Allowed

Chandramathy Amma.K.S. v. the Accountant General (a & E)

Kerala HC8 Nov 2012WP(C)/1471/2008

Case brief

AI extract

What is this about?

This writ petition challenged the non-disbursement of gratuity for the deceased husband of the petitioner, held as surety for a loan. The Court held that pursuant to extant law and judicial precedent, DCRG cannot be attached or set off against the bank's dues without specific consent, allowing the petitioner to receive the amount.

What did the court decide?

The amount shown in the liability certificate is declared non-recoverable from the deferred gratuity sanctioned by the pay order, and the respondent is directed to disburse the amount within six weeks

Chandramathy Amma.K.S. Vs the Accountant… — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934

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WP(C).No. 1471 of 2008 (A)

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PETITIONER(S):

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CHANDRAMATHY AMMA. K.S., MANIMANDIRAM, KADUVINAL P.O., VALLIKUNNAM, ALAPPUZHA DIST.

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BY ADVS. SRI.R.GOPAN, SRI.BASANT BALAJI.

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RESPONDENT(S):

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1. THE ACCOUNTANT GENERAL (A & E), THIRUVANANTHAPURAM.

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2. THE SUB TREASURY OFFICER, SUB-TREASURY, KAYAMKULAM.

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3. THE HEADMISTRESS, H.S., KOIPPILLY, KARANMA, OLAKETTIYAMBALAM P.O.,

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ALAPPUZHA DISTRICT.

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4. THE SECRETARY, KARTHIKAPPILLY TALUK AGRICULTURAL DEVELOPMENT BANK LTD.A 326,

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HARIPPAD.

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*5. SHEELA, P.K.NIVAS, OLAKETTIYAMBALAM P.O., MAVELIKKARA. (CORRECTED)

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THE NAME AND ADDRESS OF THE 5TH RESPONDENT CORRECTED AS

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SHEEJA, W/O.SAJEEVAN, DEEPU NIVAS, THITTAMEL P.O., CHENGANNUR, ALAPPUZHA DISTRICT-689 121.

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AS PER ORDER DATED 01/10/2012 IN I.A.12652/2012.

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R1 & R2 BY GOVT. PLEADER MR.T.R. RAJESH. R3 BY ADVD. SRI.P.B.SAHASRANAMAN, SRI.K.JAGADEESH, SRI.T.S.HARIKUMAR. R4 BY ADVS. SRI.P.SREEKUMAR, SRI.K.S.MANU (PUNUKKONNOOR). R5 BY ADV. SRI.ARUN CHANDRAN.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 1471 of 2008 (A)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1	COPY OF THE DEATH CERTIFICATE OF SURENDRAN PILLAI DATED 04/03/2005.
EXT.P2	COPY OF THE PENSION PAY ORDER DATED 02/06/2006 ISSUED BY THE 1ST RESPONDENT.
EXT.P3	COPY OF THE SALARY CERTIFICATE AND CONSENT FORM BY 3RD RESPONDENT DATED 29/10/1993.
EXT.P4	COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14/06/2006.
EXT.P5	COPY OF THE LETTER DATED 04/08/2006 BY THE DEPUTY DIRECTOR OF EDUCATION.
EXT.P6	COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 30/03/2007.
EXT.P7	COPY OF THE LIABILITY CERTIFICATE ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION DATED 09/05/2007.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

P.R. RAMACHANDRA MENON, J.

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W.P. © No.1471 OF 2008

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......................................................................... Dated this the 8^th November, 2008

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J U D G M E N T

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Non-disbursement of gratuity payable in respect of the deceased husband of the petitioner is the subject matter of challenge involved in this writ petition. The sequence of events as narrated in the writ petition shows that the petitioner's husband was working as Sanskrit Teacher in the Koyppalli Karanma High School and he took his last breath on 24.02.2005. Despite the lapse of several years, the retirement benefits, particularly, the gratuity payable to the petitioner in respect of her husband's service was not released which in turn is sought to be challenged in this writ petition.

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The learned Counsel for the petitioner submits that the gratuity payable to the petitioner in respect of her husband's service was caused to be detained referring to some liability to

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be discharged to the 4^th respondent -District Co-operative Bank, since he was a surety to the loan availed by the 5^th respondent . There is no dispute that the husband of the petitioner had stood as surety for availing the loan by the 5^th respondent and that the amount to be cleared by the 5^th respondent was not satisfied and he came to be a defaulter. Since the gratuity which was sanctioned as per Ext.P2 Pension Pay Order was not disbursed, the petitioner filed Ext.P4 representation before the Headmistress, which did not yield any positive result. This made the petitioner to approach the departmental authorities, pursuant to which the AEO, vide Ext.P5 required the Headmistress to forward the Non-liability Certificate to the office. It was pursuant to this, that Ext.P7 liability Certificate came to be issued, wherein the liability to an extent of Rs.56,561/- was shown as liability of the deceased husband of the petitioner, to be paid to the 4^th respondent. The case of the petitioner is that no agreement or consent was ever given by the deceased husband of the petitioner to have the due amount satisfied from the DCRG payable if any default in clearing the liability to the 4^th

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respondent was there from the part of the 5^th respondent.

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Heard the learned Government Pleader appearing for the concerned respondents as well as the learned Counsel for the Addl.5^th respondent. There is nobody to represent the 4^th respondent, despite completion of service of notice and no counter affidavit has been filed on behalf of the said respondent .

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During the course of hearing, the learned Counsel for the petitioner submits that the DCRG payable is not liable to be attached or set off against the liability to the 4^th respondent, which is a Co-operative Bank governed by the relevant provisions of the Kerala Co-operative Societies Act and Rules. Reliance is sought to be placed on the decision reported in 2005(4) KLT

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619 , (Surendran vs. Mavelikkara Primary Co-op. Agrl. &

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R.D. Bank Ltd.) wherein, referring to the relevant provisions of law, particularly Section 37 of the Co-operative Societies Act, 1969 (Kerala) and also Note I Rule 3 of Part III KSR, it has been held that the amount due to a Co-operative Society from its member cannot be recovered from the DCRG under Section 37, as the expression 'Salary' used in Section 37 will not include

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DCRG . It has also been made clear that such recovery is possible, with reference to Note I.Rule 3 of Part III KSR, only if the Government employee consents to such recovery. The learned Counsel submits with reference to the contents of Ext.P2 consent given by the deceased husband/employee that the consent given was only for recovery from the salary and not from the DCRG.

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In the above circumstance, this Court finds that the petitioner is entitled to succeed. It is declared that the amount shown in Ext.P7 is not recoverable from the DCRG as sanctioned vide Ext.P2. The concerned respondent shall take appropriate steps to disburse the due amount to the petitioner forthwith, at any rate within six weeks from the date of receipt of a copy of this judgment. It is open for the 4^th respondent to proceed against the 5^th respondent/principal borrower or the other remaining sureties, if any, for realisation of the due amount, if the same is still to be cleared. It is also made clear that since no wilful default is established on the part of the Government/departmental authorities, the claim for interest

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cannot be entertained by this Court.

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The writ petition is allowed to the said extent. No cost.

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P.R. RAMACHANDRA MENON, JUDGE.

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