IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 16427 of 2006(E) -------------------------------------- PETITIONER(S): ------------------------ 1. K.G. UNNIKRISHNAN, 49, S/O. GOPALAN NAIR, KOTHEDATH PARAMBU, PALLURUTHY, OCHI-6. 2. T.J. PAUL, 45, S/O. T.P. JOSEPH, THALAMITTATH HOUSE, CHERANELLOOR, KOCHI-34. BY ADVS. SMT.S.K.DEVI MR.K.P.PRADEEP (PAYYANNUR) RESPONDENT(S): -------------------------- 1. THE AREA MANAGER, FOOD CORPORATION OF INDIA, DISTRICT OFFICE KANDAMKULATHY TOWERS, M.G. ROAD, KOCHI-11. 2. THE SECRETARY, FOOD CORPORATION OF INDIA, EMPLOYEE'S CO-OPERATIVE SOCSIETY LTD., KOCHI-11. 3. M.B. VIJAYARAGHAVAN NAIR, MULLEPPILLIL HOUSE, PALLIPARAMBUKARA ROAD, VYRELIL NAGAR, TRIPUNITHURA, ERNAKULAM. 4. AMBIKA VIJAYARAGHAVAN NAIR, W/O. M.B. VIJAYARAGHAVAN NAIR, MULLEPPILLIL HOUSE, PALLIPARAMBUKARA ROAD, VYRELIL NAGAR, TRIPUNITHURA, ERNAKULAM. R1 BY ADVS.MR.P.JACOB VARGHESE, SC, FCI, MR.VIVEK VARGHESE P.J.. R2 BY ADVS. MR.M.M.MONAYE, MR.M.PAUL VARGHESE, MR.M.S.BREEZ. SRI.VARGHESE C.KURIAKOSE FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, ALONG WITH WPC. NO.35005 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.16427/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF NOTICE DTD. 19.1.05. P2- COPY OF ORDER NO.VIH 4(6) /2004DTD. 13.12.05. P3:- COPY OF THE INTIMATION DTD. 10.4.06. P4:- COPPY OF THE REQUEST DTD. 26.5.05. P5:- COPY OF THE REQUEST DTD. 26.5.06. P6:- COPY OF THE LETTER NO.ESTT/14(1)/2006 DTD. 5.6.06. P7:- COPY OF CONSENT ISSUED BY THE 3RD RESPONDENT NO.89/2003-04 DTD. NIL. R2(a):- COPY OF THE LETTER DTD. 4.1.06 SENT TO THE FOOD CORPORATION OF INDIA. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) Nos.16427/06 & 35005/08 -------------------------------------------------- Dated this the 8th day of October, 2009 J U D G M E N T WP(c).No.16427/06 is filed by two employees of the Food Corporation of India, who were sureties to a loan availed of by the 3rd respondent from the 2nd respondent, a Co-operative Society of the Employees of the FCI, which has filed WP(c). No.35005/08. 2. The facts as pleaded in WP(c).No.16427/06 are that Sri. M.B. Vijayaraghavan Nair, the 3rd respondent herein, had availed of four loans from the Co-operative Society, out of which the petitioners herein were sureties to two of them. Going by the pleadings of the Society, towards those two loans Rs.1,51,539/- and Rs.1,52,415/- are due. In addition towards the other two loans, namely, Educational loan and Festival loan, Rs.5,886/- and Rs.3,065/- is stated to be the liability. 3. By Ext.P2 order dated 13.12.2005, the FCI terminated the service of the 3rd respondent and thereafter the Society issued Ext.P3, claiming the amount that was then due and requested the FCI to recover and effect payment of its dues. It WPC.Nos.35005/08 & anor. :2 : would appear that the petitioners herein being the sureties also made Exts.P4 and P5 representations requesting that recovery of the dues to the Society be effected from the terminal benefits that are remaining unpaid. They have also produced Ext.P6, a certificate issued by the FCI on 5.6.2006 that an amount of Rs.4,06,449/- is due to the 3rd respondent. When the petitioners apprehended recovery proceedings against them, they filed this writ petition praying that the FCI be directed to realise the dues of the Society, of which they are sureties, from the terminal benefits that are due. In this writ petition, this court has passed orders requiring the FCI not to release the payment that is due and it is stated that the amounts have been withheld. 