Kerala High Court
Vallamkulam Service Co-Operative Bank ... vs The Registrar Of Co-Operative ... on 6 November, 2009
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY, THE 22ND DAY OF MAY 2012/1ST JYAISHTA 1934
WP(C).No. 8495 of 2010 (J)
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PETITIONER(S):
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VALLAMKULAM SERVICE CO-OPERATIVE BANK LTD.NO.2163,
VALLAMKULAM P.O., THIRUVALLA-689 541.
REPRESENTED BY ITS SECRETARY PRASANNAKUMAR P.
BY ADVS.SRI.P.V.BABY
SRI.R.KIRAN
RESPONDENT(S):
--------------
1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM.
2. THE KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD,
KALA NIVAS, T.C.NO.27/156 157,
CHINMAYA LANE, KUNNUMPURA,
NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-1.
R1 BY ADV.SMT.P.MAYA, GOVERNMENT PLEADR
R2 BY ADV.SRI.P.V.MOHANAN,SC,KERALA STATE CO-OPERATIVE
EMPLOYEES' PENSION BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
WP(C).No. 8495 of 2010 (J)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P 1: COPY OF THE DEMAND NOTICE DATED 06.11.2009 ISSUED BY
THE 2ND RESPONDENT TO THE PETITIONER.
EXT.P 2: COPY OF THE CALCULATIONS MADE BY THE 2ND RESPONDENT
TOWARDS PAYMENT PENSION FUND (16 NUMBERS).
EXT.P 3: COPY OF THE CIRCULAR NO.2/2009 ISSUED BY THE 2ND
RESPONDENT.
EXT.P 4: COPY OF THE STATEMENT DATED 30.11.2009 PREPARED BY THE
PETITIONER.
EXT.P 5: COPY OF THE INDIVIDUAL STATEMENTS (16 IN NUMBERS) IN
RESPECT OF THE EMPLOYEES PREPARED BY THE PETITIONER.
EXT.P 6: COPY OF THE LETTER DATED 30.11.2009 ISSUED BY THE
PETITIONER TO THE 2ND RESPONDENT.
EXT.P 7: COPY OF THE COMMUNICATION DATED 15.12.2009 ISSUED BY
THE 2ND RESPONDENT.
EXT.P 8: COPY OF THE DEMAND NOTICE DATED 09.12.2009 ISSUED BY
THE 2ND RESPONDENT TO THE PETITIONER.
EXT.P 9: COPY OF THE LETTER DATED 16.01.2010 SENT BY THE
PETITIONER TO THE 2ND RESPONDENT.
EXT.P 10: COPY OF THE RESOLUTION NO.260 DATED 15.01.2010 OF THE
BOARD OF DIRECTORS OF THE PETITIONER.
EXT.P 11: COPY OF THE COMMUNICATION DATED 29.01.2010 ISSUED BY
THE 2ND RESPONDENT TO THE PETITIONER.
RESPONDENT'S EXHIBITS - NIL
//TRUE COPY//
P.A TO JUDGE
DG
P.N.RAVINDRAN, J.
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WP(C)No. 8495 of 2010
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Dated this the 22nd day of May, 2012
J U D G M E N T
The petitioner is a co-operative society registered under the Kerala Co-operative Societies Act, 1969, herein after referred to as 'the Act' for short. After the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994, herein after referred to as the `Pension Scheme' for short, was introduced and brought into force, the petitioner bank which was maintaining a contributory provident fund remitted the employers' share of contribution standing in the contributory provident fund account together with interest at 12% per annum (Rs.4,18,579/-) with the Kerala State Co-operative Employees Pension Board, herein after referred to as 'the Pension Board' for short, on 23.2.2001 and submitted an application for allotment of code numbers to the petitioner society and its 9 employees. Later, after paragraph 39 was amended with effect from 4.2.2009 raising the rate of interest from 12% per annum to 24% per annum, the petitioner remitted the sum of Rs.87,020/- being the balance amount payable by way of interest with the Pension Board on 2.3.2005. Later, on 24.12.2005 the bank applied for allotment of code numbers for 7 more employees. After the Pension Scheme was introduced, the bank WP(C)No. 8495 of 2010 -2- was also remitting the employers share of contribution in accordance with paragraph 18 of the Pension Scheme with effect from February 2001 onwards.
