V. Sukumaran Nair v. The Managing Director, Kerala Water Authority & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936** ## **WP(C).No. 4423 of 2013 (C)** **--------------------------------------** **PETITIONER:** - **-------------------** **V.SUKUMARAN NAIR, S/O.VELAPPAN NAIR, AGED 56, SUKUMARA VILASAM, ERAPPUKUZHY, KUDAPPANAKUNNU P.O, TRIVANDRUM, PIN - 695 005.** **BY SRI.S.SREEKUMAR, SENIOR ADVOCATE, ADVS.SRI.P.MARTIN JOSE, SRI.M.A.MOHAMMED SIRAJ, SRI.P.PRIJITH, SRI.THOMAS P.KURUVILLA.** **RESPONDENTS:** - **-----------------------** **1. THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM, PIN- 695 003.** **2. THE ACCOUNTS OFFICER (ESTT), FINANCE WING, JALA BHAVAN, TRIVANDRUM - 695 003.** **3. THE EXECUTIVE ENGINEER, HEAD WORKS DIVISION, ARUVIKKARA, PIN- 695 564.** **4. THE KERALA STATE CO-OPERATIVE BANK LTD., VAZHUTHACAUD BRANCH, TRIVANDRUM - REPRESENTED BY ITS SECRETARY - 695 001.** **R1 TO R3 BY SRI.JOSEPH JOHN, S.C, SRI.K.RAVIKUMAR, S.C, R4 BY ADV. SRI.GEORGE POONTHOTTAM, S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.4423/2013 - C:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1. TRUE COPY OF REPORT OF THE ACCOUNTS OFFICER.** - **EXHIBIT P2. TRUE COPY OF THE GRATUITY PAYMENT ORDER NO.7372/2827 DATED 07.07.2011 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P3. TRUE COPY OF REPRESENTATION DATED 5.10.2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P4. TRUE COPY OF THE LAWYER NOTICE DATED 12.11.2012.** - **EXHIBIT P5. TRUE COPY OF REPLY ISSUED BY THE 3RD RESPONDENT DATED 19.11.2012.** - **EXHIBIT P6. TRUE COPY OF LETTER DATED 17.11.2012 ISSUED BY THE 4TH RESPONDENT TO 1ST RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** - **EXT.R4.(a): TRUE COPY OF THE SALARY CERTIFICATE OF THE PETITIONER.** - **EXT.R4.(b): TRUE COPY OF THE AGREEMENT BETWEEN THE PETITIONER AND ASSISTANT ENGINEER, ELECTRICAL DIVISION, KERALA WATER - WORKS DTD. 08/10/2004.** - **EXT.R4.(c): TRUE COPY OF THE BORROWER'S STATEMENT OF ACCOUNTS.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.4423 OF 2013** ......................................................................... **Dated this the 9[th] July, 2014** ## **J U D G M E N T** The petitioner is stated as aggrieved of non-disbursement of DCRG payable in respect of the service rendered under the respondent Water Authority. 2. The case of the petitioner is that, while he was serving as an employee of the Kerala Water Authority, he stood as a surety before the 4[th] respondent /Kerala State Co-operative Bank for extending some financial assistance to the principal borrower. Without taking any action against the principal borrower coercive steps were taken against the petitioner effecting recovery from salary. The petitioner retired from the service on 31.03.2011. Inspite of sanctioning the retirement benefits including DCRG as borne by Exts.P1 and P2, but for disbursement of pension and commuted value of pension, DCRG is withheld, which made the petitioner to submit Ext.P3 representation dated 05.10.2012, followed by Ext.P4 lawyer notice. The petitioner was served with Ext.P5 reply by the third respondent/Executive Engineer, pointing out that DCRG has been withheld on the request made **2** ## **W.P.(C)No.4423 OF 2013** by the 4[th] respondent/Bank in view of the amount due from the petitioner/defaulter under a loan transaction. This is under challenge in this writ petition, stating that the petitioner had not given any consent to have the amount appropriated from the DCRG/terminal benefits payable to him, simultaneously adding that even if there was such a consent, it cannot be enforced against the petitioner in view of the decision rendered by this Court in _**Kunju Mohammed V.A. vs. KSFE Ltd.**_ ( **2009(4) KHC 185** ). 3. A counter affidavit has been filed by the 4th respondent/ Bank pointing out that the petitioner, admittedly had stood as a surety in connection with a loan of Rs.One lakh disbursed to the principal borrower by name Marbel Christy P.J, who was working as a 'UPSA' in the St.John's Higher Secondary School, Undencode, Trivandrum. The loan was disbursed on the basis of the salary certificates produced by the parties concerned and on the basis of the surety executed by the petitioner herein, also agreeing to have the due amount recovered from the salary payable to the petitioner and also from the terminal benefits. This being the position, the version of the petitioner that there **W.P.