K.Y. Thomas v. Kerala State Financial Enterprises Ltd. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933** **WP(C).No. 4792 of 2011(Y)** **-------------------------** **PETITIONERS:** **---------------------** **K.Y.THOMAS, S/O.YOHANNAN, AGED 61 YEARS, THEKEDATH PARAMBIL HOUSE, MANJOOR P.O., KURUPPAMTHARA, KOTTAYAM DISTRICT.** **BY ADV. SRI.SURESH JOSE** **RESPONDENTS:** **------------------------** **1. THE KERALA STATE FINANCIAL ENTERPRISES LTD., REP.BY ITS MANAGING DIRECTOR-695001** **2. THE SPECIAL DY.TAHSILDAR (R.R.) KERALA STATE FINANCIAL ENTERPRISES LTD., ERNAKULAM,KACHERIPADI-682018** **3. THE DISTRICT COLLECTOR, KAKKANAD, ERNAKULAM-682030** **4. THE JOINT REGISTRAR (GENERAL) CO-OPERATIVE JOINT REGISTRAR OFFICE, ERNAKULAM-682016** **5. THE ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD.,NARACKKAL BRANCH, NARAKKAL P.O-682505** **6. THE ACCOUNTS OFFICER (ESTT) OFFICE OF PRINCIPAL GENERAL MANGER (TELECOM),B.S.N.L. BHAVAN, ERNAKULAM, KOCHI-16.** **BY GOVT. PLEADER, SMT. ROSE MICHAEL. R1 BY ADV. SRI.T.NAVEEN, SC, K.S.F.E. LTD. R5 ADV. SRI.P.V.SURENDRANATH,SC, FOR E.D.C R6 ADV. SRI.P.J.PHILIP,SC,BSNL(BHARAT SANCHAR)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-6-2011, THE COURT ON 09-12-2011 DELIVERED THE FOLLOWING:** **MM** ## **WP(C).No. 4792 of 2011(Y)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **P1 COPY OF THE PROHIBITORY ORDER DATED 19-3-2007 ISSUED BY THE 2ND RESPONDENT P2 COPY OF PROHIBITORY ORDER DATED 20-6-2008 ISSUED BY THE 2ND RESPONDENT P3 COPY OF PROHIBITORY ORDER DATED NIL ISSUED BY THE 2ND RESPONDENT P4 COPY OF PROHIBITORY ORDER DATED JUNE, 2001 ISSUED BY THE 2ND RESPONDENT P5 COPY OF PROHIBITORY ORDER DATED 16-3-2007 ISSUED BY THE 2ND RESPONDENT P6 COPY OF PROHIBITORY ORDER DATED 1-4-2002 ISSUED BY THE 2ND RESPONDENT P7 COPY OF PROHIBITORY ORDER DATED 29-6-2004 ISSUED BY THE 4TH RESPONDENT P8 COPY OF NO DEMAND CERTIFICATE DATED 2-6-2008 P9 COPY OF SANCTION DATED 28-7-2008 P10 COPY OF ORDER DATED 05-1-2011 P11 COPY OF ORDER DATED 07-12-2010 P12 COPY OF ORDER DATED 06-08-2008 RESPONDENTS EXHIBITS: NIL TRUE COPY P.A. TO JUDGE MM** ## **C.K.ABDUL REHIM,J.** --------------------------------WP(C) No.4792 OF 2011 --------------------------------Dated this the 9[th] day of December , 2011 ## **J U D G M E N T** The petitioner is a retired employee of BSNL. The challenge is against steps initiated by the 6[th] respondent for recovery of non-governmental dues out of the Death-cumRetirement Gratuity (DCRG) and other pensionary benefits, due to the petitioner. The main ground of challenge is that recoveries from gratuity is not possible as per Rule 71, 72 and 73 of Central Civil Service (Pension) Rules, 1972,(CCS (Pension)Rules) as clarified through Ext.P12 circular issued by the Government of India, Ministry of Communication and IT, Department of Telecommunications. 2. Brief facts of the case is that, through Ext.P9 order issued by the 6[th] respondent, the admissible gratuity amount of Rs.3,34,307/- was ordered to be withheld, towards outstanding dues. The petitioner challenged the said action in a writ petition filed before this Court, W.P(C) No.24857/2008, which WP(C) No.4792 OF 2011 2 was transferred to the Central Administrative Tribunal, Ernakulam Bench. The said Tribunal allowed the case through its order dated 26-11-2009 (Ext.R6 (a)). The Tribunal found that DCRG was withheld on the basis of various orders of attachments received by the 6[th] respondent from different authorities including competent Civil Courts. It is noticed by the Tribunal that the 6[th] respondent had received 18 distinct prohibitory orders and attachment orders as garnishee, for recovery of a huge amounts of Rs.40,75,438/- from the petitioner. The Tribunal observed that it is quite strange that the petitioner had involved himself in a liability of several lacks, just before his retirement. However, the Tribunal had not gone into those aspects as it was not relevant for disposal of the case. 3. The legality with respect to withholding of DCRG was considered by the Tribunal. Holding that the withholding of DCRG is violative of Rules 71, 72 and 73 of the CCS (Pension) Rules read with the directions contained in Ext.P12 circular, the Tribunal directed the 6[th] respondent to release the amount WP(C) No.4792 OF 2011 3 of gratuity and commuted value of pension, forthwith to the petitioner along with payment of interest @ 9% from the date of his retirement till the date of payment. 