KESAVAN NAIR O.S. Vs. MOHAMMED FAISY

JUDGEMENT

(1.) THE petitioners herein are former employees of the Cherpulassery Service Co-operative Bank Ltd. They retired from service on 31.5.2008, 31.8.2008, 30.6.2009 and 31.1.2010 respectively. All of them had joined the Employees' Pension Scheme, 1995. Even before the petitioners retired from service, the State Government issued G.O. (MS)No.44/06/LBR dated 19.6.2006 exempting primary co-operative societies like the Cherpulassery Service Co-operative Bank Ltd. from the purview of the the Employees' Pension Scheme, 1995. However petitioners 1 and 2 were sanctioned and paid pension under the the Employees' Pension Scheme, 1995 till October 2010. The amount paid to them by way of pension was recovered by the Employees Provident Fund Organisation on the ground that the employer society stood exempted from the purview of the Employees Pension Scheme, 1995 by virtue of the Government order dated 19.6.2006 and also for the reason that the Regional Provident Fund Commissioner, Kozhikode had issued a circular dated 7.11.2008, to the effect that pension under the Employees' Pension Scheme, 1995 need not be paid to employees of co-operative societies who have retired from service after 30.6.2006. It was in view of these developments that the petitioners filed W.P.(C) No.29038 of 2011 seeking reliefs in regard to the payment of pension. In that writ petition they sought an interim order directing the Kerala State Co-operative Societies Employees Pension Board joined as the second respondent in the writ petition to pay to them proportionate pension. One of the reliefs sought in the writ petition was to declare that the proviso to paragraph 39(1)(b) of the Kerala Co-operative Employees Self Financing Pension Scheme, 1994 is illegal and unconstitutional.

(2.) BY the said proviso which was inserted with effect from 10.11.2010, it was stipulated that in the case of retired employees of co-operative societies who were enrolled under the Employees Provident Fund Scheme and who are not drawing pension from the Employees Provident Fund hitherto, the societies concerned shall remit the pension with interest at the rates existing in the Employees Provident Fund Scheme during the period of their service i.e. up to the date of retirement and that pension shall be payable under the Kerala Co-operative Employees Self Financing Pension Scheme, 1994 only from the succeeding month after the remittance of the entire portion of the employer's contribution to the pension fund. It is also stipulated that no arrears of pension shall be payable.

(3.) THE respondent, the Secretary of the Pension Board has sworn to an affidavit dated 28.9.2012. It is stated that proportionate pension was sanctioned and disbursed to the petitioners and others only with effect from 1.11.2010 for the reason that the proviso to clause (a) of paragraph 39(1) of the Co-operative Societies Pension Scheme empowering the Pension Board to pay pension proportionate to the fund remitted by the society was introduced in the scheme only with effect from 10.11.2010. It is also stated that in the instant case the employer bank remitted the contribution which it received from the Employees Provident Fund Organisation only on January 2010. It is stated that it was on account of the aforesaid fact that in the proceedings dated 17.2.2012, proportionate pension was sanctioned to the petitioners only with effect from 1.11.2010.