ANTONY DOMINIC, J.
This appeal is filed against the judgment of the learned Single Judge in W.P.(C)No.923 of 2014. The said Writ Petition was filed by the 1st respondent, who is a widow of late Sri.A.V.Gopi, who was the Secretary of the appellant/Bank till his death on 17/3/2008. The Writ Petition was necessitated on account of the delay on the part of the appellant in disbursing amounts due to gratuity, provident fund, dearness allowance and leave surrender to the 1st respondent's deceased husband.
2. In the Writ Petition the Bank contended that her deceased husband had misappropriated an amount of ₹1,02,28,986/- and that an ARC against her and her son is pending before the Assistant Registrar of the Co-operative Societies. Therefore, the Bank contended that ₹5,40,023/- due to the deceased was adjusted towards the amount due from him pursuant to a decision taken by the Board of Directors of the Bank on 31/1/2014.
3. The learned Single Judge referred to the judgment in State of Jharkhand Vs. Jitendra Kumar Srivastava [2013 (3) KLT 782 (SC] and held that the amounts due in question cannot be withheld and on that basis directed the appellants to disburse ₹5,40,023/-, the amount admitted to be due by the appellant, to the 1st respondent and her son on their executing a bond for the aforesaid amount. It is this judgment, which is under challenge before us.
4. We heard the learned counsel for the appellant, the learned counsel for the 1st respondent and also the learned Government Pleader.
5. The contention raised by the learned counsel for the appellant is that once the employee has expired the amount due to him towards the gratuity, looses that statutory character and that the amount that is payable to the legal heirs of the deceased gets the character of the estate left behind by the deceased. Such an estate, according to the learned counsel, is not immune from attachment as provided under Section 60 of the C.P.C. In support of this contention the learned counsel for the appellant placed reliance on Sathyavathy Vs. Vijayan and others [1991 (2) KLJ Page 11]. The counsel also contended that the Bank is entitled to appropriate amounts towards the liability of the deceased in view of the provisions under Section 4(6) of the Payment of Gratuity Act. Thirdly, the learned counsel for the appellant contended that, the bank is entitled to exercise its lien on the amount due.
6. It is true that the husband of the 1st respondent committed suicide and that the amounts claimed are dues to the deceased. It is also true that in Sathyavathy’s case (supra) this Court had taken the view that the amount of Gratuity payable to legal heirs of the deceased employee is the estate left behind by the deceased and is therefore not entitled to the protection of Section 60 of the C.P.C.
7. However learned counsel for the first respondent brought to our notice the Apex Court judgment in Calcutta Dock Labour Board and another Vs. Smt.Sandhya Mitra and others [(1985) 2 SCC 1]. That was a case where gratuity amount payable to the legal heirs of a dock worker under the Calcutta Dock Labour Board was attached by Civil Court and the same was confirmed by the High Court. In the appeal that was filed, referring to the provisions under Sections 13 and 14 of the Payment of Gratuity the Apex Court held that the immunity under Section 13 of the Payment of Gratuity Act is adequate to allow the appeal and on that basis held that the attachment of the gratuity amount payable to the legal heirs of the deceased employee was immune from attachment. This judgment of the Apex Court was not noticed by the Division Bench which decided Sathyavathy’s case (supra). Therefore, in the light of the principles laid down by the Apex Court in the Calcutta Dock Labour Board case (supra), we have to accept the case of the appellant that the gratuity payable to the legal heirs of the deceased is immune from attachment.
8. Insofar as the second contention of the learned counsel that the amount is liable to be appropriated in view of the provisions contained in Section 4(6) of the Payment of Gratuity Act is concerned, according to us, this contention is untenable.
9. Section 4(6) of the Payment of Gratuity Act reads as follows:-
“4. Payment of gratuity.- (1)xxxx (2)xxxxx (3)xxxxx (4)xxxxx (5)xxxxx
(6) Notwithstanding anything contained in sub-section(1),-
(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee [may be wholly or partially forfeited]-
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.”
10. Reading of the above provision shows that this provision can be invoked only in a case where the service of the employee has been terminated for any one of the reasons mentioned in the Section. This necessarily means that the Section provides for recovery of gratuity due to an employee whose services were terminated following a disciplinary proceedings. In this case no such proceedings were initiated against the deceased and instead, his service came to end only on account of his untimely death by suicide. Therefore, Section 4(6) also cannot be invoked.
11. Insofar as the bankers lien or general lien claimed by the counsel for the appellant is concerned, the bank has a right of lien against a customer as provided under Section 171 of the Contract Act, which has also been recognized by the Supreme Court in the judgment in Syndicate Bank Vs. Vijay Kumar and others [AIR 1992 SC 1066]. Insofar as this case is concerned, the amount claimed by the 1st respondent is the terminal benefits that are due to the deceased employee, which in our view, cannot be retained by taking recourse to the lien of the bank. At any rate having regard to Section 14 of the Payment of Gratuity Act, which provides for the overriding of the said Act, this right cannot be exercised by the bank.
12. The learned counsel then contended that, having regard to the provisions of the Payment of Gratuity Act providing for recovery through an application to the controlling authority, this Writ Petition ought not to have been entertained by this Court. First of all in the Writ Petition the 1st respondent’s prayer was for a direction to the Bank to compel it to pay the terminal benefits that are due to the deceased, which are statutorily payable. In other words, what the 1st respondent was seeking was a direction to compel the appellant to perform its statutory obligation. The Writ Petition for such a prayer is maintainable as per the judgment of the Apex Court in AkalaKunnam Village Service Co-operative Bank Ltd. & another Vs. Binu N.& others [(2014) 9 SCC 294] which is directly on the point. Therefore, we are not impressed by this argument either. We do not find any merit in this appeal.
13. Counsel for the Bank lastly requested that, since the time fixed by the learned Single Judge for effecting payment has expired, one month’s time may be granted. The first respondent does not oppose the said prayer. Therefore, the appellant is allowed one month’s time from today to pay the amounts that are due to the 1st respondent and her son as ordered by the learned Single Judge.
Subject to the above, the Writ Appeal is dismissed.
ANTONY DOMINIC, JUDGE ANIL K.NARENDRAN, JUDGE skj True copy P.A to Judge