Kerala High Court
Kottangal Service Co-Operative Bank ... vs State Of Kerala on 4 April, 2022
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
TH
MONDAY, THE 4 DAY OF APRIL 2022 / 14TH CHAITHRA, 1944
WA NO. 341 OF 2022
AGAINST THE JUDGMENT DATED 16.11.2021 IN WP(C)NO.12630/2021 OF
HIGH COURT OF KERALA
APPELLANT/PETITIONER:
KOTTANGAL SERVICE CO-OPERATIVE BANK LTD NO.3680
CHUNGAPPARA P. O., MALLAPPALLY,
PATHANAMTHITTA DISTRICT, PIN - 686 547,
REPRESENTED BY ITS SECRETARY-IN-CHARGE.
BY ADVS.
T.R.HARIKUMAR
ARJUN RAGHAVAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,REPRESENTED BY ITS SECRETARY,
CO-OPERATIVE DEPARTMENT, GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE
SOCIETIES (DISTRICT),4TH FLOOR, MINI CIVIL STATION,
PATHANAMTHITTA - 689 645.
3 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM - 695 001.
4 MATHEW BEN O. G. JACOB
S/O. P. M. CHACKO, PANAMTHOTTATHIL HOUSE,
KOTTANGAL P. O., PATHANAMTHITTA - 686 547.
R4 BY ADVS.SRI.SHAJI THOMAS & JEN JAISON
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.341 of 2022 2
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
.................................................................
W.A. No. 341 of 2022
[Arising out of the judgment dated 16.11.2021 in W.P.(C) No.12630 of 2021]
.................................................................
Dated this the 4th day of April, 2022
JUDGMENT
Viju Abraham, J.
The above appeal is filed by the petitioner in W.P.(C) No. 12630 of 2021 aggrieved by the judgment dated 16.11.2021.
2. The facts leading to the above appeal are as follows:
The appellant is a service co-operative bank that is facing severe financial difficulties. The 4th respondent entered the service of the appellant bank on 06.07.1987 in the post of salesman/attender. The second higher grade due to the 4th respondent could not be given due to the bad financial condition of the appellant bank. The further request of the 4th respondent for getting enrolled in the Co-operative Societies Employees Self Financing Pension Scheme 1994 was also not granted as the said scheme could not be implemented in the appellant bank due to financial constraints. As per Exhibit P4 judgment in W.P.(C) No.22000 of 2019 filed by the 4 th respondent, the request made by the 4th respondent for higher grade, promotion and inclusion in the pension scheme was considered by the 2 nd WA No.341 of 2022 3 respondent as per Exhibit P5 order dated 25.01.2020 by directing the appellant to grant the eligible grade, promotion and also to include him in the pension scheme on or before 31.03.2020. Exhibit P6 revision petition dated 11.06.2020 was filed by the appellant before the Government challenging Exhibit P5 order of the 2 nd respondent and pursuant to the directions in Exhibit P7 judgment dated 05.11.2020 in W.P.(C) No.19871 of 2020 filed by the 4 th respondent, Exhibit P6 revision petition was considered and rejected by the 1st respondent as per Exhibit P8 order dated 09.04.2021 with a specific direction to implement Exhibit P5 order before the date of retirement of the 4 th respondent. It is aggrieved by the issuance of Exhibits P5 and P8 orders that the appellant/petitioner filed W.P.(C) No.12630 of 2021 and after considering the rival contentions at length, the same was dismissed by the learned Single Judge as per order dated 16.11.2021.
