M.N. Sarojini Marotticka Parambil v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 29TH DAY OF OCTOBER 2012/7TH KARTHIKA 1934** **WP(C).No. 20346 of 2008 (R) ---------------------------** **PETITIONER:** **----------** **M.N.SAROJINI MAROTTICKA PARAMBIL, KANJIRAMATTOM P.O., ERNAKULAM** **BY ADVS.SRI.M.R.NANDAKUMAR SRI.SAJI KURIACHAN** **RESPONDENTS:** **-----------** **1. STATE OF KERALA AND OTHERS REP. BY CHIEF SECRETARY TO GOVERTNMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM** **2. THE HIGH COURT OF KERALA** - **REP. BY REGISTRAR (SUBRODINATE JUDICIARY)ERNAKULAM** ## **Addl.3. THE MANAGER** **K.S.F.E, VYTTILA BRANCH, ERNAKULAM.** **Addl.4. THE SECRETARY** **GOVERNMENT SERVANTS CO-OPERATIVE BANK LTD.NO.50 ERNAKULAM.ADDL. R3 & R4 ARE IMPLEADED AS PER ORDER DATED 22/07/2008 IN IA 9282/2008.** **R,R3 BY ADV. SRI.M.SASINDRAN, SC, K.S.F.E., LTD. R,ADDL.R4 BY ADV. SRI.M.M.MONAYE R,ADDL.R4 BY ADV. SRI.M.PAUL VARGHESE R,R2 BY ADV. SRI.ELVIN PETER P.J. RR2 BY ADV. SRI.A.M.ANTONY, SC, KERALA STATE FINANCIAL ENTERPRISES LTD. R BY GOVERNMENT PLEADER SRI. LIJU V. STEPHEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SCL.** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 20346 of 2008 --------------------------------Dated this the 5th day of April, 2013 ## JUDGMENT Deceased husband of the petitioner was an employee of the State Government as Process Server. He retired from service on 30.4.2001, while working at the Sub Court, Muvattupuzha. Issue involved in this writ petition is regarding non payment of DCRG due to the petitioner's husband. It is evident from Ext.P1 that the DCRG due was computed and authorised for payment. But the payment was not effected since 'non-liability certificate' was not issued. The petitioner made a representation before the Registrar of this court which was answered in Ext.P4, stating that deceased husband of the petitioner had a liability of Rs.1,06,644.35 towards KSFE (Additional R3) and a sum of Rs.64,495/- towards Government Servants Co-operative Society (Additional R4). Since the above said creditors have requested not to issue NLC, the same cannot be issued. Ext. P6 is the WP(C). 20346 /2008 2 reply issued by the Sub Judge, responding to Ext.P5 representation submitted by the petitioner, mentioning about the liabilities mentioned above. According to the petitioner, going by Rule 3 of Part III of KSR, especially Ruling No.1 contained therein, the amount due to respondents 3 & 4 cannot be recovered from DCRG due to the petitioner's husband. It is contended that the petitioner has not executed any agreement with respondents 3 or 4 authorising deduction of any amount from the DCRG. Hence withholding of payment is not legally justified, is the contention. 2. Along with the counter affidavit of the 4[th] respondent, various documents such as loan applications submitted by the deceased husband of the petitioner and agreements of guarantee executed are produced. Referring to those documents learned counsel for the petitioner contended that what was agreed upon is only a deduction from the salary and there is no specific agreement authorising any deduction from the DCRG. Per contra, learned Standing Counsel for the 4[th] respondent contended that the agreements of guarantee (Ext.R4(c) and WP(C). 20346 /2008 3 Ext.R4(d) contain a clause to the effect that, in default the amount can be recovered from the movable and immovable properties of the loanee as well as the guarantor. Learned counsel appearing for the 2[nd] respondent had filed counter affidavit in which it is stated that the 'non-liability certificate' was not issued on the basis that requests were received from additional respondents 3 and 4 intimating about the liability and requesting to recover the amount from the DCRG. 3. Admittedly the deceased husband of the petitioner was an employee of the State Government who was entitled for payment of DCRG by virtue of provisions contained in the relevant service rules. Rule 3 of part III KSR deals with the procedure with respect to withholding or withdrawing of pension of retired Government employees. Note 2 to Rule 3 specifies that the word pension used in Rule 3 does not include death cum retirement gratuity and the liabilities fixed against an employee can be recovered from the DCRG payable to him, even without departmental or judicial proceedings. But Rule 3 deals with withholding or withdrawing of pension and other amount and WP(C). 