Kerala High Court
Rejina.C.T vs The Head Master, S.M.M.A.U.P. School on 1 February, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
W.P.(C)No.12290/2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 1ST DAY OF FEBRUARY 2024/12TH MAGHA, 1945
WP(C) NO. 12290 OF 2023
PETITIONER:
REJINA.C.T.
AGED 58 YEARS
RESIDING AT SRIPREKASH, KARUMALA,
KOZHIKODE-673612., PIN - 673612
BY ADV SRI JACOB ABRAHAM
RESPONDENTS:
1 THE HEADMASTER, S.M.M.A.U.P. SCHOOL
SIVAPURAM, KARUMALA, KOZHIKODE-673612.,
PIN - 673612
2 THE ASSISTANT EDUCATIONAL OFFICER
THE OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER,
BALUSSERY, KOZHIKODE-673612.,
PIN - 673612
3 SPECIAL DEPUTY TAHSILDAR (REVENUE RECOVERY)
OFFICE OF THE SPECIAL DEPUTY TAHSILDAR
(REVENUE RECOVERY), KALLAI ROAD,
KOZHIKODE-673002.
4 KERALA STATE FINANCIAL ENTERPRISES LTD
REPRESENTED BY ITS CHAIRMAN, BHADRATHA,
MUSEUM ROAD, THRISSUR-680020.
5 PANANGAD CO-OPERATIVE URBAN SOCIETY LTD
REPRESENTED BY ITS SECRETARY, BRANCH KINALOOR,
KOZHIKODE-673612.
6 BALUSSERY CO-OPERATIVE URBAN BANK LTD
REPRESENTED BY ITS MANAGER, BALUSSERY P.O.,
KOZHIKODE-673612.
BY ADVS.
SMT.K.G.SAROJINI, GOVT.PLEADER
SRI MADHAVANUNNI V T
SRI SALIL NARAYANAN K.A. (SC)
SRI M.VIVEK RABINDRANATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.12290/2023
2
T.R. RAVI, J.
--------------------------------------------
W.P.(C)No.12290 of 2023
--------------------------------------------
Dated this the 1st day of February, 2024
JUDGMENT
The petitioner was a Lower Primary School Assistant working
in an Aided School who retired from service on superannuation on
30.04.2021. The petitioner is found entitled to get a sum of
Rs.11,69,831/- towards Death-cum-Retirement Gratuity (DCRG).
The amount is not released for the reason that the petitioner owes
amount as surety and as a principal debtor to respondents 4, 5,
and 6. The 4th respondent is Kerala State Financial Enterprises
Ltd. and respondents 5 and 6 are Co-operative Societies registered
under the Co-operative Societies Act. The contention of the
petitioner is that the above reason is not valid, and the provisions
of the Payment of Gratuity Act will apply to the case of the
petitioner. The question raised in the writ petition is whether the
gratuity due to a teacher in an Aided School can be withheld or
attached for reasons other than that are mentioned in the Payment
of Gratuity Act.
2. The 2nd respondent has filed a counter affidavit wherein
it is stated that the petitioner owes a sum of Rs.6,53,867/- to the
KSFE, Quilandy Branch, a sum of Rs.2,04996/- to the KSFE
Kozhikode Palayam Branch, a sum of Rs.94,474/- to the 6 th
respondent and a sum of Rs..50,3855 to the 4 th respondent
totalling to Rs.14,57,192/- which is much more than the amount of
DCRG that has been sanctioned to the petitioner. It is also stated
that revenue recovery proceedings were initiated against the
petitioner by the first two loans by the KSFE, and the Headmaster
of the school was directed by the above financial institutions not to
release non-liability certificate till clearance certificates are
produced by them. It is further stated in the counter affidavit that
the advances were paid on the basis of a written agreement from
the petitioner, consenting to recovery of the defaulted monthly
remittance. The counter affidavit does not, however, say that the
petitioner had agreed that the liability could be set off against the
DCRG payable. It is further stated that the petitioner's husband
had appeared for a personal hearing before the 2 nd respondent and
had agreed to settle the amounts that are due to the creditors. It
is contended that the Aided School Teachers are governed by the
Kerala Service Schools and the Kerala Education Rules. The
liability certificate has been produced along with the counter
affidavit as Ext.R2(b). Ext.R2(b) is seen issued on 13.02.2023 and
it certifies that the amount due is a sum of Rs.9,15,723/- and that
the same is towards liability to the Government. The amount
shown in Ext.R2(b) is less than the amount payable as DCRG.