3. Assailing the said order of the learned Single Judge, the learned counsel appearing for the appellant mainly contended that the Registrar has no power to decide on an issue like the one in the present case as only the Co-operative Arbitration Court has the power to try and resolve the same. In support of the said contention, petitioner relies on the judgment in Raveendran P.S. v. State of Kerala, ILR 2007 (3) Ker 241 and General WA No.341 of 2022 4 Manager, Thalassery Co-operative Rural Bank Ltd. v. C. Mukundan, ILR 2021 (1) Ker 718 and submitted that as the issue involved in the present case is regarding payment of monetary benefits in connection with the service of the 4 th respondent, the proper remedy is to approach the Co-operative Arbitration Court. In the counter affidavit filed by the 4th respondent, it is contended that the appellant bank has started the Contributory Provident Fund ("CPF", for short) in July 1991 and bank is remitting the employees' contribution to the CPF every month after deducting the employees' contribution. The 4th respondent submitted a representation dated 07.02.2007 before the Secretary and Managing Committee of the appellant bank requesting them to join the Co-operative Societies Employees' Pension Scheme 1994 (hereinafter referred to as "Pension Scheme") and to transfer the amount accumulated in the CPF account along with arrears, to the pension fund maintained by the Kerala State Co-operative Employees' Pension Board. It is due to inaction on the part of the appellant bank that further, Exhibit R4(c) petition dated 01.10.2012 was filed before the 2 nd respondent, the Joint Registrar of Co-operative Societies, Pathanamthitta seeking a direction to the Secretary and Managing Committee of the appellant bank to take steps to join the pension scheme and to transfer the amount accumulated in the CPF account of the 4 th WA No.341 of 2022 5 respondent to the pension fund of the Kerala State Co-operative Employees Pension Board and also to grant other benefits like grade, etc. As no action was taken in this regard, the 4 th respondent approached this Court filing W.P.(C) No.2514 of 2012 which was disposed of as per judgment dated 06.11.2012 directing the Registrar to consider and pass orders on the representation submitted by the 4th respondent and in obedience to the directions contained therein Exhibit R4(d) order dated 17.07.2013 was issued by the 2nd respondent directing the Secretary and Managing Committee of the appellant bank to take steps to join the pension scheme and to transfer the amount accumulated in the CPF account of the 4 th respondent to the pension fund of the Kerala State Co-operative Employees' Pension Board and also to grant other benefits like pay revision benefits, etc. In spite of the said direction, the appellant bank did not comply with the same and therefore, a further petition dated 01.09.2018 was submitted before the 2nd respondent and the 2nd respondent as per Exhibit R4(e) order directed the appellant to enroll the 4th respondent in the pension scheme. Even thereafter the directions were not complied with and the 4 th respondent filed W.P. (C) No.22000 of 2019 and as per the direction in Exhibit P4 judgment dated 14.11.2019, direction was issued as per Exhibit P5 order directing the Secretary and Managing Committee of the WA No.341 of 2022 6 appellant bank to grant the benefits of grade, promotion, etc, and to enroll him in the pension scheme and transfer the amount accumulated, along with arrears and interest to the pension board. It is challenging the said direction in Exhibit P5 order that Exhibit P6 revision petition was filed before the Government and consequent to the direction issued by this Court in Exhibit P7 judgment dated 05.11.2020 in W.P.(C) No. 19871 of 2020 the same was considered and rejected as per Exhibit P8 order dated 09.04.2021.
4. The contention taken by the appellant in the present appeal is that as per Section 69 of the Kerala Co-operative Societies Act, 1969, (hereinafter referred to as "the Act") the issue agitated could be decided only by the Co-operative Arbitration Court and not the Registrar in as much the same relates to the claim of benefit arising out of service rendered by the 4th respondent. It is pertinent to note that such a contention was never taken in the writ proceedings. Further that the appellant bank also did not treat Exhibit P5 order as having passed without jurisdiction in as much as they have filed Exhibit P6 revision petition under Section 87 of the Act. Nowhere in the revision petition or in the writ petition, such a contention was taken and the issue regarding maintainability is raised for the first time in the present writ appeal. A perusal of WA No.341 of 2022 7 Exhibit P8 as well as Exhibit R4(e) orders will clearly show that the directions were issued by the 2nd respondent exercising the power under Section 66A of the Act, which empowers the Registrar to issue directions to co-operative societies. Section 66A of the Act reads as follows:
"Section 66A. Powers of Registrar to give directions-
Subject to the provisions of the Act and the rules made thereunder the Registrar may issue general directions and guidelines to any or all of the co-operative societies in furtherance of the purposes of the Act or for implementing government policies for the benefit of the members and the general public."
Admittedly, Exhibit P7 revision petition is filed by the appellant bank in exercise of the powers under Section 87 of the Act and the relevant portion of the same reads as follows:
"Section 87.Powers of revision of Registrar and Government:-
(1)The Registrar may of his own motion or on application call for and examine the records of any officer subordinate to him not being an officer exercising the powers of the Registrar and the Government may of their own motion on an application call for and examine the records of the Registrar including any officer exercising the powers of the Registrar, in respect of any proceeding, not being a proceeding in respect of which an appeal to the Tribunal is provided by Sec.82, to satisfy himself or themselves as to the regularity of such proceedings, or the correctness, legality or propriety of any decision passed or order made thereon and if, in any case it appears to the Registrar or the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, he or they may pass orders accordingly:
........ ..........
(underline
supplied)
A reading of Section 87 makes it explicitly clear that the Government may on its own motion or on application call for an examine the records of the Registrar including any officer exercising the powers of the registrar, in respect of any proceedings, not being a WA No.341 of 2022 8 proceeding in respect of which an appeal to the Tribunal is provided under Section 82 of the Act. Therefore, even going by the conduct of the appellant bank in filing Exhibit P6 revision under Section 87 of the Act will clearly show that the proceedings initiated by the 2 nd respondent evidenced by Exhibit P5 order is not one coming under the purview of Section 69 to be decided by the Co-operative Arbitration Court and therefore the new contention now raised in this appeal relying on the judgments in Raveendran's case supra and Mukundan's case supra is devoid of any merits and is only to be rejected.
