Food Corporation of India v. M.B. Vijayaraghavan Nair and Ambika Vijayaraghavan Nair

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022/30TH AGRAHAYANA, 1944** ## **OP(CRL.) NO. 485 OF 2010** **AGAINST THE ORDER IN CRL.M.P.NO.1002/2010 IN CMP 4428/2008 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM PETITIONER:** FOOD CORPORATION OF INDIA REPRESENTED BY ITS AREA MANAGER, DISTRICT OFFICE,, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-11. BY ADV SRI.JOSE KURIAKOSE, SC, FCI ## **RESPONDENTS:** 1 M.B.VIJAYARAGHAVAN NAIR MULLEPPILLIL HOUSE, PALLIPARAMBUKARA ROAD,, VYRELIL NAGAR, TRIPUNITHURA.P.O., ERNAKULAM-682301. 2 AMBIKA VIJAYARAGHAVAN NAIR W/O.M.B.VIJAYARAGHAVAN NAIR, MULLEPPILLIL HOUSE, PALLIPARAMBUKARA ROAD, VYRELIL NAGAR,, RIPUNITHURA.P.O., ERNAKULAM-682 301. BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM), SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR,SRI.S.K.ADHITHYAN SRI.SABU PULLAN THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 1.12.2022, THE COURT ON 21.12.2022 DELIVERED THE FOLLOWING: OP(Crl) No.485/2010 ## -:2:- J U D G M E N T Dated this the 21[st] day of December, 2022 Ext.P4 order passed by the Additional Chief Judicial Magistrate Court, Ernakulam (for short, 'the court below') in Crl.M.P.No. 1002/2010 in CMP No.4428/2008 dated 24[th] September, 2010 is under challenge in this original petition. 2. The 1[st] and 2[nd] respondent are husband and wife. The 1[st] respondent was employed as Senior Grade Watchman at the petitioner Corporation. He was terminated from service w.e.f. 5/3/2004 due to unauthorized absence. 3. The 2[nd] respondent filed Crl.M.P.No.873/2007 at the court below under section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the DV Act') claiming various reliefs. The court below as per the order dated 31/3/2008 allowed the said petition and directed, _inter alia,_ the 1[st] respondent to pay a sum of `5,00,000/- as maintenance to the 2[nd] respondent and her daughter. Thereafter, the 2[nd] respondent OP(Crl) No.485/2010 -:3:- filed Crl.M.P. No. 1255/2008 at the court below to enforce the said order. It was alleged that a sum of `4,05,000/- was due to the 1[st] respondent from the petitioner towards his service benefits. Hence, a prayer was sought to direct the petitioner to furnish the details of the amount due to the 1[st] respondent towards his service benefits. Notice was issued to the petitioner by the court below. In compliance of the notice, the petitioner submitted Ext.P3 statement which would show that a sum of `1,62,732/towards gratuity and a sum of `46,869/- towards provident fund contribution were available with the petitioner. The court below as per Ext.P4 order directed the petitioner to deposit the said amount (`2,09,601/-) within one month. 4. I have heard Sri. Jose Kuriakose, the learned counsel for the petitioner and Dr.K.P.Satheesan, the learned senior counsel for the 2[nd] respondent. There is no appearance for the 1[st] respondent. 5. The learned counsel for the petitioner submitted that section 13 of the Payment of Gratuity Act, section 10 of the Employees' Provident Funds and Miscellaneous Provisions Act as OP(Crl) No.485/2010 -:4:- well as S.60 of C.P.C., debars the attachment of gratuity and provident fund due to an employee in execution of any decree or order of any civil, revenue or criminal court and hence Ext.P4 is illegal and unsustainable. The counsel further submitted that if the amounts are disbursed to the 2[nd] respondent and thereafter in case the 1[st] respondent claims the amount in future, the petitioner corporation will be put to serious difficulty in view of the protection envisaged under the Payment of Gratuity Act. Per contra, the learned senior counsel for the 2[nd] respondent submitted that Ext.P4 is legal and valid and is in tune with section 20(6) of the DV Act. Placing reliance on the decision of the Division Bench of this court in _**Abdul Sathar v. Pathimuthu and Others**_ [2020 (1) KHC 766], the learned senior counsel further submitted that section 13 of the Payment of Gratuity Act and S.10 of the Employees' Provident Funds and Miscellaneous Provisions Act are not applicable in a case where the attachment is sought to realise the maintenance amount of the wife and children of the employee. 6. It is true that gratuity payable to an employee under OP(Crl) No.485/2010 -:5:- the Payment of Gratuity Act is protected from attachment in execution of any decree or order of any civil, revenue or criminal court under section 13. So also, the amounts standing to the credit of any member of the provident fund is protected from attachment under any decree or order of any court under section 10 of the Provident Fund Act. Similarly, under section 60(1)(g) of CPC, stipends and gratuity allowed to pensioners of the Government or of a local authority or of any other employer, or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government are exempted from attachment and sale in execution of a decree. However, the crucial question is whether the bar provided under the statute mentioned above applies to the realisation of a maintenance order or decree. 