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K. Gopakumaran Nair v. State Of Kerala And Ors

K. Gopakumaran Nair v. State Of Kerala And Ors

(High Court Of Kerala)

WP(C) NO. 12297 OF 2023 | 15-11-2023

Raja Vijayaraghavan V., J.

1. The petitioner is a former employee of the Thiruvananthapuram Service Co-operative Bank Ltd. No. T-131-4th respondent herein. He has approached this Court challenging Ext.P9 order issued by the fifth respondent, declining his request to quantify the amount due from the petitioner for inclusion in the Provident Fund Scheme and for incidental reliefs.

2. The short facts are as under:

a. The petitioner joined the service of the fourth respondent as a clerk in the year 1974. Disciplinary proceedings were initiated, and he was dismissed from service with effect from 25.09.1982. The petitioner raised an industrial dispute, which was considered by the Labour Court, Kollam, and by award dated 19.12.1987 in I.D. No. 15/1984 orders were issued setting aside the order of dismissal dated 25.09.1982, and the fourth respondent was ordered to reinstate the petitioner in service with all back wages, continuity of service, and other consequential benefits. The Bank challenged the orders, albeit unsuccessfully, up to the Hon'ble Supreme Court. However, the matter was thus given a quietus when the SLP was dismissed by the Apex Court.

3. The petitioner, in the said circumstances, filed O.P. No. 6459 of 2000 before this Court when the Bank failed to implement the award. This Court, by judgment dated 8.8.2001 issued directions to the 4th respondent to permit the petitioner to join the service as a Clerk within one month and further directions were issued to consider the consequential promotion, annual increment and other benefits as if he was working in the Bank without a break. The petitioner thus rejoined the service on 1.9.2001.

4. Thereafter, he preferred CP No. 62/99 before the Labour Court, claiming arrears of back wages. An award was passed directing the Bank to pay a sum of Rs. 65,411/-being the bonus amount due to the petitioner, and the Bank was further directed to pay bonus for the future till his reinstatement.

5. Being aggrieved by the award passed by the Labour Court, the petitioner approached this Court and filed O.P No. 16242 of 2002. This Court by Ext.P3 judgment dated 29.11.2006, quashed the order and remanded the matter back to the Labour Court for fresh disposal. However, while disposing of the matter, it was held that the petitioner would be entitled to all promotions till the date of his reinstatement. The Labour Court was further directed to ascertain the arrears of salary due to the petitioner consequent to the promotion and to compute the said amount. The parties were permitted to let in evidence as well.

6. The petitioner asserts that during the period that the petitioner was out of service, the respondent has not remitted any contributions to the 5th respondent, though he was paid back wages. He asserts that due to the non-payment of contributions, the petitioner is receiving only a meager amount by way of pension. He asserts that he has been served with Ext.P4 letter issued by the 2nd respondent that they had decided to grant pensionary benefits with retrospective effect and they have already requested the 5th respondent to intimate the arrears of contribution. However, no action was taken by the 4th respondent.

7. The petitioner asserts that when no action was taken, he approached this Court and preferred W.P(C) No. 16176 of 2022 and by Ext.P6 judgment, this Court directed the petitioner as well as the 4th respondent to appear before the 5th respondent and complete the proceedings under clause 35 of the Kerala Co-operative Societies Pension Scheme. It was further ordered that if any additional contribution is to be remitted by the Bank, the same had to be intimated, and if the same is not acceded to, necessary action as contemplated under Clause 38 of the Pension Scheme was ordered to be initiated for recovery of the amount.

8. According to the petitioner, in tune with the directions issued by this Court, the petitioner approached the 5th respondent and produced the records to substantiate his claims. However, his claim was rejected by the 5th respondent by Ext.P7 order on the ground that the contribution had not been collected on or before May 2002.

9. The said order was challenged by the petitioner before this Court, and by Ext.P8 judgment, this Court set aside the order, and directions were issued to the Board to reconsider the matter. This Court observed that the award passed by the Labour Court, having been confirmed by the Supreme Court, and having been reinstated with back wages, continuity of service, and consequential benefits, the petitioner ought to have been enrolled in the Pension Scheme, particularly when it was mandatory for the Societies to enroll their employees.

10. The petitioner asserts that the 5th respondent, without considering the directives issued by this Court, rejected the request made by the petitioner by Ext.P9 order. The said order is under challenge in this Writ Petition.

11. A counter affidavit has been filed by the fourth respondent wherein it is stated that the petitioner has been terminated from service on 25.09.1982 and he was reinstated in service with retrospective on 01.09.2021 in terms of Ext.P1 order. It is stated that all service benefits, including due promotions, were given to the petitioner, and he has retired from service as of 31.05.2009. It is further stated that the petitioner's EPF account was commenced in March 2002, and a sum of Rs. 2,23,948 was remitted to the PF account. It is further stated that the records available with the fourth respondent would disclose that the petitioner has not joined the EPF Scheme while he was in service, though he was the Secretary-in-charge during the period. In the said circumstances, no contribution was remitted in the said Scheme to enable the petitioner to secure EPF pension or later opt for the Co-operative Employee Pension Scheme. Only after his reinstatement in service did the petitioner get himself enrolled in the Co-operative Employee Pension Scheme, which came into force on 03.06.1993. It is further stated that Ext.P1 award has been complied with by the bank, and all the benefits, including back wages and promotion, were granted. After the reinstatement of the petitioner, he was enrolled in the Co-operative Employee Pension Scheme, and contributions have been remitted so that the petitioner receives the monthly pension.

12. In the affidavit filed by the fifth respondent, it is stated that the fourth respondent and its employees have been included as members of the Self-Financing Pension Scheme. It is on the basis of the application filed by the fourth respondent, the pension document in the petitioner's name has been issued. As per the service records of the petitioner, the petitioner had joined the Provident Fund only in 05/2002 after the reinstatement of his service. His qualifying service was calculated as 93 months, and an eligible monthly pension was arrived at. It is further stated that the Secretary of the fourth respondent was directed to produce the relevant records, and it was found that as per the PF ledger, the commencement of the PF of the petitioner was recorded as 05/2002. It is further stated though the petitioner has raised a claim that he was enrolled in the PF Scheme from 2002, he has failed to produce any such records. It is further stated that by virtue of Clause 19(1) of the Pension Scheme, the qualifying service for the grant of pension in the case of an employee who was in service of a Society on the date of application of the Pension Scheme to the Society is the length of service commencing from the date of joining the contributory provident fund. As the petitioner joined the provident fund only in 2002, the pension board can disburse the pension from the day on which he joined the Scheme.

13. Sri. Mohammed Al Rafi S., the learned counsel appearing for the petitioner, submits that all that has been stated in Ext.P9 is that the petitioner had failed to produce any record to substantiate that he was included in the PF Scheme 1982 onwards. The learned counsel would refer to Clause 18 of the Co-operative Societies Employees Pension Scheme, and it is argued that as per the provisions of the Scheme, every employee of the Society to which the Scheme 1994 applies is eligible for pension under the Scheme. The learned counsel submits by referring to Clause 39 1(a) of the Scheme that the 4th respondent was bound to transfer the portion of the employee's contribution with interest accrued thereon standing to the credit of the employees in the Contributory Provident Fund established by the Society that too within a period of one year from 14.03.1995, which is the date of implementation of the Pension Scheme. It is submitted that failure of the fourth respondent to transfer the amount would make them liable to pay interest at the rate of 24% per annum. According to the learned counsel, the petitioner had to initiate numerous proceedings, and it was by award dated 19.12.1987 that reinstatement was ordered. It is submitted that if that be the case, as and when the provision of the Scheme came into force, it was the duty of the fourth respondent to enroll the petitioner in the Scheme and to pay the contributions, if any. It is pointed out that it was only in 2002 when the petitioner was reinstated in service, that the petitioner was enrolled. The learned counsel submits at any rate, the petitioner was liable to be enrolled at least from the date of commencement of the Scheme in 1994.