However, no document is produced to show that the petitioner has
agreed or consented to adjust the DCRG towards these amounts.
3. The 6th respondent has filed a counter affidavit wherein
it is stated that the petitioner is a Government Servant and KSR is
applicable to the petitioner. However, the 6 th respondent has also
not produced any document to show that the petitioner has
consented to set off the amounts due to the 6 th respondent from
the DCRG payable to the petitioner. All that is stated is that the
loan was granted on the basis of the salary certificate of the
petitioner.
4. The 5th respondent has also filed a counter affidavit,
taking similar contentions as that of the 6 th respondent. It is
stated that the Payment of Gratuity Act is not applicable to the
petitioner and that the bar under Sections 13 and 14 of the Act
has no application to the case.
5. The counsel for the petitioner relied on the decision in
the State of Kerala & Ors. v. Omana S. N. [2017 (4) KLT
1043] to submit that the Payment of Gratuity Act will apply. The
Division Bench of this Court, in the above said decision was
considering the case of a retired Associate Professor in an Aided
College. The Court found that the petitioner therein was the
person coming within the definition of Section 2(e) of the Payment
of Gratuity Act. The case was not related to any deduction to be
made from the gratuity payable on account of liability towards
other financial institutions. The decision is relied on to submit that
the provisions of the Payment of Gratuity Act have an overriding
effect over the provisions of the KSR. Another Division Bench of
this Court in the decision in Manager, KSFE,
Thiruvananthapuram v. K.B.Unnikrishnan Nair & Ors. [2022
(1) KLT 807] considered the question of a loan liability being
adjusted towards the gratuity payable. That was the case of an
employee of the KSRTC who had taken a loan from the KSFE.
Recovery was sought by the KSFE from the gratuity payable to the
employee. This Court held that the provisions of the Payment of
Gratuity Act have primacy over other enactments and directed that
the DCRG due to the petitioner should be paid. The counsel for
the petitioner also submitted that the amount payable as gratuity
is not even liable to be attached in execution of a decree or order
of any civil, revenue, or criminal court, and as such, denial of
payment of gratuity cannot be justified in law.
6. In Muhammed Asharaf M.K. & Anr. v. Hajj
Committee of India [2019 (3) KLJ 925], a learned Judge of
this Court had held that the Aided School Teachers cannot be
treated as Government employees. The decision was rendered in
the context of the appointment of Haj volunteers. In Mohanan
Nair P.G. v. Omallur Service Co-operative Bank Limited &
Ors. [ILR 2022 (2) Ker. 1123], a Division bench of this Court
considered the effect of the provisions of the Payment of Gratuity
Act in the case of employees of a Co-operative Society. That was a
case in which the terminal benefits due to the employee were
withheld in view of the liability certificate issued based on audit
objections. The Division Bench held that even if the respondents,
in that case, propose to initiate any proceedings against the
petitioner therein under the Kerala Co-operative Societies Act,
such proceedings that may be initiated in the future cannot be a
bar to directing the release of the pensionary benefits like gratuity,
provident fund, etc. The Court held that withholding the payment
of gratuity based on audit objections is illegal, ultra vires, and
unreasonable and directed the respondents therein to disburse the
full gratuity amount due to the petitioner therein with interest at
the rate of 8% per annum to be paid within a stipulated time and
on non-payment, it was directed that interest shall be paid at the
rate of 10% per annum. The counsel for the respondents
submitted that as per Rule 3 of Chapter 27B of Kerala Education
Rules, the Rules on retirement benefits, including family pension
and DCRG, and all conditions for grant of those benefits applicable
to Government servants as laid down in Part III of KSR as
amended from time to time shall mutatis mutandis apply to the
teachers governed by the Rules. It is hence submitted that
provisions of Part III KSR will be applicable, and the said
provisions permit withholding of DCRG. Regarding the judgment
of the Division Bench in Omana (supra), the counsel submitted
that the conditions of service of teachers therein are governed by
the University First Statutes, and even there, Part III KSR has
been made applicable. The counsel also referred to the judgment
in The Secretary, Local Self Government Department & Ors.
