11.In my view, even if there is surcharge proceedings pending or the same got finalised, the same cannot be a reason to withhold gratuity or provident fund. There is a statutory protection given under Sections 78 and 79 of the Tamil Nadu Co-operative Societies Act, 1983. The gratuity fund shall be established by the Society, whenever the Payment of Gratuity Act, 1972, is not applicable to the Society, as per Section 79 of the Tamil Nadu Cooperative Societies Act, 1983. Gratuity payable from the said fund is protected under Section 79 of the Act as the gratuity is protected under Section 13 of the Payment of Gratuity Act. A similar protection is given to the provident fund under Section 78 of the Tamil Nadu Cooperative Societies Act, 1983. In either way, the third respondent Society cannot deprive the terminal benefits. The second respondent has not chosen to issue a proper direction to the third respondent to pay terminal benefits to the petitioner. At this juncture, it is relevant to extract Sections 78 and 79 of the Tamil Nadu Co-operative Societies Act, 1983, which reads as follows:
