D. Hari Paranthaman, J.

1. The petitioner was initially appointed as Salesman in the third respondent-Society in 1986, was promoted as Writer and further promoted as Senior Writer. After putting in 30 years of service, he retired on 30.04.2015. No departmental/criminal proceedings are pending against him. Based on surcharge proceedings, he was not paid the retiral benefits like Provident Fund (both employer and employees' contribution), Earned Leave encashment, Gratuity, etc. Hence, he filed this Writ Petition. The second respondent passed the impugned order, directing the third respondent not to disburse the retiral benefits, as the surcharge proceedings are pending against the petitioner. The surcharge proceedings had not attained finality, as the matter is seized of by the Principal District Court, Namakkal. The petitioner made representation dated 06.05.2015 before the respondents 1 and 2 for settlement of the above said retiral benefits.

2. Heard the learned counsel for the petitioner and the learned Government Advocate appearing for the respondents 1 and 2 and perused the material documents available on record. Since the impugned order in the Writ Petition is passed by the second respondent-Deputy Registrar of Co-operative Societies, it is not necessary to issue notice to the third respondent-Society.

3. If the petitioner is governed by the provisions of the Payment of Gratuity Act, the gratuity payable to him on retirement, cannot be with-held by the employer on any account other than the reasons given under the provisions of the said Payment of Gratuity Act. The respondents 1 and 2 cannot with-hold the gratuity on the ground that the surcharge proceedings are pending against the petitioner.

4. On the other hand, if the provisions of the Payment of Gratuity Act are not applicable to the case of the petitioner, the issue will be governed by Section 79 of the Tamil Nadu Co-operative Societies Act, which is extracted hereunder:

"Section 79: Gratuity Fund-(1) A registered society not being an establishment to which the Payment of Gratuity Act, 1972 (Central Act 39 of 1972) applies, may provide in its by-laws for payment of gratuity to the employees at such rates and on such conditions as may be specified in the by-laws and such society may establish a Gratuity Fund or make other arrangements for the purpose.

(2) A Gratuity Fund, if any, established by a registered society under sub-section (1) shall be invested in the financing bank, but shall not--

(a) be used in the business of the society;

(b) form part of the assets of the society;

(c) be liable to attachment or be subject to any other process of any Court or other authority."

5. A reading of the above extracted Section 79 makes it clear that the provisions of the Payment of Gratuity Act, are being incorporated therein, the gratuity earned by an employee for rendering service, cannot be with-held at the time of retirement.

6. It is also relevant to notice the fact that the third respondent-Society is a non-pensionable establishment and only retirement benefits like Gratuity are being paid to its employees.

7. Equally, it is also worthwhile to be noted that the Provident Fund cannot be with-held. While a certain amount is being deducted towards the PF contribution from the salary of employees like the petitioner herein, matching contribution is made by the employer and disbursed at the time of retirement of an employee.

8. If the establishment like the third respondent-Society is governed by the Employees' Provident Funds and Miscellaneous Provisions Act, then the petitioner shall be paid the contribution made by him at the time of retirement, and the petitioner is entitled to pension as provided under the scheme provided under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act.

9. If an employee is not governed by the Employees' Provident Funds and Miscellaneous Provisions Act, the same are not applicable to the employees like the petitioner workin