(C)No.4423 OF 2013** **3** was no agreement/consent to have the due amount recovered from the DCRG payable is stated as far from the track of truth. Reliance is sought to be placed on Ext.R4 (a) salary certificate and Ext.R4(b) agreement executed by the petitioner in this regard. 4. After hearing both the sides, this Court finds that by virtue of Ext.R4(b), the petitioner had agreed to have the liability cleared, in case there was default from the part of the principal borrower, by appropriating the same from the salary at source and also from the terminal and other benefits payable to the petitioner. This being the position, it is no more open for the petitioner to take a 'U-turn' to say that he had not given any consent to have the amount recovered from the DCRG and that he was only a surety. The liability of the petitioner as a surety is co-extensive as that of principal borrower and as such, it is open for the respondent Bank to proceed against both the principal borrower as well as the surety; more so in view of Ext.R4(b) agreement executed by the petitioner. The course available to the petitioner is to have the liability satisfied and then to have the same recovered from the principal borrower by way of **4** ## **W.P.(C)No.4423 OF 2013** appropriate measures. 5. There is a contention for the petitioner, as put forth by the learned Counsel for the petitioner, that the actual extent of liability was not fixed and hence the proceedings were bad. This is sought to be rebutted by the learned Counsel for the Bank, pointing out that an Arbitration case was filed before the competent authority, wherein, the petitioner was also a party and an 'Award' was passed, enabling the Bank to realise a total sum of Rs.1,22,661/- with interest at the rate of 14% on the principal amount (12% interest + 2% penal interest from 01.10.2011 along with a sum of Rs.1200/- towards arbitration fee. As it stands so, the contention does not gather any momentum at all. 6. With regard to the reliance sought to be placed on the decision in **2009(4) KHC 185 (cited supra)** , it is to be noted that the petitioner therein was an employee of the KSFE Ltd., and that the service under the said Institution was governed by the provisions of the Payment of Gratuity Act, 1972. By virtue of Sections 13 and 14 of the said Act, there was a specific bar in attaching 'gratuity' payable to the employees. It was with reference to the said provisions, and in particular, the overriding **5** ## **W.P.(C)No.4423 OF 2013** effect of the same by virtue of mandate of Section 14, it was declared by this Court that, even if there was an agreement to have the gratuity to be recovered, it was quite inoperative by virtue of the statutory bar. 7. Coming to the case in hand, the petitioner was an employee of the Kerala Water Authority, wherein the service conditions are governed by the provisions of the KSR. The learned Counsel for the petitioner concedes that the provisions of the Payment of Gratuity Act, 1972 are not attracted here. In the said circumstance, this Court finds that the law declared by this Court as per the decision in **2009(4) KHC 185** ( _cited supra_ ) does not come to the rescue of the petitioner . There is absolutely no merit or bonafides in the writ petition. Interference is declined and the writ petition is dismissed. 8. It is open for the petitioner to satisfy the due amount and to have the same recovered from the principal borrower, if the same is sustainable in accordance with law and if there is valid claim supported by actual facts and figures. No opinion is expressed with regard to the merits of the dispute between the principal borrower and the petitioner for the reason that the **6** ## **W.P.(C)No.4423 OF 2013** petitioner has not chosen to implead the principal borrower in the party array. **P.R.RAMACHANDRA MENON JUDGE** _lk_