THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT PETITION No.7732 of 2018

ORDER:

This Writ Petition is filed seeking the following relief:

“…to issue an order or a direction one in the nature of writ of mandamus declaring the action of the respondent in releasing the Gratuity of the petitioner as illegal, contrary to law, right to property and judicia precedents and be pleased to pass such other order or orders...”

2. Heard Mr. J.C.Francis, learned counsel for petitioner, and Mr. G.R.S.Akhileswar, learned counsel representing Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India, for respondents.

3. Brief facts of the case:

Petitioner, an employee of Indian Institute of Surveying and Mapping Survey of India, retired as a Supervisor on attaining the age of superannuation. A suit bearing O.S.No.1684 of 2013 was filed by one Mr. M.Mark before the I Additional Senior Civil Judge at LB Nagar, for recovery of more than 8 lakhs. I.A.No.75 of 2014 came to be filed in O.S.No.1684 of 2013 seeking a Garnishee order. Trial Court vide order dated 24.02.2014 issued prohibitory order to Garnishee not to release the suit amount out of retirement benefits of petitioner herein (Mr. M.Hanumanth Rao), subject to Section 60 of Code of Civil Procedure, 1908 (for short ‘CPC’).

4. Petitioner approached the department and informed that gratuity component cannot be withheld. Respondents declined to consider his request. Action of respondents in withholding the gratuity under Section 60 of CPC, 1908, is challenged as illegal. Hence, writ petition.

5. Learned counsel for petitioner submitted that petitioner was appointed on 28.07.1978 in Indian Institute of Surveying and Mapping, Survey of India, and retired as Supervisor on attaining the age of superannuation on

28.02.2014. It is further submitted that petitioner had qualifying service of 35 years, 07 months and 04 days and that during his entire career, there were no complaints against him. It is also submitted that petitioner submitted Form-7 (form for assessing pension/family pension and gratuity) to the concerned authorities.

6. It is submitted that one Mr. M.Mark filed a suit bearing O.S.No.1684 of 2013 before the I Additional Senior Civil Judge at LB nagar, for recovery of an amount of more than 8 lakhs and that the suit is pending for adjudication. It is further submitted I.A.No.75 of 2014 in O.S.No.1684 of 2013 was filed under Order XXI Rule 46 read with Order XXXVIII Rule 5 of CPC, seeking a direction to withhold the retirement benefits by way of Garnishee and that by order dated 24.02.2014, the trial Court issued prohibitory order not to release the amount subject to Section 60 of CPC. It is contended that petitioner approached the department and stated that the gratuity component cannot be withheld as per the order of the trial Court and that in spite of the same, respondent authorities have not released the gratuity, which is illegal and contrary to the law.

7. Learned counsel for petitioner relied on the judgment of Hon’ble Supreme Court in Union of India v. Radha Kissen Agarwalla and another, [AIR 1969 SUPREME COURT 762] for the proposition that attachment of gratuity amount cannot be done.

8. No counter affidavit is filed by respondents. Learned counsel for respondents submitted that Court ordered not to release amount out of retirement benefits, and the Court order is being implemented.

9. Heard learned counsels, perused the record and considered the rival submissions.

10. Petitioner was an employee in the Indian Institute of Surveying and Mapping, Survey of India, and retired as Supervisor on attaining age of superannuation on 28.02.2014. It is not in dispute that petitioner was entitled for pension and gratuity. Ex.P2 is a copy of the order passed by learned I Additional Senior Civil Judge at LB Nagar in I.A.No.75 of 2014 in O.S.No.1684 of 2013. On perusal of the order, it is observed that Mr. M.Mark, plaintiff in O.S.No.1684 of 2013, filed I.A.No.75 of 2014 under Order XXI Rule 46 re