Andhra HC (Pre-Telangana)
Balasa Rama Rao vs General Manager, District ... on 6 November, 1995
Equivalent citations: 1995(3)ALT556
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy
ORDER B. Subhashan Reddy, J.
1. This Writ Petition is filed questioning the action of the respondents in withholding the amounts payable to the petitioner towards gratuity and encashment of leave.
2. Petitioner was an employee of the 1st respondent-Bank. He retired from service, after extension, on 31-8-1993. Though he sought for release of the said amounts, the respondents did not release, instead the 2nd respondent, at the instance of the 1st respondent had initiated action for surcharging the petitioner by invoking the provision under Section 60(1) of the Andhra Pradesh Co- operative Societies Act, 1964 (hereinafter referred to as 'the Act') and consequently, a notice in Rc. No. 871 /92-C, dated 29-11-1993 was issued by the 2nd respondent. It is said that the petitioner had filed his reply and neither was enquiry conducted nor surcharge order passed. Counter-affidavit has been filed by the 1st respondent-Bank. It is stated therein that while the petitioner was working as Branch Manager or Sompeta Branch from 20-10-1990 to 20-5- 1991, there were false disbursements of long term loans to the tune of Rs. 1,82,440/- and that an enquiry was conducted under Section 51 of the Act and it was found that the said disbursements were false; basing upon which, surcharge proceedings were initiated.
3. Learned Counsel for the petitioner submits that surcharge proceedings could not have been initiated after the retirement of the petitioner. In support of her contention, she relied upon the decision in C. Ramalinga Reddy v. Non- Conventional Energy Dev. Corporation of A.P. Ltd., . The said decision dealt with the initiation of disciplinary proceedings and it was held basing on the Judgment of the Supreme Court in Assam v. Padmaram, . that after the retirement of an employee, no disciplinary proceedings can be initiated. But, this proposition is inapplicable to the facts of the instant case as what was initiated against the petitioner was surcharge proceeding and not a disciplinary proceeding. It is pertinent to mention that Section 60 of the Act does not make any exception between a present and past employee and as such, there is no bar for initiating surcharge proceedings against a retired employee. As such, I hold that the surcharge proceedings initiated above by issuing the notice dated 29-11-1993 is not without jurisdiction.
4. Learned Counsel for the petitioner further submits that even if the surcharge proceedings can go on and even if it is ultimately held against the petitioner, the amounts towards gratuity and encashment of leave payable to the petitioner cannot be withheld as they are immune from attachment.
5. Mr. Koka Raghava Rao, the learned Counsel appearing for the 1st respondent and the learned Government Pleader appearing for the 2nd respondent submit that only the amount, which is covered as a Provident Fund under Section 49 of the Act is immune from attachment and not other amounts.
6. Andhra Pradesh Co-operative Societies Act, 1964 is no doubt a special enactment and the 1st respondent is a creature under the statute. The Order or Decree passed under Section 60 of the Act is executable under Section 70 thereof. Several modes of recovery are provided under Section 70 of the Act. Under Section 72, the Registrar or any person authorised by him is deemed to be a Civil Court for the purpose of Article 182 of the First Schedule to the Indian Limitation Act while exercising the powers of executing the decree. The question now is as to whether or not the gratuity is immune from attachment and so also the amount towards encashment of leave. In exercise of the rule making power under Section 130 of the Act, A.P. Co-operative Societies Rules, 1964 (hereinafter referred to as 'the Rules') have been framed and the relevant rule is 52 relating to the execution of the orders and decrees passed by the Registrar. Rule 52(5)(o) of the Rules exempts all moveables, which are exempted under proviso to Section 60 C.P.C. [Under Section 60 of C.P.C., stipends and gratuities allowed to pensioners of the State Government or of a local authority or of any other employer are exempted from attachment or sale in execution of any decree or order. As such, this exemption, which is adopted by Rule 52(5)(o) of the Rules comes into play So far as encashment of leave is concerned, since no specific exemption is provided under the proviso to Section 60 C.P.C, the same can be a subject matter of attachment. Even before the 1976 amendment of C.P.C, there were some judgments holding that the benefit of exemption from attachment or sale provided under the proviso to Section 60(1) C.P.C. could not be waived. But, such question of interpretation is unnecessary as a specific provision - Sub-section (1-A) was incorporated after Section 60(1) in C.P.C. by way of amendment in the year 1976, expressly forbidding the waiver of the benefit of exemption provided under proviso to Section 60(1) of C.P.C.
7. In view of what is stated supra, I hold that:
(a) Section 60(1) surcharge proceedings under the Act are not disciplinary proceedings and can be initiated even against a retired employee of the Society:
(b) While the gratuity cannot be withheld pending surcharge proceedings, the amount towards encashment of leave can be withheld;
(c) The 1st respondent is, therefore, directed to pay the amount payable to the petitioner towards gratuity (excluding the amount to the extent of 1/4th, which was already paid), within a period of 15 days from the date of receipt of a copy of this order; and
(d) The 2nd respondent is directed to complete the surcharge proceedings within a period of four (4) months from the date of receipt of a copy of this order. Depending upon the outcome of the surcharge proceedings, the amount towards encashment of leave shall be dealt with. It is made clear that if the surcharge proceedings are not completed within the above stipulated time, the amount towards encahsment of leave shall also be paid to the petitioner.
8. The Writ Petition is allowed to the extent indicated above. No order as to costs.