A.V. Ramakrishna Pillai, J.

Aggrieved by the retention of gratuity amount due to the petitioner, who demitted her office as Helper from the service of the respondents, she has come up before this Court.

2. The petitioner who was a Helper in the Maveli Store, Vettukad, retired from the service on 31.5.2004. The petitioner alleges that she faced a disciplinary action on the allegation that she caused shortage of commodities worth 63,975/- during the period ranging from 1.4.98 to 31.12.98 and as per Exts.P4 and P5, recovery was ordered for 63,571.60 at the rate of 2,500/- per month from her salary from October, 2003 onwards till her retirement.

3. The petitioner would allege that the disciplinary action was biased and her present grievance is that as per Ext.P12, a sum of 45,130/- was ordered to be retained from the gratuity amount due to her. This, according to the petitioner is illegal.

4. I have heard the learned counsel for the petitioner and the learned standing counsel for the respondent Corporation and the learned Senior Government Pleader.

5. Though various grounds have been raised in this writ petition, the learned counsel for the petitioner gave thrust to the argument that the retention of gratuity of the petitioner by the respondent Corporation is illegal. In support of the argument, the learned counsel for the petitioner invited my attention to Rule 16 of the Helpers Service Rules, 1978, which reads as follows:

16. Disciplinary action (i) Any member of the establishment for good and sufficient reasons may be punished by imposing any of the following penalties, by the appointing authority;

Minor penalties:

(a) Censure

(b) Fine

(c) Withholding of increments with or without cumulative effect.

Major penalties:

(d) withholding of promotion.

(e) Recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of orders or otherwise;

(f) Dismissal from service.

(ii) No kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing if so demanded, to defend himself. No major penalty shall be imposed without holding a domestic enquiry. Every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded.

(iii) The Appellate Authority shall be Board of Directors of the Corporation and the appeal has to be filed within 30 days of the receipt of these orders.

(iv) A Manager of the Corporation shall also have powers to inflict minor penalties, and the Managing Director will be the appellate authority in such cases

6. It was submitted by the learned counsel for the petitioner that there is no whisper in Rule 16 regarding recovery of gratuity as a major penalty. The learned counsel for the petitioner invited my attention to two decisions of this Court wherein it was held that employer cannot deduct amounts allegedly due from employee to employer from the amount of gratuity due to employee under it. The first decision on that point is Devassia v. K.S.I.D.C [2007 (3) KLT 473]. There a forfeiture under Section 4(6) of the Payment of Gratuity Act was imposed on the employees who was permitted to retire on superannuation. Referring to the statutory provisions, it was observed by this Court that an employer is entitled to forfeit gratuity, either wholly or partly, only to the extent provided under sub section (6) of Section 4 of that Act and that provision comes into play only in cases where the services of an employee are terminated. It was, therefore, observed that it does not apply to a case where the delinquent employee was permitted to retire on superannuation.

7. The second decision cited is State Farms Corporation of India v. Mathai [2008 (2) KLT 112]. There, an employee has opted for V.R.S. Amounts due as per scheme were paid to him. When gratuity was paid,