Retirement benefits including gratuity cannot be withheld solely due to an ongoing disciplinary action.

JUDGMENT The petitioner retired from the service of the 3^rd respondent Society as its Secretary on 31.05.2023. Earlier, he was promoted to the said post on 01.08.2019. Prior to his promotion as above, one Sri C.P. Najeeb was functioning as the Secretary of the 3^rd respondent Society. Sri C.P. Najeeb was to retire on 01.08.2019. By Ext.P1, the Managing Committee of the Society, on 24.07.2019, took a decision to extend all retirement benefits to Sri C.P. Najeeb. On the basis of the decision at Ext.P1, after the petitioner had taken charge as Secretary, the retirement benefits were extended to Sri C.P. Najeeb. Later, on 30.05.2023 – one day earlier to the petitioner’s retirement – a charge memo at Ext.P2 was served on the petitioner, essentially alleging that on account of disbursement of retirement benefits to Sri C.P. Najeeb as above, the Society had suffered a loss of more than Rs.28 lakhs. It is also alleged that no Non-liability Certificate (NLC) was issued to Sri C.P. Najeeb. The petitioner, in such circumstances, is before this Court seeking the following reliefs:

“i) issue a writ of mandamus or any other writ, order or direction to the 3rd respondent to disburse Gratuity, Provident fund, Welfare Fund and leave surrender benefits due to the petitioner, within two weeks.

ii) issue a writ of mandamus or any other writ, order or direction to the 3rd respondent to pay interests at the rate of 10% for the delayed payment of retirement benefits;

iii) issue a writ of certiorari or any other writ or order to quash Ext.P2;

iv) declare that retirement benefits of an employee including provident fund and DCRG cannot be withheld beyond the period of 30 days;

v) declare that no disciplinary proceedings can be conducted against an employee of a Co-operative Society, after retirement.”

2. Heard Sri M. Sasindran, the learned counsel for the petitioner, as well as Sri Liji Vadakkedom, the learned counsel for the respondent Society.

3. Sri M. Sasindran, the learned counsel for the petitioner, at the outset itself, points out that he is not challenging the charge memo at Ext.P2. According to him, the only prayer in the writ petition is for a direction to the respondents to disburse the gratuity, provident fund, etc., and the petitioner would be satisfied if appropriate directions are issued to the 3^rd respondent to disburse the gratuity payable to the petitioner under the provisions of the Payment of Gratuity Act , 1972. The afore submission made by Sri M. Sasindran is recorded. However, it is made clear that the petitioner would be free to point out his defence before the respondents with respect to the charge memo at Ext.P2.

4. Therefore, the only issue arising for consideration is as to whether the petitioner is entitled to a direction to the 3^rd respondent to disburse the gratuity as above. It is the contention of the petitioner that in so far as only a charge memo has been issued, the gratuity requires to be disbursed with reference to the provisions of the Payment of Gratuity Act .

5. The entitlement as regards the payment of gratuity qua the employees of a Co-operative Society has arisen for consideration before a Division Bench of this Court in Mohanan Nair P.G. v. Omallur Service Co-operative Bank Ltd. No.Q 228 and others [2022 KHC 433]. There, admittedly, no charge memo was issued to the petitioner therein. However, the Division Bench of this Court categorically found that the payment of gratuity is with reference to a Central Act and, in view of the fact that the gratuity requires to be disbursed as above, it would have an overriding effect with refere