14. Sri. Sajeev, the learned counsel appearing for the fourth respondent, submitted that the petitioner herein was the Secretary-in-charge of the Society. Though all other employees of the Society were included in the Provident Fund Scheme, he never chose to enroll himself. It is further submitted that the petitioner had no case at the time of retirement that he was to be enrolled in the Scheme from 1982 onwards. Furthermore, he would refer to the order passed by the fifth respondent and it was submitted that the petitioner was unable to produce any document to substantiate that he was enrolled in the Provident Fund Scheme from 1982.

15. Sri. M.Sasindran, the learned counsel appearing for the fifth respondent, would point out that though the fifth respondent has nothing against the employee, the fact remains that the petitioner was enrolled in the Scheme only from 2002 onwards. According to the learned counsel, in terms of the provisions of the Scheme, the Society is mandatorily bound to enroll its members from the date of commencement of the Scheme. Only if the employee has been enrolled and the contributions are remitted the fifth respondent is bound to disburse the pensionary benefits in terms of the provisions. The learned counsel would further submit insofar as the Clause 18 and 39(1)(a) relied on by the learned counsel appearing for the petitioner is concerned, the same would have no application as the petitioner herein was not a person enrolled in Provident Fund.

16. I have considered the submissions advanced and perused the records.

17. I find that the petitioner's grievance concerns his non-enrolment in the Pension Scheme from the date of reinstatement, which is on 25.9.1982. There is no case for the petitioner that he was enrolled in the Provident Fund during the time that he was in service. However, the fact remains that the Co-operative Societies Employees Pension Scheme, 1994 came into force with effect from 14.03.1995. As per the provisions of the Scheme, every employee of the Society to which the Scheme applies is eligible for pension. Admittedly, the petitioner was reinstated in the Society only on 1.9.2001 despite the fact that the Labour Court by award dated 19.12.1987 had set aside the order of dismissal dated 25.9.1982 and ordered the reinstatement of the petitioner with all backwages, continuity of service, and other consequential benefits.

18. The records disclose that the petitioner was permitted to rejoin the service only on 1.9.2001. This is despite the fact that the Labour Court had set aside the order of dismissal on 19.12.1987 and the challenge raised against the said order was repelled finally by the Supreme Court. The Kerala Co-operative Societies Employees Self Financing Pension Scheme came into force with effect from 14.3.1994. In terms of Section 18 of the Scheme, every employee of the society to which the scheme would apply is eligible for pension under the scheme. It is undisputed that the society was a member of the scheme from the date of commencement itself. As per Section 39, on and from the date of application of the scheme to society, the portion of employees contribution with interest accrued thereon standing to the credit of the employees in the Contributory Provident Fund established by the Society is to be transferred and remitted by the society to the Pension Fund under the Scheme. As the petitioner was not enrolled in the Employees Provident Fund, the amount standing could not be transferred to the pension fund under the scheme.

19. Now, the question is whether directions can be issued to the 4th respondent to make necessary corrections in the service records to enable the petitioner to get the benefits of the Scheme in view of the orders granted in his favor by the Labour Court. In the instant case, the Labour Court has ordered reinstatement with back wages, consequential benefits, and continuity of service. In Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (2013) 10 SCC 324, [LQ/SC/2013/879] it was held that there is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the entire benefits. It was further held that the observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [ (2007) 2 SCC 433] [LQ/SC/2007/114] that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80, [LQ/SC/1978/235] [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, [(1980) 4 SCC 443] [LQ/SC/1980/407] and cannot be treated as good law. It was held that that part of the judgment is also against the very concept of reinstatement of an employee/workman.