4. In so far as WP(c).No.35005/08 is concerned, that is filed by the Society, impleading the principal debtor, sureties and FCI and the princpal debtor's wife and praying that the FCI should retain the terminal benefits that are due to the first respondent. The writ petition was filed at a time when according to the Society, the 6th respondent, wife of the principal debtor had obtained an order from the Additional Chief Judicial Magistrate Court, Ernakulam under the provisions of the Protection of Women WPC.Nos.35005/08 & anor. :3 : from Domestic Violence Act, requiring the FCI to deposite the terminal benefits that are due with the Court. It is stated that such an order was obtained by misrepresentation and collusion between the principal debtor and wife in order to defeat the claim of the society. In this case also this court passed an order restraining the FCI not to release the amounts that are due 5. In both these writ petitions the principal debtor Sri. Vijayaraghavan Nair has not entered appearance. On the other hand his wife who is also a respondent in these writ petition has entered, filed counter affidavits and is hotly contesting the cases. Her contention appears to be that there is a decree of maintenance by the family court. There is an order passed by the Chief Judicial Magistrate and there is also a decree passed against the principal debtor. She also pleads that the principal debtor has absconded and if the entire amount due to the Society is realised as prayed for, nothing will be available to be paid to her. On behalf of the wife it is also contended that the remedy available to the petitioners in WP(c).No.1647/06 is to discharge the dues of the society and take recovery action for realising the liability discharged by them. WPC.Nos.35005/08 & anor. :4 : 6. In WP(c).No.25005/08 the Society has filed a reply affidavit producing sale deed executed by the principal debtor in favour of his wife, on 4.10.2008 selling him property to her. By producing this document the society wants to contradict the claim of the wife of the principal debtor that the principal debtor has absconded. 7. I have considered the submissions made. Going by Ext.P6, certificate issued by FCI and produced in WP(c). No.16427/06 towards the gratuity an amount of Rs.1,62,732/- is due to the principal debtor, Sri. Vijayaraghavan Nair. It is also seen that towards the Contributory Provident Fund, the amount available with the FCI is R.2,43,717/-. In so far as the amount of gratuity that is available is concerned, recovery from gratuity can only be in terms of the provisions contained in the Payment of Gratuity Act. Section 4(6) of the Payment of Gratuity Act provides the circumstances in which, gratuity can be forfeited. This case does not disclose any of those circumstances and if that be so, no part of the gratuity can be forfeited. Therefore, recovery from the amount available towards the gratuity is impermissible. WPC.Nos.35005/08 & anor. :5 : 8. Now what is available is the amount under the Contributory Provident Fund Scheme of the FCI. On the basis of the Regulation governing the scheme, recovery is possible only for realising FCI's own dues. 9. Although in the counter affidavit filed, the FCI has not pleaded that any amount is due to it, the wife of the principal debtor has a case that money is due to FCI. In my view that is a matter for the FCI to verify and if any amount is due, FCI is always at liberty to appropriate the same. Although, the petitioners cannot in law, insist that FCI or Society should recover the available amount from the provident fund and remit it to the Society, on equitable considerations, I see absolutely no reason to decline this prayer, if as stated by the wife, the principal debtor is absconding and as at present he is also left without any property, especially after the execution of sale deed No.3644/06 in favour of his wife, even if the petitioners/societies paying the liability, I do not think that these will be anything left to be proceeded against to recoup the amount spent by them. Say so for the further reason that even the wife has no case that the defaulter husband has any other item of property. Therefore, WPC.Nos.35005/08 & anor. :6 : there is absolutely no reason to decline the prayer sought for. 10. Hence, FCI is directed to pay the amount available in the Contributory Provident Fund, after adjusting its dues if any, to the Society in discharge of the liability of the Principal Debtor to the Society. Once the amount is paid as above, if the full liability is not discharged, it will be open to the Society to proceed for recovery of the balance amount. Writ Petitions are disposed of as above. (ANTONY DOMINIC) JUDGE vi/