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2017 Supreme(Mad) 3895
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. VENUGOPAL, ABDUL QUDDHOSE, JJ.
P. Gunasekaran - Appellant
Vs.
The Regional Joint Registrar, Office of the Regional Joint Registrar of Co-operative Societies, Collectorate & Ors. - Respondents
W.A.(MD) No.1432 of 2014 and M.P.(MD)No.1 of 2014 in W.P.(MD)No.17330 of 2014
Decided On : 12-10-2017
For the Appellant : Mr. D. Sadiq Raja.
For the Respondent: Mr. K. Guru Additional Government Pleader, Mr. S. Seenivasagam.
Headnote:
Payment of Gratuity Act, 1972 – Section 7(3) 3 – Tamil Nadu Co-operative Societies Act, 1983 – Section 79 – Dismissal Order – Challenged – Appellant has preferred the present Writ Appeal as an Aggrieved Person, in respect of the order, in W.P.(MD) passed by the Learned Single Judge, in dismissing the Writ Petition – Challenging the afore stated dismissal order, in W.P.(MD) passed by Single Judge, counsel for the Appellant/Petitioner submits that the Gratuity Amount of the Appellant for any reason cannot be withheld by an employer, notwithstanding the fact that an Award was passed against the Appellant and further that the matter is pending before the District Court, Ramanathapuram – According to the Learned counsel for the Appellant, as per Section 79(2)(c) of Tamil Nadu Co-operative Societies Act, 1983, the Gratuity Amount shall not be liable to be attached or subjected to any other process of any Court or any other Authority – Held, It is true that a Gratuity as payable to an employee, is not Bounty, but a valuable right and its disbursement is to be made without any delay. – Even the misappropriated amount by an employee can be adjusted against his Gratuity payable under the Payment of Gratuity Act, 1972. – It is to be noted that the remedy for non payment of Gratuity is by filing an application for recovery and not a Writ Petition, as per decision K. SHANMUGASUNDARAM v. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES (HOUSING), SALEM, reported in 2010 LLR 1004. – Appellant/Petitioner has filed the present Writ Petition praying to quash the order issued by the Third Respondent. – Further, the Appellant has sought for issuance of a direction by this Court to the Third Respondent to disburse the Gratuity sum of Rs.2,66,695/- to him together with interest within the time to be fixed by this Court. – Moreover, when CMA(CS)No.3 of 2010 filed by the Appellant was remanded back to the lower Court authority for fresh disposal, by means of an order when the matter was taken up by the Arbitrator/Deputy Registrar of Co-operative Societies, Ramanathapuram in ARC No.4 of 2015-16, a decree was passed whereby and where under, the Appellant was directed to pay a sum of Rs.90,150/- with interest at 15% till realisation. – This was again assailed by the Appellant in CMA(CS) and the order is awaited from the District Court, Ramanathapuram. – Under these circumstances, and also this Court considering the fact that the loss caused by the Appellant can be recovered from the retiral benefits (Gratuity in the present case) and also when the remedy for non payment of Gratuity is only by means of filing of an application for recovery, then the filing of the Writ Petition(MD) by the Appellant before this Court and the Writ Appeal (MD) are per se not maintainable, in the eye of Law. – Writ Appeal Dismissed
M. VENUGOPAL, J.
The Appellant has preferred the present Writ Appeal as an Aggrieved Person, in respect of the order, dated 29.10.2014 in W.P.(MD) No.17330 of 2014 passed by the Learned Single Judge, in dismissing the Writ Petition.
2. Earlier, this Court, while passing the impugned order in W.P.(MD) No.17330 of 2014 on 29.10.2014, (filed by the Appellant as Petitioner) at paragraph No.4, had observed the following :-
"4. This Court is not impressed by the arguments advanced by the Learned counsel appearing for the Petitioner. Admittedly, in the present case, the Petitioner has suffered an Award. As against the same, he filed C.M.S/CS.No.3 of 2010, on the file of the District Court, Ramanathapuram. In view of the pendency of the Appeal filed by the Petitioner, this Court is not able to find any justification or merits in the submissions made by the Learned counsel for the Petitioner. Moreover, when the Award passed against the Petitioner indicated that he is liable to pay a huge amount, this Court is unable to find any justification for releasing the gratuity amount, for the simple reason that if the amount, which has been withheld, as sought for by the Petitioner, is released. I am of the considered view that the society would not be in a position to recover the same."
and resultantly, dismissed the Writ Petition.
3. Challenging the afore stated dismissal order, dated 29.10.2014 in W.P.(MD) No.17330 of 2014 passed by the Learned Single Judge, the Learned counsel for the Appellant/Petitioner submits that the Gratuity Amount of the Appellant for any reason cannot be withheld by an employer, notwithstanding the fact that an 'Award' was passed against the Appellant and further that the matter is pending before the District Court, Ramanathapuram. According to the Learned counsel for the Appellant, as per Section 79(2)(c) of the Tamil Nadu Co-operative Societies Act, 1983, the Gratuity Amount shall not be liable to be attached or subjected to any other process of any Court or any other Authority.
Appellant's Submissions :
4. At this juncture, the Learned counsel for the Appellant brings it to the notice of this Court that in terms of Section 7(3) 3 (a) of the Payment of Gratuity Act, 1972, an employer is to take effective steps to disburse the Gratuity sum within thirty days from the date of it became payable or otherwise the said amount has to be paid with simple interest.
5. The Learned counsel for the Appellant relies on the decision of the Hon'ble Supreme Court in STATE OF JHARKHAND AND OTHERS v. JITENDRA KUMAR SRIVASTAVA AND ANOTHER reported in 2013 (4) CTC 56 at special page 63, wherein at paragraph Nos.13 to 15, it is observed as under :-
"13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.
Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property".
14. Article 300 A of the Constitution of India reads as under :
"300A Persons not to be deprived of property save by authority of Law. - No person shall be deprived of his property save by authority of Law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension wi
