Kerala High Court
Ernakulam District Co-Operative Bank ... vs Antony.M.P on 23 November, 2021
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Tuesday, the 23rd day of November 2021 / 2nd Agrahayana, 1943
WA NO. 1535 OF 2021
AGAINST JUDGMENT DATED 31.8.2021 IN WP(C) 19297/2018 OF THIS COURT .
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APPELLANTS/RESPONDENTS 3 & 5 IN W.P.(C):
1.ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD.,
REPRESENTED BY ITS GENERAL MANAGER,HEAD OFFICE,
KAKKANAD, COCHIN - 682 030.
2.KERALA STATE CO-OPERATIVE BANK LTD.,
REPRESENTED BY THE GENERAL MANAGER, P.B. NO.3759,
CHITTOOR ROAD,PULLEPADY JUNCTION,PULLEPADY,KOCHI,KERALA - 682 035.
BY ADV.SRI. N.RAGHURAJ
RESPONDENTS/PETITTIONERS & RESPONDENTS 1,2 & 4 IN W.P.(C):
1.ANTONY.M.P.,AGED 61 YEARS,S/O. M.V PAULOSE,
SENIOR MANAGER (RETD.) PARAVUR EVENING BRANCH,
ERNAKULAM DISTRICT CO-OEPRATIVE BANK LTD.,
RESIDING AT MAZHUVANCHERY HOUSE, PATTANAM,
VADAKKEKARA P.O, NORTH PARAVUR - 683522.
2.RAJITHAKUMARI M.K.,AGED 60 YEARS, W/O.LATE RADHAKRISHNAN P.K,
EXECUTIVE OFFICER (RETD), HEAD OFFICE KAKKANAD,
ERNAKULAM DISTRICT CO-OEPRATIVE BANK LTD,
RESIDING AT GOKULAM,KANJIRAMATTOM P.O.,ERNAKULAM - 682 314.
P.T.O.
3.JOHN ABRAHAM,AGED 63 YEARS,S/O. ABRAHAM,
SENIOR BRANCH MANAGER (RETD), SERVICE BRANCH,
ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD,,
RESIDING AT KARUKAPPILLY HOUSE,KATHRIKADAVU,KALOOR,KOCHI - 682 017.
4.STATE OF KERALA,REPRESENTED BY ITS SECRETARY
TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
5.JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CIVIL LANE,
KAKKANAD, COCHIN - 682 030.
6.LIFE INSURANCE CORPORATION OF INDIA,
REPRESENTED BY ITS DIVISIONAL MANAGER,
PENSION GRATUITY SCHEME DEPARTMENT,
JEEVAN PRAKASH, M.G. ROAD, COCHIN - 682 011.
BY ADV.SMT.REKHA VASUDEVAN FOR R1 TO R3
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation and implementation of the judgment dated 31.08.2021
in W.P.(C)No.19297 of 2018, pending disposal of this writ appeal.
This Writ Appeal coming on for orders on 23/11/2021 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P1(A):TRUE COPY OF THE LETTER NO.HRD/200/A-390/
87-88 DATED 12.08.2014 ADDRESSED BY THE 3RD RESPONDENT TO THE
4TH RESPONDENT IN RESPECT OF THE 1ST PETITIONER.
EXT.P1(B):TRUE COPY OF THE LETTER NO.HRD/200/A/390-
87-88 DATED 13.1.2016 ADDRESSED BY THE 3RD RESPONDENT TO THE
4TH RESPONDENT IN RESPECT OF THE 2ND PETITIONER.
EXT.P1(C):TRUE COPY OF THE LETTER NO.HRRD/200/A-390/
87-88 DATED 13-08-2012 ADDRESSED BY THE 3RD RESPONDENT
TO THE 4TH RESPONDENT IN RESPECT OF THE 3RD PETITIONER.
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ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
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WA No.1535 of 2021
[Arising out of the judgment dated 31.8.2021 in W.P.(C).No. 19297/2018]
==================
Dated this the 23rd day of November, 2021
ORDER
One of the main grounds of the appellant employer co-operative society is the one pinpointed at Ground "E" on page 5 of the memorandum of the writ appeal, wherein it is averred that there is no illegality in the appellants retaining the amounts received from the LIC in excess of the amounts liable to be disbursed to the employees and that as per the law, then in existence, the maximum amount that could be disbursed to an employee of the co-operative society as gratuity on his retirement from service was restricted to Rs.10 lakhs and that the said maximum amount has already been disbursed, etc.