20346 /2008 4 recovery of Government dues from the benefits due to a retired employee. Ruling (1) appended to Rule 3 of Part III specifically provides that, the amounts due from a Government employee or pensioner to Government Companies /Local Bodies, Cooperative Societies etc. are not treated as Government dues. It provides that such dues can be recovered from the DCRG payable to the Government employee with his consent in writing. Section 37 of the Co-operative Societies Act enables that any society can enter into an agreement with its member, provided that his employer or disbursing officer shall be competent to deduct any amount which may be specified in the agreement, out of the salary or wages payable to him and to make payment of such amount so deducted. Sub section (2) of section 37 says if such an agreement is executed the employer or disbursing officer, if so required by the society in writing, should make adjudication in accordance with the agreement and shall pay the amount so adjudicated by the society. But question arises as to whether an agreement executed under the purview of section 37, authorising the disbursing officer to make such deduction out of the salary or WP(C). 20346 /2008 5 wages will empower an employer/disbursing officer to make any deduction out of the DCRG payable. The question came up for consideration before this court in _**Surendran vs. Mavelikkara Primary Co-operative Bank Ltd. (2003 KHC 1083)** ._ A learned Judge of this court observed that the provision in section 37 can only be understood as an enabling provision for recovery of the dues and a strict interpretation that salary paid from month to month alone could have been recovered, will be basically erroneous. Therefore in view of section 37 of the Cooperative Societies Act the ruling contained in Part III KSR will not be applicable, is the finding. But a different view was taken by a Division Bench in a Writ Appeal filed by the petitioner therein, in _**Surendran vs. Mavelikkara Primary Co-operative Bank Ltd. (2005 (4) KLT 619).**_ The Division Bench observed that the expression “salary” used in section 37 of the Co-op. Societies Act will not include DCRG and dues to a Co-op. Society from its member cannot be recovered from the DCRG, under the provisions of section 37, in view of Rule (3) of Part III KSR, unless the Government employee sanction to such recovery. WP(C). 20346 /2008 6 4. In view of the legal position remaining settled as above, I am of the opinion that there is an express prohibition under Ruling No.1 appended to Rule 3 of part III KSR from withholding or withdrawing pension or from recovery of any amount from death cum retirement gratuity payable to Government employees, unless a specific consent in writing given to that effect. Learned counsel for the 4[th] respondent placed reliance based on Ext.R4(c) and R4(d) that any emoluments belonging to the loanee or guarantor is liable to be attached and the amount due to the Society can be recovered from such employees. Of course any amount in the hands of the defaulters are liable to be recovered. But, here the question is regarding withholding of payment of DCRG or with respect to legality of attachment of DCRG. He had also pointed out a decision of this court in **Joseph vs. Dy Tahsildar (2001(1) KLT 192).** Referring to section 80 of the Kerala Revenue Recovery Act 1968 this court held that restrictions imposed by virtue of section 60 of the CPC which covers attachment of “salaries or allowances and debts due to a defaulter” will not apply in the case of attachment of WP(C). 20346 /2008 7 gratuity under revenue recovery proceedings. This is because of the fact that gratuity is not exempted by virtue of section 60 of the CPC. 5. But the question whether any prohibition imposed with respect to attachment and recovery of DCRG payable to a Government employee by virtue of the provisions contained in the KSR has not been adverted to in the said decision. This court is of the opinion that the Kerala Service Rules as a special statute governing payment of amount due by way of DCRG to retired employee, the provisions contained therein with the restrictions carried thereon will apply in the case of revenue recovery proceedings also. 6. Under the above mentioned circumstances, the writ petition is allowed and respondents 1 and 2 are directed to take steps to instruct the disbursing officer to take appropriate steps for payment of DCRG admissible and payable to the deceased husband of the petitioner. Payment shall be effected to the legal WP(C). 20346 /2008 8 heirs in accordance with law, after complying with the required procedural formalities. Steps shall be taken in this regard to effect payment at the earliest possible. Pmn/ C.K.ABDUL REHIM, JUDGE WP(C). 20346 /2008 9