MANAGER, KSFE Vs. K.B. UNNIKRISHNAN NAIR

JUDGEMENT

(1.) The writ petition was filed by the first respondent herein seeking a direction to his employer; the KSRTC, to disburse the gratuity amount due to him with interest. The petitioner retired from the service of the KSRTC on 31/1/2007. Even though the monthly pension, commuted value of pension and provident fund amount were sanctioned to the petitioner on his retirement, the death-cum-retirement gratuity was not sanctioned for the reason that a loan availed by another employee, to which the petitioner had stood guarantee, was in arrears, for the recovery of which proceedings had been initiated by the KSFE; the appellant herein. The demand for gratuity was opposed by the KSRTC on the ground that the petitioner had given a consent letter, agreeing for recovering the arrears from the petitioners retirement benefits and that the Kerala Service Rules being applicable to the employees of the KSRTC, recovery from gratuity can be effected from the petitioner based on his consent, as provided under Ruling No.1 in Part III Rule 3 KSR. It was also contended that the KSRTC is exempted from the provisions of the Payment of Gratuity Act, 1972 and hence, was not under any statutory obligation to disburse the gratuity, in spite of the outstanding liability.

(2.) The learned Single Judge relied on the decision in Kunju Mohammed V.A v. KSFE Ltd and others,2009 4 KHC 185 to hold that even if there is consent/agreement from the employee, that will be valid only with respect to recovery of terminal benefits other than gratuity, because gratuity stands on a different footing and is free from attachment. It was also held that in view of Ss. 13 and 14 of the Gratuity Act, the provisions of the Gratuity Act would apply, in spite of the employer being exempted under Sec. 5 of the Act. Based on the findings, the writ petition was allowed declaring that the DCRG amount due from the KSRTC to the petitioner cannot be attached or withheld to satisfy the arrears, if any, due to the KSFE. Consequently, the KSRTC was directed to disburse the amount of DCRG due to the petitioner. It was clarified that the judgment will not stand in the way of the KSFE and the revenue recovery authorities proceeding against the personal assets of the petitioner for recovery of the arrears of loan amount.

(3.) The writ appeal is preferred, aggrieved by the declaration that the DCRG due to the petitioner cannot be attached or withheld to satisfy the arrears due to the KSFE.