Andhra HC (Pre-Telangana)
T. Prabhakar Rao vs Registrar Of Co-Operative Societies, ... on 5 August, 2003
Equivalent citations: 2003(5)ALD747, 2003(6)ALT97, (2004)ILLJ131AP
ORDER V. Eswaraiah, J.
1. The petitioner questions the action of the respondents in not releasing the gratuity amount. At the time of his retirement Surcharge Proceedings are pending and therefore the said amount has been deposited in the FDR bearing No. 13575, dated 3-10-2000, in the joint names of himself and the 3rd respondent.
2. An amount of Rs. 2,71,500/-, payable to the petitioner towards his retirement benfits, has been deposited in the joint account, by the 2nd respondent, on the strength of the undertaking given by the petitioner to share the responsibility of the amount, if any, fixed by the Court/Authority in the Surcharge Proceedings in Rc.4507/ 90/C, dated 28-12-1991.
3. It is stated that the total amount deposited in the FDR pertains to the gratuity and leave encashment. Insofar as the leave encashment amount is concerned, the respondents have every right to recover the same, subject to the result of the Surcharge Proceedings, but the amount pertains to the gratuity of the petitioner, is concerned, the same cannot be attached or recovered in any manner.
4. The petitioner retired as Manager of the Hyderabad District Co-operative Central Bank. While he was in service an enquiry under Section 51 of the A.P. Cooperative Societies Act, 1964 (for short 'the Act') vide Proceedings dated 21-8-1989 was ordered and the enquiry report under Section 51 of the Act, was submitted on 19-1-1990. Based on the said report, the District Co-operative Officer, Ranga Reddy District, issued orders directing the 3rd respondent to place the petitioner and others under suspension. Accordingly, the petitioner was suspended on 11-8-1990. A domestic enquiry has been initiated to impose punishment under service conditions and the Surcharge Proceedings were initiated to recover the misappropriated amounts. Insofar as the domestic enquiry is concerned, the 3rd respondent by his Proceedings Memorandum No. Admn/Est/91-92/1453, dated 5-2-1992, decided to withhold two stagnation increments with cumulative effect and the same has become final and the petitioner is not aggrieved of it. Insofar as the Surcharge Proceedings against the petitioner and 13 others covered by Proceedings in Rc.4507/90/C, dated 28-12-1991, the 2nd respondent held that they are jointly and severally responsible for misappropriation of Rs. 10,12,883/- along with 18% interest there under with effect from 27-7-1988, till the date of realization, against which the petitioner filed C.T.A.No. 45 of 1996, before the Co-operative Tribunal (for short 'the Tribunal'), Hyderabad, along with 13 others, who also suffered under the same Surcharge Proceedings along with the petitioner. The Tribunal allowed the C.T.A. by order dated 24-10-1998, setting aside the Surcharge Proceedings order, on the ground that the same was passed without giving an opportunity to the petitioners therein and accordingly, the matter was remanded back to the 2nd respondent, to conduct enquiry in accordance with Section 60 of the Act.
5. Questioning the order of the Tribunal the respondent-bank filed Writ Petition No. 5770 of 1999 and the same was dismissed confirming the order of the Tribunal.
6. It is stated that pursuant to the remand order of the Tribunal, Proceedings have been initiated by the 2nd respondent under Section 60 of the Act, fixing the date of hearing as 22-6-2003, and same are still pending. Therefore, it is stated that the said Gratuity Amount deposited in the FDR No. 13575, dated 3-10-2000, cannot be allowed be withdraw by the petitioner.
7. The only question that arose for consideration in this writ petition is whether the respondent-bank can withhold the gratuity amount.
8. Section 73 of the A.P. Co-operative Societies Act, reads as follows:
"73. Attachment of property before decision or order :--If the Registrar is satisfied on application, report, inquiry or otherwise that any person with intent to delay or obstruct the enforcement of any decision or order that may be made against him under the provisions of this Act-
(a) is about to dispose of the whole or part of his property; or
(b) is about to remove the whole or any part of his property from the jurisdiction of the Registrar, the arbitrator or liquidator, as the case may be, he may, unless adequate security is furnished direct the attachment of the said property, and such attachment shall have the same effect as if made by a competent Civil Court."
9. No doubt the Registrar has got the power to attach certain properties under Section-73 of the Act, but Rule 52 of the A.P. Co-operative Societies-Rules, 1964 deals with the procedure in execution of decrees, decisions or orders. Rule 52(5)(o), is to the effect that the movable properties exempted from attachment under proviso to Section 60 of the Code of Civil Procedure, 1908, shall not be liable to attachment or sale under these Rules.
10. Under Section 60 of the Code of Civil Procedure, certain properties are liable to attachment and sale in execution of decrees, but certain properties are not liable for attachment or sale. Section 60(1)(g) of the Code of Civil Procedure, speaks that the gratuity amount, payable to the employees, is not liable for attachment or sale.
11. Section 13 of the Payment of Gratuity Act, 1972, is to the effect that the gratuity payable under the Act, to an employee, in any establishment, shall not be liable to attachment in case of any decree by any Court.
12. Similarly, under Rule 14 of the Payment of Gratuity Rules, no gratuity payable under the Gratuity Act and the Rules made therein shall be liable to attachment in execution of any decree or order of any Court.
13. Therefore, there is complete protection in attachment or recovery of the gratuity amount payable to the retired employees, in any manner. The employees are protected from recovery of the gratuity amount by any office bearers or even by the employer.
14. In the instant case, merely because the petitioner has given consent by way of an undertaking, to keep his retirement benefits in the joint names of himself and the 3rd respondent and will take the interest every month, subject to the result in the Surcharge Proceedings, the respondents cannot withhold the gratuity amount also along with other retirement benefits, contrary to the Sections and Rules referred supra.
15. In the present case, insofar the gratuity amount is concerned, the respondents have no authority, whatsoever, to withhold or continue to deposit the same in FDR, and the writ petition is liable to be allowed.
16. Accordingly, the respondents are directed to release the gratuity amount payable to the petitioner from the said FDR, within four weeks from the date of receipt of a copy of this order.
17. If ultimately any orders are passed in the Surcharge Proceedings, making the petitioner liable to pay certain amounts to the respondent-bank, it is open for the respondents to recover the same from the petitioner by attachment or sale of immovable or movable properties, other than the gratuity, in accordance with law.
18. Subject to the above observation, the writ petition is allowed, but, in the circumstances, without costs.