2. From the abovesaid pleading, it appears that one can infer that the applicant co-operative society employer may be admitting that, as a matter of fact, they have received amount from the LIC higher than the ceiling limit of Rs.10 lakhs prescribed as per the provisions of the Central Payment of Gratuity Act, etc. and the other norms, if any, and the said amounts have been appropriated by them, which is a legally permissible course of action and that the contra- legal position rendered by the Full Bench of this Court in the WA 1535/2021 - : 2 :-
judgment in the case in Chandrasekharan Nair.G. & Ors. Kerala State Co-operative Agricultural Rural Development Bank Ltd. & Ors. [ 2017 (5) KHC 15 = 2017 (4) KLT 276] and that the Full Bench decision rendered on 18.9.2017. Whereas the writ petitioners have all retired from service on 31.8.2014, 21.1.2016 and 31.8.2012 respectively and that they are "Fence Sitters" and the amounts due to them in terms of the legal position governed the matter at the time of their retirements have duly been disbursed to them, etc.
3. The appellant co-operative society will file an affidavit stating as to the exact amounts received by them from the LIC in relation to the gratuity account of the three writ petitioners herein and whether it was higher than the ceiling limit of the gratuity as per the norms at that point of time and whether the amount received from the LIC was higher than the said ceiling limit and if so, whether the appellant co-operative society has appropriated that amount as was then permitted by the circular of the Registrar of Co-operative Societies, etc. However, the abovesaid argument raised on behalf of the co-operative society as if the legal position declared by this Court at the time of the retirement of the writ petitioners, was as suggested WA 1535/2021 - : 3 :-
by the appellants as above, may not be fully correct, inasmuch as following aspects have been brought to the notice of this Court that:
4. This Court in the judgment rendered on 16.5.2005 in the case in Retnavalli v. Ambalapadu Service Co-operative Bank Ltd. [2005 (3) KLT 320], wherein this Court has held in para 16 thereof that the amount payable as per the LIC policy is the amount belonging to the employee and that co-operative society employer has no legal or moral right to withhold any part of it merely citing Rule 59 of the Kerala Co-operative Societies Rules or the limit prescribed by the Central Payment of the Gratuity Act, 1972 and that in the result, the co-operative society employer is legally bound to pass on the entire amount paid by the LIC pursuant to policy arrangement with the employer in respect of the gratuity liability of the society towards each employee, taken over by the LIC in full, without withholding any amount therefrom, even if it is in excess of the amount prescribed as per Rule 59 or the bye-laws of the society or in terms of the provisions contained in the Central Payment of Gratuity Act, 1972, etc.
5. In that regard, Smt.Rekha Vasudevan, learned counsel appearing for the contesting respondents/writ petitioners would WA 1535/2021 - : 4 :-
point out that the said figures paid by the LIC to the appellant co-operative society are clearly mentioned in Ext.P-1 series of documents produced in W.P.(C)., which would show that the said amounts are much higher than the then prescribed ceiling limit of Rs. 10 lakhs.
6. Yet another judgment has also been brought to our notice which is the one rendered by this Court on 24.5.2006 in W.P.(C).No. 10522/2006, wherein this Court has inter alia also noted that the provisions in the then existing circular issued by the Registrar of Co- operative Societies permitting the co-operative society employer to enjoy the appropriate excess amount paid by the LIC over and above the ceiling limit are illegal and that have been quashed by this Court, etc.
7. Both sides will address this Court as to the applicability of the dictum laid down by this Court in the aforecited judgments as well as the Full Bench judgment to the facts and circumstances of this case. So also, both sides will bring to this Court's notice the various decisions rendered by the Division Bench of this Court since 2010 onwards, etc.
8. The respondent LIC will also file an affidavit stating as to WA 1535/2021 - : 5 :-
the exact and precise amounts paid by them to the appellant co- operative society in respect of the gratuity accounts of the 3 writ petitioners and whether the said amount was higher than the then prescribed ceiling limit, etc. The appellant co-operative society and the respondent LIC of India will file their respective affidavits within 10 days' time.
The Registry of this Court will place on record copy of the judgment of this Court in Retnavalli's case supra [2005 (3) KLT 320] as well as the judgment rendered on 24.5..2006 in W.P.(C).No. 10522/2006 in this case file for the perusal of this Court.
List on 13.12.2021.
H/O. Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
VIJU ABRAHAM, JUDGE sdk+ 23-11-2021 /True Copy/ Assistant Registrar