v. K.Chandran & Ors. [Civil Appeal Nos.7437-7438 of 2021]
rendered by the Hon'ble Supreme Court, whereby the judgment of
a Full Bench of this Court was reversed with regard to the
applicability of Rules 3 and 3A of Part III KSR. Reliance is placed
on the sentence in the judgment, which says that "even in the
absence of disciplinary or judicial proceedings, in certain
eventualities, amounts can be recovered from the DCRG".
In Calcutta Dock Labour Board & Anr. v. Sandhya Mitra &
Ors. [AIR 1985 SC 996], the Hon'ble Supreme Court, after
considering the effect of Section 13 of the Payment of Gratuity Act
held that Section 13 gives total immunity. In Som Prakash
Rekhi v. Union of India & Anr. [AIR 1981 SC 212] also the
Hon'ble Supreme Court held that a Regulation which is contrary to
the provisions of the Provident Fund Act and Gratuity Act must fail
as invalid.
7. The question to be decided is whether amounts can be
deducted from the DCRG on the allegation that the petitioner owes
money to financial institutions, which can be treated as
Government. The Service Laws relating to the employees of the
State contain provisions for deducting amounts from the DCRG
towards liabilities owed to the Government. That by itself does not
give any power to the Government to attach or appropriate from
the DCRG amounts which may be due to other financial
institutions. A contention is taken in the counter affidavit that the
petitioner has agreed in writing permitting the Society to recover
from the emoluments in case of default. That permission is with
regard to deduction from the salary and not from the retirement
benefits. There is no right to deduct any amount from the DCRG.
In view of the decisions aforesaid and the statutory provisions,
attachment of the amounts due as gratuity is prohibited. A
deduction of any amount from the DCRG can be no different from
the case of attachment of the DCRG.
8. The petitioner is, hence, entitled to succeed. The writ
petition is allowed. Respondents 1 and 2 are directed to release
the DCRG payable to the petitioner with statutory interest from the
date of retirement of the petitioner within one month from the
date of receipt of a certified copy of this judgment. The above
judgment will not in any manner affect the right of respondents 4
and 5 to recover any amount due to them from the petitioner in a
manner permitted by law.
Sd/-
T.R. RAVI
JUDGE
dsn
APPENDIX OF WP(C) 12290/2023
PETITIONER EXHIBITS
Exhibit-P1 COPY OF 2ND RESPONDENT'S NOTICE TO
PETITIONER DATED 18.1.23 BEARING
NO.A/3479/2020.
Exhibit- P2 COPY OF PETITIONER'S LETTER DATED
28.2.23 TO THE 2ND RESPONDENT.
Exhibit-P3 COPY OF LIABILITY CERTIFICATE-DATED
4.3.23 BEARING NUMBER AEOBSY/46/2023-A
ISSUED TO THE TREASURY OFFICER BY THE
2ND RESPONDENT.
Exhibit-P4 A COPY OF THE 1ST RESPONDENT'S LETTER
DATED 23.3.23 ISSUED TO THE PETITIONER.
Exhibit-P5 A COPY OF GO (P) NO.90/2021 FINANCE
DATED 28.6.2021.
RESPONDENTS' EXHIBITS
EXHIBIT R2(A) TRUE COPY OF THE LETTERS SUBMITTED BY
THE HUSBAND OF THE PETITIONER DATED 31-
01-2023
EXHIBIT R2(B) TRUE COPY OF THE LIABILITY CERTIFICATE
DATED 13-02-2023
EXHIBIT R2(C) TRUE COPY OF THE WRITTEN CONSENT
SUBMITTED BY THE PETITIONER DATED 14-11-
ANNEXURE R(4) A THE TRUE COPY OF THE UNDERTAKING
EXECUTED BY THE PETITIONER