4. The order of the Central Administrative Tribunal was challenged before this court by the BSNL in W.P (c) No.2493/2010. This Court observed that the prohibitory orders and attachment orders were issued by competent civil courts and other authorities, Code of Civil Procedure and under the Revenue Recovery Act. By virtue of such orders the persons who has custody of money belonging to the defaulter is at an obligation to act in terms of those orders. Otherwise they would be visited with penal consequences, in terms of Code of Civil Procedure and other relevant Statutes. This Court observed that the Central Administrative Tribunal is not sitting in judgment on the correctness or otherwise of a judicial order of a competent civil court or even on an order issued by the statutory authority under the Revenue Recovery Act. An officer cannot seek relief from the Tribunal qua an attaching creditor. It was observed that the officer not having moved before the WP(C) No.4792 OF 2011 4 competent Civil court or before the appropriate authority to lift such prohibitory orders, which are issued invoking the provisions of the Code of Civil Procedure or the Revenue Recovery Act, as the case may be, is bound by the effect of those orders. It is held that the Tribunal has no jurisdiction to sit in judgment on the correctness of those orders. In the result this Court held that the Tribunal acted wholly without jurisdiction in interfering with the orders of attachment and the prohibitory orders, and went wrong in directing release of the amounts due to the petitioner. 5. Thereafter the petitioner had approached the District Collector, Ernakulam challenging the revenue recovery steps initiated by the 2[nd] respondent for realisation of the amount due to the 1[st] respondent and challenging the attachment ordered from the amount of DCRG due to the petitioner. Through Ext.P10 order the District Collector had declined the request stating that, as per provisions of the Kerala Recovery Recovery Act the amount of gratuity is not exempted from attachment. Likewise, the petitioner had approached the 4[th] WP(C) No.4792 OF 2011 5 respondent seeking to cancel the attachment orders/prohibitory orders issued by the Special Sale officer of the 5[th] respondent Bank. Through Ext.P11 the 4[th] respondent had declined such request stating that the attachment is effected by virtue of powers conferred under Section 76 of the Kerala Co-operative Societies Act read with Rule 77 of the Kerala Co-operative Societies Rules, and therefore the attachment could not be lifted. In this writ petition the petitioner is challenging Exts.P10 and P11 orders passed by respondents 3 and 4. Inter alia the petitioner is seeking a declaration to the effect that respondents 1 to 5 have no authority under the Kerala Revenue Recovery Act to attach the gratuity payable to the petitioner. 6. The limited question to be considered is as to whether the amount of DCRG payable to the petitioner can be attached invoking provisions of the Code of Civil Procedure or the Kerala Revenue Recovery Act or the Kerala Co-operative Societies Act. The payment of gratuity and other pensionary benefits due to the petitioner is governed by the provisions of WP(C) No.4792 OF 2011 CCS (Pension) Rules, 1972. 6 7 **.** Going by the Rule 71 and 73 of the above said Rules it is evident that only the dues payable to the Central Government alone can be adjusted against DCRG due to a retired employee. In Ext.P12,the Central Government had clarified that in terms of the Government of India's decision noted to Rule 73, outstanding dues of any Co-operative Societies can be recovered from the gratuity of a prematurely retired official, if he gives a declaration to his Disbursing Officer for effecting such recovery. In the case at hand, the DCRG due to the petitioner is adjusted on the basis of various attachments/prohibitory orders issued for recovery of amounts due to the first respondent, which is a cooperation owned by the State Government, and for recovery of amounts due to the 5[th] respondent, which is a Co-operative Bank . Of course, it has come out in evidence that there was also orders of attachments issued by competent civil courts in exercise of power of execution of civil decree under the Civil Procedure Code. But, while considering sustainability of Exts.P10 and P11 orders, I WP(C) No.4792 OF 2011 7 noticed the fact that the respondents 3 and 4 have not taken note of the provisions contained in the CCS (Pension) Rules or the directions contained in Ext.P12,circular. The petitioner had placed for my consideration a decision of the Honourable apex court in **Calcutta Dock Labour Board and another vs. Sandhya Mitra and others (1985 2 SCC 1 )** as well as the decision of this court in **Kunju Mohammed V.A.vs. K.S.F.E Ltd.and others (2009 4 KHC 185)** . But the question dealt in both these