P. (C) NO. 34371 of 2009 2 1994 is applicable to the Primary Co-operative Societies in the State of Kerala.
4. Still further by Ext.P10 S.R.O.No.578/2006, in modification of the earlier notification Kerala Co-operative Societies Employees Self Financing Pension Scheme of 1994 is made applicable to Primary Co-operative Societies, Regional, Central and Apex Co-operatives, other than Kerala State Co- operative Bank and District Co-operative Bank coming under the administrative control of the Registrar of Co-operative Societies.
5. The petitioner claims that as per Rule 15 of the Kerala Co-operative Societies Rules the first respondent Bank is a primary credit Co-operative Society and therefore Ext.P1 squarely applies. Petitioners complaint is that after Ext.P1 notification the Employees Provident Fund Organisation has stopped paying the pensionary benefit and called upon them to refund the amounts with interest as evident from Exts.P3, P4 and P5. In that view of the matter the petitioner seeks for a direction to the first respondent to take steps to include the petitioners in the 3rd respondent pension board and to pay the employers contribution to the pension board as provided under W.P. (C) NO. 34371 of 2009 3 clause 3 of the pension scheme and to declare that the petitioners are entitled to get pension under the said scheme.
6. Counter affidavit is filed by the second respondent inter alia stating that since the State Government had issued Ext.P1 notification, on the bonafide belief that the first respondent Bank was also covered by the said notification they have issued Exts.P3, P4 and P5 notices to the employees of the first respondent Bank, as they will not be covered under the EPF pension scheme under the Act from the date of notification.
7. The additional respondents 4 to 6 having filed an impleading petition contends that the Kerala Co-operative Societies Employees Self Financing Pension Scheme has no application to the employees of Urban Co-operative Banks as the notification Ext.P1 does not specifically mention exemption under Section 17(1C) of the Act to Urban Co-operative Banks. The learned counsel for the additional respondents relies upon the definition of Primary Co-operative Societies under Section 2(od) of the Co-operative Societies Act, and Urban Co-operative Societies under Section 2(ta) and contends that they are totally different. Urban Co-operative Societies cannot be classified under W.P. (C) NO. 34371 of 2009 4 the head of Primary Urban Co-operative Societies. It is therefore contended that when a specific power is conferred on the State Government to exempt a class of establishments from the preview of the notification Ext.P1 has to be strictly interpreted and by giving such a strict interpretation, Urban Co-operative Banks are not at all included either in Ext.P1 notification or Ext.P10 notification. Therefore according to the additional respondents, the request of the petitioner cannot be granted as it will affect the interest of the additional respondents also.
8. The 3rd respondent also has filed a counter affidavit inter alia contending that the petitioners are eligible for pension under the scheme if they are not paid pension under the Employees Provident Fund Act and if the employer submits proper application steps shall be taken by the pension board to pay pension to the petitioners under the pension scheme.
9. Going by the arguments raised by the learned counsel appearing for the petitioner and the respondents, the question for consideration is whether the first respondent Bank being an Urban Co-operative Bank is covered by Ext.P1 or by Ext.P10 notification and exempted under Section 17(1C) of the Act. W.P. (C) NO. 34371 of 2009 5
10. The main contention raised by the learned counsel for the petitioner is on the basis of Rule 15 of the Co-operative Societies Rules which classifies the societies into different types. With reference to credit societies, they are sub classified as Short term and Medium term and again as Apex, Central and Primary. Under the head of primary the examples shown include Urban Co-operative Banks. The argument is that since Urban Co- operative Banks and Urban Co-operative Societies are included and shown as primary credit societies under the classification, Ext.P1 squarely applies, as the pension scheme refers to different classes of Co-operative Societies. A reference to the scheme would clarify the above issue.
11. Section 80 A of the Co-operative Societies Act, gives power to the Government to frame a Self-Financing Scheme for the establishment of a Pension Fund to employees. Section further provides that the Government may appoint different dates for the application of the Act to different classes of Societies. When the classification is made in the Rule itself one has to verify, under what class Urban Co-operative Bank comes in. In fact when the exemption notification specifically refers to W.P. (C) NO. 34371 of 2009 6 Primary Co-operative Societies the question will be whether the exemption is applicable to such Primary Societies coming within the definition of the word Primary Co-operative Societies as defined under Section 2(od) of the Co-operative Societies Act and draw a distinction from an Urban Co-operative Bank as defined under Section 2 (ta) of the said Act.
12. The Co-operative Societies Act does not make any provision for classification, but the rule makes the classification. When Rule 15 clearly indicates that "after the registration of a society, the registrar shall classify the society into one or other of the following types according to the principal object provided in the bye-laws and the examples in respect of Primary Credit Society is stated to include Urban Co-operative Banks it is not possible to consider Urban Co-operative Banks as an entity which does not come under Primary Co-operative Societies."
13. From the definition of "Primary Co-operative Society"
and the "Urban Co-operative Society", in the Co-operative Societies Act the differentiation can be seen in regard to the area of operation and Urban Co-operative Societies does not under take any non Agricultural Credit Activities. Urban Co-operative W.P. (C) NO. 34371 of 2009 7 Bank is defined as a society functioning in an Urban area which undertakes Banking business with license from the R.B.I. Therefore a distinction has been drawn with reference to Urban Co-operative Bank with Primary Co-operative societies in relation to their nature of activities as well as the area of operation.
14. But if one looks at the pension scheme which is formulated by the Government by virtue of power under Section 80 A of Co-operative Societies Act one can easily see that the Government can frame a self financing pension scheme for the establishment of pension fund and payment of pension to the employees. When the Registrar had been given the power under Rule 15 to classify the society into different classes, and when the pension scheme is made applicable in respect of different classes of societies, naturally one has to go by the classification provided in the Rules. In that view of the matter I do not think that the difference in the definition of the Primary Co-operative Societies and Urban Co-operative Bank or Urban Co-operative Credit Societies will not render any assistance to the additional respondents to insist that they continue to be covered under the EPF Scheme. In the said circumstance I am of the view that this W.P. (C) NO. 34371 of 2009 8 writ petition is only to be allowed.
The first respondent Bank shall forward the documents relating to pension of the petitioner within 2 weeks time from the date of receipt of this judgment to the 3rd respondent and the third respondent shall take necessary action in accordance with law, within a period of 2 months from the date of receipt of copy of this judgment.
A.M.SHAFFIQUE, JUDGE AS