7. The 2[nd] respondent sought for withholding of the 1[st] respondent's gratuity and provident fund to satisfy the order of maintenance passed in her favour by the court below way back in 2008. The whereabouts of the 1[st] respondent is not known. In fact, he was terminated from service by the petitioner for his OP(Crl) No.485/2010 ## -:6:- unauthorized absence. The execution petition was filed in 2008. The liability of the husband to maintain his wife and children is statutory and sacrosanct falling within the sweep of Articles 15(3) and 39 of the Constitution of India as observed by the Apex Court in _**Ramesh Chander Kaushal v. Veena Kaushal and Others**_ (AIR 1978 SC 1807). The question whether father's pensionary benefits are exempted from attachment in execution of the maintenance decree came up for consideration before a Division Bench of this court in _**Abdul Sathar**_ (supra). That was a case where a maintenance decree was sought to be executed by the wife on behalf of her children against the husband by attaching the pensionary benefits payable to him by his employer/KSRTC. Relying on Rule 124 of the Kerala Service Rules, Part III and S.60(1)(g) of CPC, it was contended that the pensionary benefits cannot be attached. Rule 124 of Kerala Service Rules states that no pension granted or continued by Government on political consideration or on account of the past service or present infirmities or as a compassionate allowance and no money due, or to become due, on account of any such pension or allowance OP(Crl) No.485/2010 -:7:- shall be liable to attachment by process of any court in India at the instance of a creditor for any demands against the petitioner or in satisfaction of a decree or order of any such court. It was held that the petitioner/husband cannot defeat his children from realising maintenance from him, which is their indefeasible statutory right having precedence over the exemption under Rule 124 of the Rules. Here also, the gratuity and provident fund stands in the account of the 1[st] respondent with the petitioner is sought to be attached to realise the maintenance due to the 2[nd] respondent and her daughter. Hence, the dictum laid down in _**Abdul Sathar**_ (supra) squarely applies to the facts of the case. That apart, Section 20(6) of the DV Act empowers the Magistrate to direct the employer or a creditor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent. In these circumstances, I see no illegality or impropriety in the impugned order to invoke the jurisdiction vested with this court under Article 227 of the Constitution of India. Accordingly, the original petition stands dismissed. The OP(Crl) No.485/2010 -:8:- deposit of the gratuity amount and the contribution of provident fund balance amount due to the 1[st] respondent by the petitioner at the court below would absolve the petitioner from all its liabilities with respect to gratuity amount and provident fund contribution of the 1[st] respondent. OP(Crl) is disposed of as above. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp** OP(Crl) No.485/2010 ## -:9:- ## **APPENDIX OF OP(CRL.) 485/2010** PETITIONER'S EXHIBITS EXHIBIT P1 A TRUE COPY OF THE CRL.M.P.1255/2008 IN CRL.M.P. No. 873/2007 ON THE FILE OF ACJM, ERNAKULAM. EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED 18.09.2008 ISSUED BY THE ACJM COURT, ERNAKULAM TO THE PETITIONER. EXHIBIT P3 THE TRUE COPY OF THE STATEMENT OF ACCOUNTS EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 24.09.2010 IN CRL.M.P. No.1002/2010 IN CMP NO.4428/2008 BY THE ACJM COURT, ERNAKULAM. ## **RESPONDENT'S EXHIBITS** EXT.R2(a) TRUE PHOTOSTAT COPY OF THE FIR NO.51/2005 REGISTERED BY HILL PALACE POLICE. EXT.R2(b) TRUE PHOTOSTAT COPY OF THE JUDGMENT IN OS NO.329/2005 EXT.R2(c) TRUE PHOTOSTAT COPY OF THE NOTICE ISSUED TO THE 1ST AND 2ND RESPONDENT. EXT.R2(d) TRUE PHOTOSTAT COPY OF THE PUBLIC NOTICE DATED 15.2.2006 EXT.R2(e) TRUE PHOTOSTAT COPY OF THE ORDER DATED 31.3.2008 IN MP NO.873/2007 PASSED BY THE ADDL.CHIEF JUDICIAL MAGISTRATE, OP(Crl) No.485/2010 ## -:10:- ERNAKULAM. EXT.R2(f) TRUE PHOTOSTAT COPY OF THE ORDER DT 28.6.2007 IN OP NO.202/2006 EXT.R2 (g) TRUE PHOTOSTAT COPY OF THE PETITION IN M.P.NO.873/2007 SEEKING RELIEF CONTEMPLATED UNDER SECITON 12 OF HT EPROTECTION OF WOMEN'S VIOLENCE ACT. EXT.R2 (h) TRUE PHOTOSTAT COPY OF THE JUDGMENT DT 8.10.2009 IN WPC NO.35005/2008 PASSED BY THIS HON'BLE COURT. EXT.R2 (i) TRUE PHOTOSTAT COPY OF THE REPRESENTATIONS DATED 10.6.2010.