2. While matters stood thus, the Secretary of the Pension Board issued Ext.P1 demand notice dated 6.11.2001 calling upon the petitioner society to remit the sum of Rs.7,89,770/- stated to be the arrears of contribution payable in terms of paragraph 39 (1A) read with paragraph 39 (1A) of the Pension Scheme. Along with Ext.P1 demand notice, Ext.P2 series calculation statements in respect of each of the 16 employees were also enclosed. The Pension Board had in the meanwhile issued Ext.P3 circular dated 12.2.2009, pursuant to GO(P) No.71/2009/Co-op whereby the Government directed the Pension Board to enable co-operative banks and societies which have not yet complied with paragraph 39 of the Pension Scheme to remit the employers' share of contribution together with accrued interest at the rate of 12% per annum even for the period after 4.2.1999. Though Ext.P3 circular was initially in force only till 31.7.2009, its validity was later extended till 30.11.2009. After the validity of Ext.P3 circular was extended till 30.11.2009, the petitioner society remitted the sum of Rs.1,52,821/- taking advantage of Ext.P3 circular and submitted Ext.P6 representation dated 30.11.2009 accompanied by Exts.P4 and P5 calculation statements and requested the Secretary of the Pension WP(C)No. 8495 of 2010 -3- Board to allot code number to its employees. Upon receipt of Ext.P6 letter and the accompanying papers, the Pension Board sent Ext.P7 letter dated 15.12.2009 stating that as per the statement, interest has been calculated only @ 12% instead of 24% for the period from February 2009. A calculation statement setting out the exact amount payable was enclosed along with Ext.P7 letter along with Ext.P8 demand notice dated 9.12.2012 demanding payment of the sum of Rs.4,18,403/- together with interest at 24% per annum from 1.1.2010. The petitioner society was called upon to remit the said amount within 14 days.
3. The Board of Directors of the petitioner bank that met on 15.1.2010 thereupon passed Ext.P10 resolution whereby it resolved to request the Pension Board to accept the calculation made by the bank and to allot code number to its employees. The said resolution was forwarded along with Ext.P9 letter dated 16.1.2010 to the Secretary of the Pension Board. The Pension Board thereupon sent Ext.P11 letter dated 29.1.2010 informing the petitioner that code numbers will be allotted only if the amount demanded in Ext.P7 letter dated 15.12.2009 and Ext.P8 demand notice dated 9.12.2009 is remitted. The instant writ petition was thereupon filed challenging Exts.P7, P8 and P11 and seeking the following reliefs:
i) Issue a writ of certiorari or other appropriate writ, order or direction, call for the records leading to Exts.P7, P8 and P11 and quash the same;WP(C)No. 8495 of 2010 -4-
ii) Declare that the petitioner Bank is entitled to get the benefit of Ext.P3 one time settlement scheme;
iii) Issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to grant the benefits of Exts.P3 one time settlement scheme to the petitioner Bank since the petitioner has applied with all the requirements mentioned in Ext.P3 scheme.
vi) Another writ of mandamus or other appropriate wit, order or direction, directing the 2nd respondent to allot code number to the petitioner co-operative Bank and its employees without any further delay.
4. The main contention raised by the petitioner is that as Ext.P3 One Time Settlement Scheme was in force up to 30.11.2009 and under that scheme the petitioner society was liable to pay only 12% interest on the amount in arrears as the petitioner have had remitted the arrears together with interest calculated at the aforesaid rate, the Pension Board ought to have accepted the remittance made by the petitioner bank and allotted code number to its members. It is contended that Ext.P11 communication runs counter to the stipulations in Ext.P3 circular. The Pension Board has filed a counter affidavit dated 14.11.2010. In paragraph 5 it is conceded that Ext.P3 circular was in force during the period from 1.2.2009 to 30.11.2009 and that during that period pension fund dues from February 1999 onwards can be settled by paying 12% interest along with the amount of arrears instead of interest @ 24% per annum. In paragraph 6 it is stated that as the petitioner bank had remitted the pension fund contribution from 2001 onwards, the amounts remitted by it before 1.2.2005 cannot be recalculated at 12% interest. In paragraph 7 of WP(C)No. 8495 of 2010 -5- the counter affidavit it is stated that after giving credit to the sum of Rs.6,54,075/- remitted by the society till 30.11.2009, the society was liable to be remit a further sum of Rs.4,18,403/-, as on 31.12.2001. In paragraph 5 it is stated that the full benefit of the One Time Settlement Scheme will be available only to those societies which have not remitted any pension fund contribution from February 2009 onwards, that the petitioner society has remitted pension fund contribution in respect of its employees till February 2001 and that the Pension Board has calculated the interest only at the rate of 12% per annum from March 2005. The counter affidavit proceeds to state that the Pension Board will allot code numbers to the society and its employees only after the entire pension fund is remitted in terms of the demand notice.
5. I heard Sri. P.V.Baby, learned counsel appearing for the petitioner, Smt.P.Maya learned Government Pleader appearing for the first respondent and Sri.K.R.Sunil, learned counsel appearing for the Pension Board. Sri.P.V. Baby, learned counsel appearing for the petitioner contended that as the petitioner society had not cleared the entire amount outstanding and payable by it in terms of the stipulations contained in paragraph 39 of the Scheme before 1.2.2009, it is entitled to rely on Ext.P3 circular and pay the amount outstanding by calculating interest only at 12% per annum from 4.2.1999 instead WP(C)No. 8495 of 2010 -6- of at 24% per annum as stipulated in paragraph 39(1A) of the Pension Scheme. The learned counsel contended that the stand taken by the Pension Board in Ext.P7 letter and the counter affidavit runs counter to the stipulations in Ext.P3 circular which in turn was issued pursuant to a Government order and therefore, as the Pension Board has no case that the amount paid by the petitioner is not in terms of Ext.P3 circular or that any further amount is due even if Ext.P3 circular is given effect to, the petitioner society is entitled to the reliefs prayed for. Per contra, the learned standing counsel appearing for the Pension Board submitted with reference to the stipulation in direction No.3 issued by the Pension Board in Ext.P3 circular that as the petitioner society had remitted a portion of the amount payable by it in terms of paragraph 39 (1A) of the Pension Scheme, it is not entitled to have the amount of contribution payable by it re-determined applying the lower rate of interest at 12% per annum even in respect of the period from 4.2.1999 onwards. The learned counsel appearing for the Pension Board contended that the benefit of One Time Settlement Scheme is available only to those societies which have not paid any amount and therefore the stand taken by the respondents does not merit interference.
6. I have considered the submissions made at the Bar by learned counsel appearing on either side. Shorn of details, the short WP(C)No. 8495 of 2010 -7- question that arises for consideration in this writ petition is whether the benefit of Ext.P3 circular is available to the petitioner society. While the petitioner society contends that it is entitled to the benefit of Ext.P3 circular, the stand taken by the Pension Board is that as the petitioner society had remitted a sizable portion of the amount payable by it in terms of paragraph 39 of the Pension Scheme, it is not entitled to waiver of interest. The relevant portion of Ext.P3 circular reads as follows:
" 2/2009
24% 12%
.
1. 1.2.2009 31.7.2009 .
2. 1.2.1999
12%
.
3.
.
4. 6
,
, ,
.
.
5.
.
.
WP(C)No. 8495 of 2010 -8-
.
1. 01.02.2009- - ,
,
, 24%
,
.
2.
.
24% .
3. 01.02.2009-
.
.
.
.
.
. .
IV,
, IV-
O.T.S. .
.
It is evident from the stipulations extracted above that societies which have not remitted any amount and societies against which revenue recovery proceedings have been initiated are entitled to take advantage of the circular. It is also stipulated that cases in which the accounts have been settled prior to 1.2.2009, cannot be reopened. It is not in dispute that the petitioner is a society which has not remitted WP(C)No. 8495 of 2010 -9- the entire amount of contribution payable in terms of paragraph 39 of the Pension Scheme. After Ext.P3 circular was issued, Ext.P1 notice dated 6.11.2009 was issued demanding payment of the sum of Rs.7,89,778/- together with interest at 24% per annum from 1.12.2009. It is evident from Ext.P11 notice that after the date of Ext.P3 circular and during its validity which ended on 30.11.2009, large amounts were due from the society. The petitioner society is thus a society which was liable to pay money to the Pension Board. It cannot therefore be said that the amount payable by the petitioner society in terms of paragraph 39 of the Pension Scheme had been paid in full before 1.2.2000. If that be so, direction No.3 in Ext.P3 extracted above can have no application to the case on hand. Apart from stating that the petitioner had made part payments and therefore it is not entitled to the benefits of Ext.P3 circular, the Pension Board has no case that the amount remitted by the petitioner does not represent the actual amount payable by the petitioner society even applying Ext.P3 circular. This is evident from the stand taken by the Pension Board in its counter affidavit. In such circumstances, it has to be necessarily held that the stand taken by the Pension Board in Exts.P7 and P11 letters and in Ext.P8 demand notice cannot be sustained. That apart it is also not in dispute that after the writ petition was filed, the Pension Board has allotted code number to the employees of the petitioner WP(C)No. 8495 of 2010 -10- society. It is also not in dispute that proportionate pension is also being disbursed to former employees of the society. In such circumstances, I am of the opinion that the petitioner is entitled to succeed.
I accordingly allow the writ petition, quash Exts.P7 and P11 letters and Ext.P8 demand notice and direct the second respondent to regularize the allotment of code numbers to the petitioner society and its employees and to disburse full pension to the former employees of the Pension Board on the basis that no amount is due from the petitioner society by way of arrears of contribution payable under paragraph 39 of the Pension Scheme.
Sd/-
P.N.RAVINDRAN, JUDGE.
Rkc // true copy// PA to Judge