cases pertains to prohibitions contained in Section 13 and 14 of the Payment of Gratuity Act ,1972. Admittedly the petitioner is not an employee governed by the provisions of the Payment of Gratuity Act. Hence, the observations contained therein are not applicable in the case at hand. 8. In the statements filed on behalf of respondents 1 and 5, it is contended that the deduction is effected on the basis of specific agreement and therefore the restrains contained under CCS(Pension) Rules is not applicable when there is a specific agreement conceding that in case of default the arrears can be recovered from salary and other emoluments. WP(C) No.4792 OF 2011 8 In this regard, learned counsel appearing for the 5[th] respondent had brought to my notice the Government of India's orders below Rule 73 of the CCS(Pension) Rules, 1972, 'Order No.2' indicates that in case of prematurely retired officer, if there is any declaration given to the 'Disbursing Officers' for the recovery of outstanding dues of the Cooperative Societies from his DCRG, the same can be deducted . But it is worth noticing that the Government of India's orders in this regard is applicable only with respect to the prematurely retired employees. It is evident that the petitioner had retired from service on attaining superannuation. Learned counsel for the 5[th] respondent had further drawn my attention to a Division Bench decision of this court in **Surendran .P.S. vs. Secretary, Mavelikkara Primary Co-operative Agricultural and Rural Development Bank Ltd and others (ILR 2005 (4)(KER) 435** ). In the said decision it is held that the liability of a retired employee cannot be recovered from amounts due as DCRG unless he has consented in writing. The decision refers WP(C) No.4792 OF 2011 9 to provisions contained in Section 37 of the Co-operative Societies Rules,1967 as well as Rule 3 of Part III, K.S.R. But it is specifically held in the said decision that consent of the employee is an essential factor to effect any recovery from DCRG and such consent shall be in writing also. In case where no written consent was obtained from the employee to recover the dues from DCRG no amount can be recovered under any of the statutory provisions mentioned above. But as already mentioned, the petitioner is governed by the provisions of CCS (Pension) Rules and even the Government of India's orders appended to Rule 73 will not be applicable in the case of the petitioner, since he is not an employee prematurely retired. Therefore, the recoverability of amounts due from the DCRG, even on the basis of any consent or agreement doesn't arise. However, 5[th] respondent had very fairly conceded, referring to the agreement for recovery executed in favour of the 5[th] respondent, that there is no specific mention consenting for recovery of the amounts from the DCRG . 9. Under the above mentioned circumstances , I am of the WP(C) No.4792 OF 2011 10 view that the recovery steps initiated and the attachment / prohibitory orders issued for realising amounts due to respondents 1 and 5 from DCRG due to the petitioner is not sustainable. Therefore Exts.P10 and P11 orders issued by the respondents 3 and 4 are hereby quashed. The 6[th] respondent is directed to take necessary steps to disburse the amounts of Death-cum-Retirement Gratuity due to the petitioner, notwithstanding the attachments/prohibitory orders issued by the second respondent or by the special sale officer attached to the 5[th] respondent bank. 10. It is noticed that there were orders of attachments issued by the competent Civil Court with respect to the amounts of Death-cum-Retirement Gratuity and other pensionary benefits due to the petitioner. It is left open to the petitioner to approach the concerned court for getting such attachments lifted on the basis of the above observations, in case any attachment issued by the competent civil courts are still in force. 11. The needful steps for implementation of the above WP(C) No.4792 OF 2011 11 directions shall be taken by the 6[th] respondent at the earliest possible, at any rate, within a period of 2 months from the date of receipt of a copy of the judgment. 12. It is made clear that the findings contained herein above is only with respect to the attachment effected on the Death-cum-Retirement Gratuity and pensionary benefits due to the petitioner from the 6[th] respondent. It is left open to the respondents 1 and 5 or any other creditors to take all effective steps for realisation of the amounts legally due by proceedings against any of the assets of the petitioner. ## **C.K.ABDUL REHIM JUDGE** ## **smm** WP(C) No.4792 OF 2011 12 WP(C) No.4792 OF 2011 13