20. In view of the order passed by the Labour Court and the principles enunciated above by the Hon'ble Supreme Court, the 4th respondent was bound to include the petitioner in the Scheme as and when it came into force. If that be the case, going by Section 39 of the Scheme, if any society fails to transfer the employee's contribution with interest accrued thereon after the commencement of Section 18(a) of the Kerala Co-operative Societies Act, 1969 and the Scheme 1994 within a period of one year from 14.3.1994, the date of implementation of the scheme, the society shall be liable to transfer such amount or part thereof as the case may be with interest at the rate of 24% per annum. The proviso to Clause (b) of Section 39 provides that in respect of persons retired from societies enrolled under the EPF Scheme and who are not drawing pension from the EPF hitherto, the societies concerned shall remit the pension fund with interest at the rate existing in the EPF scheme during the period of their service upto the date of retirement.

21. Drawing the analogy from the above provision and in the peculiar facts and circumstances, I am of the considered opinion that the petitioner have made out a case for issuance of direction to the 4th respondent Bank to notionally fix the date of joining of the petitioner as the date of commencement of the scheme and remit the Employer's pension contribution insofar as the petitioner is concerned from 14.3.1995 to 5/2002. In order to give effect to the above, directions can be issued to the 4th respondent to modify the service record of the petitioner so that the benefit of the employees Self Financing Pension Scheme can be extended to him with effect from 14.3.1995. In that view of the matter, this writ petition is disposed of by issuing the following directions.

a) Within a period of two months from today, the 4th respondent shall make necessary modifications in the service record of the petitioner to enable him to get the benefits of the Pension Scheme, 1994 from 14.3.1995, the date of commencement of the Scheme.

b) After making necessary modifications, the modified service record along with the requisite application seeking inclusion of the petitioner in the Scheme of 1994 with effect from 14.3.1995 shall be forwarded to the 5th respondent for the purpose of verification and to compute the contribution together with interest as per the Scheme. The above exercise shall be carried out within the above period of two months.

c) On receipt of the service record and the requisition from the 4th respondent, the 5th respondent shall compute the contribution together with statutory interest and intimate the 4th respondent the quantum of amount that is required to be paid in terms of the Scheme. The above exercise shall be carried out within a period of one month.

d) On receipt of the intimation from the 5th respondent, the 4th respondent shall transfer the contribution amount toward EPF together with interest within a period of one month.

e) It is made clear that it would be open to the 5th respondent to initiate appropriate proceedings under clause 38 of the Scheme to give effect to the orders above, if the situation so warrants.

Advocate List

  • S. MOHAMMED AL RAFI THAJUNA MARIA FRANCIS

  • SRI. M SASINDRAN, SC FOR KERALA STATE COOPERATIVE EMPLOYEES PENSION BOARD SRI. D SAJEEV , SERVICE CO-OPERATIVE BANK LIGEY ANTONY

Bench
  • HON'BLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
Eq Citations
  • 2023/KER/72011
  • LQ/KerHC/2023/2872
Head Note

Pension — Co-operative Societies Employees Self Financing Pension Scheme, 1994 — Inclusion of period of absence while quantifying pension — Held, petitioner was not enrolled in Provident Fund during the period of service — Not a member of the Scheme, 1994 — Provisions of Section 18 and Section 39(1)(a) of the Scheme 1994 would have no application — Kerala Co-operative Societies Act, 1969, S. 18(a) and 39 , Cl. (a) and (b) (proviso) — Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994, Cl. 18 and 39(1)(a)\n(Paras 13, 15, 17, 18, 20 and 21)\nEmployee’s reinstatement — Consequential benefits — Continuity of service — Held, on reinstatement, employee/workman is entitled to continuity of service as well as consequential benefits — Observations in J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433, were held to be contrary to ratio of judgments of three-Judge Benches of this Court in Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 and Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 and against concept of reinstatement — Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others, (2013) 10 SCC 324, Foll.\n(Para 19)