5. Section 66A of the Act gives ample power to the Registrar to issue general directions and guidelines to any or all of the Co-operative Societies in furtherance of the purposes of the Act. The grievance raised by the 4th respondent was essentially due to inaction on the part of the appellant bank in not enrolling him in the Co-operative Societies Employment Pension Scheme and transferring the amount already accumulated in the CPF to the pension fund and also seeking the monetary benefit of grant of higher grade, etc. Kerala Co-operative Societies Employees' Self Financing Pension Scheme 1994 was formulated as per the power conferred on the Government as per Section 80A of the Act. Clause 18 of the Pension Scheme, 1994 makes it eligible for every employee WA No.341 of 2022 9 of the society to which the scheme applies for pension under the scheme. Further Clause 39 of the scheme specifically mandates that it shall be the duty of every society to transfer the accumulated amount from the CPF Fund to the pension scheme and going by the mandate of Sub-Clause (1A) of Clause 39, in case the society fails to do so they are liable to transfer the amount with interest at the rate of 24%. It is also pertinent to note that as per G.O.(P) No.99/1995/Co-op. dated 16.06.1995, the Government has notified that the provisions of the Kerala Co-operative Societies Employees' Self Financing Pension Scheme 1994 shall apply to all primary co- operative societies in the Co-operative department which are not covered under the Employees' Provident Funds and Miscellaneous Provision Act 1952. Admittedly, the pension scheme 1994 is one notified by the Government in exercise of the powers conferred under Section 80A of the Kerala Co-operative Societies Act and all the primary co-operative societies are brought within the fold of the Scheme as per Government order dated 16.06.1995 which is referred above. Therefore, when a complaint is brought to the notice of the Registrar regarding any violation of the provisions of the Act, it is well within the power of the Registrar under Section 66A to issue necessary directions and guidelines to any or all of the Co- operative Societies and it is that what has been done as per Exhibit WA No.341 of 2022 10 P5. Therefore, the direction contained in Exhibit P5 is perfectly legal and valid [emphasis supplied].
6. Now what remains for consideration is whether the claim raised by the 4th respondent is legal and sustainable. As is seen from Ext.P5, the 4th respondent has already retired from service with effect from 31.05.2021, and that while in service, the employee's contribution to CPF was deducted from his salary and transferred to CPF. What has been requested by the 4th respondent is to enroll him in the new Kerala Co-operative Societies Employees Self Financing Pension Scheme 1994 and to transfer the contribution with interest standing to the credit of the employee in the CPF to the Kerala Co-operative Societies Employees' Self Financing Pension Scheme 1994 as mandated under Clause 39(1A) of the Co-operative Societies Employees' Pension Scheme, 1994. The other benefit sought for by the 4th respondent is regarding higher grade and payment of the amount due to him pursuant to the grant of higher grade. It is specifically found in Ext.P8 order passed by the 1st respondent Government that if the appellant bank had any grievance regarding the revision of salary and payment of emoluments due to the employee, etc. for the reason that the society is in serious financial difficulties, then they are duty-bound to make necessary applications before the Registrar and get exemption for WA No.341 of 2022 11 the same and that no steps were taken by the appellant bank to get any such exemption from the Registrar in this regard. Therefore, the grievances raised by the 4th respondent as regards the grant of benefits under the Kerala Co-operative Societies Employees' Self Financing Pension Scheme 1994 and also for disbursal of other service benefits is perfectly in accordance with law and the appellant bank is bound to extend the said benefit to the 4 th respondent. It is also pertinent to take note of Exhibit R4(a) Circular issued by the Registrar of Co-operative Societies by which direction was issued to the Co-operative Societies to pay the contribution to the Pension Fund without fail and the societies were informed that strict action will be taken in case of any default on the part of the Co-operative Societies. The said Circular bearing No.44/2012 dated 19.11.2012 was issued in implementation of the directions issued by the Division Bench of this Court in Sambasivan Nair v. Kerala State Co-operative Employees' Pension Board, 2012(3) KLT SN 129(C.No.134). Therefore, we of the opinion that the appellant is bound to comply with the directions in Exhibits P5 and P8 orders issued by the Joint Registrar and the Government respectively.
7. The learned Single Judge has considered all these aspects and has entered a finding that there is no reason to interfere WA No.341 of 2022 12 with Exhibits P5 and P8 orders. We do not find any reason to interfere with the well-considered decision rendered by the learned Single Judge. Therefore, the above Writ Appeal is without any merit and hence it is accordingly dismissed.
However, taking into consideration the request made by the appellant bank that they need some more time to implement the directions in Exts.P5 and P8, we deem it appropriate to grant three months time from the date of receipt of a copy of this judgment to implement the same.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
VIJU ABRAHAM, JUDGE cks