The petitioner was working as a Secretary of the 5th respondent Society from 3.7.1984 to 29.12.2005. The grievance of the petitioner in the writ petition is with regard to the non-disbursement of terminal benefits that were due to her consequent to the termination of her employment with the 5th respondent Society. It is her case that despite Exts.P1 and P1(a) representations preferred before the 4th and 5th respondents as also Exts.P2 and P3 representations before the 1st and 2nd respondents, no action was forthcoming from the 5th respondent Society to disburse the terminal benefits that were due to her by way of gratuity, provident fund and leave surrender. It is her case that when she had represented for the disbursal of these amounts, the 5th respondent initiated proceedings against her for recovery of an amount of Rs.5,22,102.12, alleged to be the loss caused to the 5th respondent Society while the petitioner was under their service, by filing an arbitration case ARC 18/2011 before the Joint Registrar of Co-operative Societies. The petitioner would contend that the filing of Ext.P4 arbitration case is an abuse of the process and it was done deliberately with a view to delay the disbursal of the dues to the petitioner. It is contended that the provident fund dues to the petitioner could not have been the subject matter of withholding at the hands of the 5th respondent on account of the specific provisions of Section 61(2)(c) of the Kerala Co-operative Societies Act, 1969. Similarly, there was no justification in the 5th respondent Society withholding amounts due to the petitioner by way of gratuity since it was an admitted case that there was no disciplinary proceedings initiated against the petitioner while she was in the services of the 5th respondent and further, the actions of the 5th respondent Society were not based on any statutory Rules that enabled them to proceed against the petitioner subsequent to the termination of her services under the 5th respondent. It is under these circumstances that the writ petition is filed inter alia for quashing Ext.P4 proceedings as also for a direction to the 5th respondent to release the provident fund and gratuity amounts due to the petitioner forthwith. 2. A counter affidavit has been filed on behalf of the 5th respondent wherein it is pointed out that pursuant to an audit enquiry, it was found that substantial monetary loss had been caused to the 5th respondent Society on account of the actions of the petitioner and the monetary loss that was recoverable from the petitioner was to the extent of Rs.6,91,930.07 as per the audit report. It is contended that arbitration proceedings were initiated before the Joint Registrar of Co-operative Societies with a view to recover this loss sustained by the 5th respondent and during the pendency of those proceedings, the petitioner could not be heard to contend that she was liable to receive amounts by way of provident fund and gratuity. It is also pointed out that at any rate if the petitioner had any grievance against the actions of the 5th respondent Society, it was open to the petitioner to resort to the statutory remedies provided under the Kerala Co-operative Societies Act for redressing the same. The petitioner has filed a reply affidavit rebutting the averments in the counter affidavit of the 5th respondent.
3. I have heard Sri.N.Raghuraj, the learned counsel appearing on behalf of the petitioner, Sri.Naushad Thottathil, the learned Government Pleader appearing on behalf of respondents 1 to 3 as also Sri.V.Rajasekharan Nair, the learned counsel appearing on behalf of respondents 4 and 5.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that the writ petition, to the extent it impugns the action of the 5th respondent in withholding amounts that are due to the petitioner by way of employees provident fund and gratuity, must necessarily succeed. It is trite that the right of an employee to receive amounts by way of gratuity is in the nature of a property right that accrues to the employee on account of the long, continuous and unblemished service rendered by the employee to the organisation in question. There cannot be a withholding of the amounts that are due to the employee by way of gratuity unless there are statutory Rules that authorise such withholding of dues. In the instant case, it is not in dispute that no disciplinary proceedings were initiated against the petitioner for recovery of any amounts stated to be due from her consequent to her actions while working under the Society. It is also not in dispute that there were no Rules that enabled the 5th respondent Society to withhold the amounts due to the petitioner, by way of gratuity and employees provident fund, so as to justify the action of the 5th respondent Society in not disbursing these amounts. The mere fact that the 5th respondent Society has chosen to proceed against the petitioner through Ext.P4 proceedings for recovery of amounts alleged to be due from the petitioner towards the loss sustained by the Society on account of her actions, cannot be a reason to withhold amounts that are due to her by way of terminal benefits. Insofar as the said actions of the 5th respondent Society do not trace their validity to any statutory provision that enables them to do so, I am of the view that their actions cannot be legally justified. Accordingly, I dispose the writ petition with the following directions:
(i) The 5th respondent Society shall forthwith compute and disburse the entire amounts due to the petitioner by way of employees provident fund and gratuity payable to her. The 5th respondent shall disburse these amounts to the petitioner within a period of two months from the date of receipt of a copy of this judgment.
(ii) It shall be open to the 5th respondent to continue with Ext.P4 proceedings for recovery of the amounts stated to be due from the petitioner. To this end, they are permitted to withhold the amounts that are due to the petitioner by way of leave surrender pending finalization of Ext.P4 proceedings. The entitlement of the petitioner to the leave surrender amount would be determined by the outcome of Ext.P4 proceedings before the Joint Registrar of Co-operative Societies.
(iii) The payment of provident fund amounts and gratuity amounts as directed in this judgment shall also carry the statutory interest thereon for the period from when it became due to the date of actual payment by the 5th respondent Society.
A.K.JAYASANKARAN NAMBIAR JUDGE prp