Madras High Court
The Karur Town-Co Operative Bank vs The Presiding Officer on 23 June, 2021
W.A.(MD)No.1175 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.1175 of 2021
and
C.M.P.(MD)No.5014 of 2021
The Karur Town-Co operative Bank,
Rep by its General Manager,
Karur,
Karur District. : Appellant
Vs.
1.The Presiding Officer,
Gratuity Appellate Tribunal,
Trichy.
2.The Gratuity Controlling Authority,
Assistant Commissioner of Labour,
Dindigul.
3.V.Nirmala : Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent,
praying to set aside the order dated 26.02.2019, in W.P.(MD)No.15354 of
2015.
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W.A.(MD)No.1175 of 2021
For Appellant : Mr.P.Samuel Gunasingh
For Respondents 1&2 : Mr.A.K.Manickam
Standing Counsel for Government
For Respondent No.3 : Mr.M.P.Senthil
JUDGMENT
***************
[Judgment of the Court was delivered by T.S.SIVAGNANAM, J.]
We have heard Mr.P.Samuel Gunasingh, learned Counsel
appearing for the appellant, Mr.A.K.Manickam, learned Standing Counsel
for Government appearing for the respondents 1 & 2 and Mr.M.P.Senthil,
learned Counsel appearing for the third respondent.
2.This Writ Appeal by the appellant Co-operative Society is
directed against the order dated 26.02.2019, in W.P.(MD)No.15354 of
2015.
3.The said writ petition was filed by the appellant society
challenging the order passed by the second respondent in P.G.No.47 of
2012 dated 06.08.2012, confirming the order passed by the first
respondent in PGACP No.6 of 2013 dated 12.11.2013.
4.The issue before the learned Writ Court was whether the
gratuity amount payable to the husband of the third respondent since
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W.A.(MD)No.1175 of 2021
deceased, can be attached by the appellant society. The third respondent
contended that there is a statutory bar under Section 13 of the Payment
of Gratuity Act, 1972 and no gratuity amount payable to an employee
could be attached for execution of any decree, order of Civil Court,
Revenue or Criminal Court. Accepting the said submission, the learned
Writ Court has allowed the writ petition and issued a consequential
direction for payment of Rs.3,57,770/-, together with interest at 10%
interest from the date of demise of the employee ie., 24.06.2007, till the
date of payment to the third respondent.
5.The learned Counsel for the appellant submitted that the
deceased employee has to pay various loans availed by him namely, Staff
Consumer Loan, Employee Personal Loan, Staff Festival Advance,
Marriage Loan, Vehicle Loan, PF Loan and Suspense Account and there is
also an amount payable to the other Co-operative Banks. It is submitted
that all these amounts are payable together with interest and the
appellant society has given the details of loans.
6.The learned Counsel for the third respondent submitted that
the third respondent does not accept the figures given by the appellant
society, as the appellant society has not placed the calculation as to how
the amounts have been arrived at. In this regard, the learned Counsel has
drawn our attention to the order passed by the Labour Court, Trichy in
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W.A.(MD)No.1175 of 2021
R.P.No.4 of 2009 dated 13.03.2014, filed by the third respondent and the
other legal heirs of the deceased employee Mr.Vijayakumar.
7.It is pointed out that the said claim petition was filed claiming
various sums of money payable to the deceased employee totalling to a
sum of Rs.3,58,000/- and the third respondent also claimed the interest at
the rate of 18%. An order has been passed by the Labour Court on
13.03.2014. It appears that the said order has attained finality and the
appellant society has not challenged the said order. Therefore, it is the
submission of the learned Counsel for the third respondent that in terms
of the computation, the third respondent is entitled for payment from the
appellant society and without effecting such payment, insisting upon
recovery of amount from the gratuity amount payable to the deceased
employee is incorrect.
8.The learned Counsel appearing for the appellant in reply
would submit that a third party has filed a suit for recovery of the money
payable by the deceased employee in which the third respondent is a
party and the appellant society has also been made as a party and a
garnishing order has been obtained and there is an order of attachment
by the Civil Court and on account of the same, the amount cannot be
utilised by the appellant society to adjust the loans availed by the
deceased employee.
