IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.12.2009
CORAM:
THE HONBLE MR.JUSTICE K.CHANDRU
W.P.No.26180 of 2004 and
W.P.M.P.No.18182 of 2006
L.A.Janardhanam ...Petitioner
Vs
1.Deputy Registrar of Co-operative
Societies,
Tirupathur,
Vellore District.
2.Gudiyatham Co-operative Primary
Agricultural and Rural Development
Bank Limited,
Rep. By its Special Officer,
50, Narimurugappa Mudali Street,
Gudiyatham 632 601,
Vellore District. ...Respondents
Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, calling for the records from the second respondent, quash the order of the second respondent dated 13.08.2004 in so far as computing the terminal benefits at Rs.7,52,203.55 towards provident fund, gratuity and encashment of earned leave instead of Rs.8,29,339 and making illegal deduction of Rs.2,75,391/- from the provident fund and gratuity payable to the petitioner from the terminal benefits illegally computed at Rs.7,52,203.55 and paying Rs.4,76,812.55 as illegal, arbitrary and contrary to law and consequently direct the second respondent to make good the short payment of Rs.3,52,526.45 towards the provident fund, gratuity and unearned leave along with interest at the rate of 18% per annum from the date when the petitioner attained age of superannuation i.e.30.06.2003.
For Petitioner : Mr.Balan Haridas
For Respondents: Mr.R.Neelakandan,G.A. For R1
Mr.M.S.Palanisamy for R2
O R D E R
Heard both sides.
2. The petitioner has filed the present writ petition seeking to challenge the order of the second respondent dated 13.08.2004 in so far as computing the terminal benefits at 7,52,203.55 towards provident fund, gratuity and encashment of earned leave instead of Rs.8,29,339/-.
3. It is contended that the respondents have made an illegal deduction of Rs.2,75,391/- from the provident fund and gratuity. Further the petitioner was paid only Rs.4,76,812.55 and the balance amount of Rs.3,52,526.45 should be paid on account of the petitioner having attained the age of superannuation on 30.06.2003.
4. The petitioner was employed as a Secretary of the second respondent Primary Agricultural Co-operative Bank (PACB). The petitioner earlier filed a writ petition being W.P.No.30222 of 2003 seeking to set aside the notice dated 20.10.2003 and for a consequential direction to settle the terminal benefits. This Court in Paragraphs 11 and 12 held as follows:
“11. …(S.Jina Chandran and others vs. The Registrar of Co-operative Societies, Madras and Others) 1999 MLJ Volume I 431 in which it was held that
“In view of the above legal position it is declared that the settlements arrived at between the Society and its employees are not liable to be unilaterally set aside by the respondents, nor can they initiate proceedings under Section 153 of the Co-operative Societies Act, nor any proceedings under Section 81 of the Act could be initiated for recovering the amount from the persons in management for allegedly paying excess amount to the employees on the basis of the settlements.
12. For the foregoing reasons, the impugned communication of the first respondent is set aside. The second respondent is directed to pass orders for the disbursement of terminal benefits of the petitioner namely Gratuity, Provident Fund, Encashment of Leave Salary as per law with interest at 12% per annum not later than two months from the date of receipt of a copy of this order.”
5. Subsequent to the direction of this Court, on the petitioner’s representation, the impugned order came to be passed. In the impugned order, it was stated that certain amounts were withheld as being excess payment which were paid in terms of settlement under Section 18(1) without proper authority and therefore, the amount cannot be paid in excess.
6. In normal circumstances, the writ petition would have been dismissed as not maintainable in the light of the larger Bench judgment of this Court in K.Marappan Vs. The Deputy Registrar of Cooperative Societies, Namakkal Circle, Namakkal and another reported in (2006 (4) CTC 689).
7. However, Mr.Balan Haridas, learned counsel for the petitioner relied upon a judgment of the Supreme Court in Jaswant Singh Gill vs. M/s.Bharat Coking Coal Ltd and others reported in (2007) 1 SCC 663. It is for the purpose of contending that once a person is allowed to retire, then no amounts can be withheld. However, if any amount liable to be forfeited, it would be only to the extent of damage or loss caused to the employer.
8. The learned counsel also placed reliance upon a decision of the Supreme Court in State of Bihar v. Pandey Jagdishwar Prasad reported in 2008 (12) SC 564 for the purpose of contending that if a person is allowed to retire in the absence of any misrepresentation or fraud, he is entitled to get all the benefits and no deduction can be made from the retirement benefits.
9. The learned counsel also placed reliance upon the judgment of this Court in I.I.558 Kuthiraichandal Primary Co-operative Bank Limited v. A.Asokan and another reported in 2009 Writ L.R. 397, wherein it is held that if there is any violation of Article 21 of the Constitution, then the writ petition is maintainable.
10. The learned counsel further placed reliance upon the judgment of this Court in A.M.Sampath vs. Bank of Baroda represented by its Chairman and Managing Director reproted in 2009 (2) L.L.N. 325 for contending that gratuity amount is a beneficial piece of legislation and it should receive an interpretation consistent with the principles of equity and fair play. In that case, the term “last drawn wage” was held to mean the actual last wages drawn by an employee and what he was entitled to get paid.
11. It is not clear as to how these judgments will have any relevance to the case on hand. If the petitioner as a matter of right is entitled to get certain amounts by way of gratuity, he should file an appropriate application under the Payment of Gratuity Act, 1972 and not to file a writ petition seeking for such benefits.
12. The Supreme Court in State of Punjab vs. Labour Court, Jullundur reported in 1981 1 LLJ 354 = 55 FJR 468 has held that the Gratuity Act is a special law which creates a new right also provides for a two tier recovery mechanism. In such circumstances, no other forum can be availed by a workman. The workman must find solution only within the forum provided therein. In the Jaswant Singh Gill’s case (cited supra) the Supreme Court itself has held that gratuity can be forfeited in case of loss to the employer. If any illegal forfeiture is made from the gratuity, the authority constituted under the Payment of Gratuity Act is entitled to go into the legality of such forfeiture if any appropriate application is made.
13. Under the circumstances, this Court is not inclined to entertain the writ petition both on the ground of maintainability as well as on the ground of an availability of a Forum under a Special law. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. The dismissal of the writ petition will not prevent the petitioner seeking such remedies as are available to him under law.
svki
To
1.Deputy Registrar of Co-operative
Societies,
Tirupathur,
Vellore District.
2.The Special Officer,
Gudiyatham Co-operative Primary
Agricultural and Rural Development Bank Limited,
50, Narimurugappa Mudali Street,
Gudiyatham 632 601,
Vellore District