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IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Jayachandran G.S., S/o. George - Petitioner
Versus
The Principal Secretary, General Education Department Secretariat & Ors. - Respondents
W.P.(C) No. 24175 of 2020
Decided On : 17-11-2021
Death Cum Retirement Gratuity – Gratuity sanctioned been withheld on account of Exhibit P5 Non-Liability Certificate issued by the Head Master of the School - While the petitioner and his wife were in service, they stood as sureties to various chitty loans availed by the 7th respondent from the KSFE, the 5th respondent. At the time of standing as a surety, an employment certificate signed by the petitioner and attested by the Headmaster of the School, who is the drawing officer, was presented before the 5th respondent. The undertaking so given by the petitioner permitted recovery from the monthly salary at source and from the terminal and other benefits.
Finding of the Court:
Division Bench went on to hold that the language of the statute is clear and plain and it shows that the term "salary" used in Section 37 of the Act refers to periodical and monthly recurring payment to be made to the employee while in service, it will not be permissible for the court to insert, interpolate or substitute any word or expression such as "DCRG" into the provisions, to expand the meaning of the term "salary”. It was however held that consent of the employee is an essential factor to effect any recovery from DCRG and such consent shall be in writing also. In the absence of any such consent in writing, no recovery can be effected from DCRG which is payable to the employee. In the said case, no written consent was obtained from the employee to recover the dues from DCRG and it was in the said circumstances that it was held that the amount due cannot be recovered from DCRG under Note 1 to R.3 of Part III of KSR. The same is not the situation in the instant case. As held by this Court in Manni (supra), even consent given to creditor organisations like KSFE or Bank unconditionally agreeing for recovery from his retirement benefits will be sufficient compliance of Ruling 1 of R.3 Part III KSR, which authorises recovery for Government companies and other financial institutions based on consent given by the parties. In this case, consent for recovery is admittedly given to KSFE in the form of a security bond executed by the petitioner to recover the amount from salary at source and also from the terminal benefits.
Result: Disposed of
JUDGMENT :
The petitioner, while being employed as High School Assistant (SS) at St. John Higher Secondary School, retired from service on 30.4.2020. The Death Cum Retirement Gratuity (DCRG) of Rs.13,60,260/- due to the petitioner, sanctioned as per Ext.P1, has been withheld on account of Exhibit P5 Non-Liability Certificate issued by the Head Master of the School. It is mentioned in Exhibit P5 that liability to the tune of Rs.3,48,562/-stands outstanding in the name of the petitioner in view of a prohibitory order issued by the KSFE. This has led the petitioner to approach this Court with this Writ Petition.
2. The petitioner contends that the 7th respondent is a distant relative of the petitioner. While the petitioner and his wife were in service, they stood as sureties to various chitty loans availed by the 7th respondent from the KSFE, the 5th respondent. At the time of standing as a surety, an employment certificate signed by the petitioner and attested by the Headmaster of the School, who is the drawing officer, was presented before the 5th respondent. The undertaking so given by the petitioner permitted recovery from the monthly salary at source and from the terminal and other benefits. According to the petitioner, the terminal and other benefits mentioned in the employment certificate will not cover the DCRG. In view of the specific stipulation under Ruling No.1 of Chapter I of Part-III KSR, the amount due from an employee to Government Companies, Local Bodies, Co-operative Societies etc, though not treated as Government dues, can be recovered from the DCRG payable, only with the consent in writing of the employee and not otherwise. In the said circumstances, the petitioner is stated to have approached the 2nd respondent and submitted Ext.P7 representation requesting that the entire amount of DCRG be released dehors the liability shown in Ext.P5. The grievance of the petitioner is that the respondent failed to take appropriate action on his representation. It is in the said circumstances that the petitioner is before this Court seeking the following reliefs:-
ii. To issue a writ of mandamus or any other appropriate writ order or direction to the respondents to recall Ext.P5 and issue NLC of petitioner free of any liability towards K.S.F.E Ltd. within such time fixed by this Hon’ble Court.
3. A statement has been filed for and on behalf of the 5th respondent. It is stated that the petitioner along with his wife Smt. Lucy V.R, and another lady by the name of Ratnamma C., had stood as sureties for the loan availed by the 7th respondent. As the principal borrower failed to remit the amount, the KSFE initiated steps to recover the same from the guarantors. The petitioner proceeded against the property of the 7th respondent and secured a decree in his favour. Later, the property was purchased by the petitioner by initiating execution proceedings. It is further stated that the petitioner had signed and handed over Annexure-R5(A) Employment Certificate and had also consented to have the recovery effected from his salary at source and also from his terminal benefits. It is further stated that the petitioner had an option to pay the amount under the ASWAS 2020 scheme and if that option was exercised, the petitioner would be required to remit only an amount of Rs.1,41,072/-. The respondent would further state that the petitioner had given his express consent and no provisions of the KSR was violated.
4. Sri. R.T. Pradeep, the learned counsel appearing for the petitioner submitted that the surety bond executed by the petitioner is confined to recover from his monthly salary. The learned counsel would
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