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W.A.(MD)No.1175 of 2021
9.Before we go into this issue, we need to clarify the legal issue
as to whether the appellant society is entitled to recover the loan amount
from the gratuity payable to the deceased employee. In terms of Section
48 of the Tamil Nadu Co-operative Societies Act, 1983, deductions are
permissible to be made from the salary, wages and gratuity of an
employee of the society to which the employee has signed an agreement.
Further more, under the byelaws of the appellant society, more
particularly, bylaw 65(15)(12) empowers appellant society to recover the
dues payable to the appellant society and the loan dues payable by the
employee pursuant to an agreement executed by them from the
retirement gratuity of the employee.
10.The bylaws of the appellant society are the special rules and
the same will prevail over the Payment of Gratuity Act, more particularly,
because the society has been registered under the provisions of the Tamil
Nadu Co-operative Societies Act, 1983. Section 48 of the said Act,
empowers deductions from gratuity. Therefore, the finding of the learned
Writ Court by referring to Section 13 of the Payment of Gratuity Act
cannot be made applicable to the recovery that can be effected by the
appellant society from the gratuity payable to the employee retiring.
Therefore, the finding of the learned Writ Court has to be set aside.
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W.A.(MD)No.1175 of 2021
11.Next issue is as to what is the amount payable by the
deceased employee. Admittedly, the order passed by the Labour Court in
R.P.No.4 of 2009, has attained finality. Therefore, the appellant should
necessarily do the computation. This computation should be done after
putting on notice the third respondent, so that if there is any dispute with
regard to the computation, the matter can be sorted out. The third
respondent should know as to what is the loan availed by her husband
and how the dues have been calculated as well as the calculation of
interest. This issue can be sorted out only if an opportunity is granted to
the third respondent or her authorised representative. So far as the order
of attachment passed by the Civil Court at the instance of a third party is
concerned, it will be well open to the appellant society to seek for raising
the order of attachment on the ground that the dues payable by the
society are statutorily recoverable in terms of the provisions of the Act
and the bylaws and these dues payable to the appellant society will have
precedence over the debt payable by the third respondent husband to a
private party. If such an application is filed, it goes without saying that
the concerned Civil Court will take note of this aspect and pass
appropriate orders.
12.Accordingly, the Writ Appeal is allowed and the order passed
by the learned Writ Court is set aside. The appellant society is directed to
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W.A.(MD)No.1175 of 2021
issue notice to the third respondent, afford an opportunity of personal
hearing to the third respondent in which the computation as ordered by
the Labour Court in R.P.No.4 of 2009, shall be calculated and the amount
of dues payable by the deceased employee towards various loans availed
by him shall also be furnished to the third respondent and thereafter,
appropriate adjustments / recovery shall be made from the gratuity
amount and the remaining, if any, shall be returned to the third
respondent. The above direction shall be complied with by the appellant
society within a period of eight [8] weeks from the date of receipt of a
copy of this judgment. Considering the fact that the employee is no more
and also the fact that the Labour Court had passed an order in R.P.No.4 of
2009, on 13.03.2014, which has not been complied with by the appellant
society, this is a fit case where the appellant society can grant concession
in the interest payable in the loan account, which shall be in terms of the
extent permissible as per the directions of the Board of the appellant
society. However, there shall be no order as to costs. Consequently, the
connected miscellaneous petition is closed.
[T.S.S., J.] & [S.A.I., J.]
23.06.2021
Index : Yes / No
Internet : Yes / No
MR
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1175 of 2021
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized
for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
To
1.The Presiding Officer,
Gratuity Appellate Tribunal,
Trichy.
2.The Gratuity Controlling Authority,
Assistant Commissioner of Labour,
Dindigul.
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W.A.(MD)No.1175 of 2021
T.S.SIVAGNANAM, J.
AND
S.ANANTHI, J.
MR
JUDGMENT MADE IN
W.A.(MD)No.1175 of 2021
23.06.2021
https://www.mhc.tn.gov.in/judis/
