IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WP(C).No. 23008 of 2011(A) ---------------------------------------- PETITIONER(S): ----------------------- AIDED SCHOOL EMPLOYEES CO-OPERATIVE SOCIETY NO.K374, MUNDAKKKAYAM, KOTTAYAM DISTRICT REPRESENTED BY THE SECRETARY MR. TONY JACOB. BY ADV. SRI.V.C.JAMES SRI.SERGI JOSEPH THOMAS RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM 695 001. 2. DEPUTY DIRECTOR OF EDUCATION THODUPUZHA, IDUKKI DISTRICT 686 101. 3. DISTRICT EDUCATION OFFICER KATTAPPANA, IDUKKI DISTRICT 686 602. 4. THE HEAD MASTER S.H.H.SCHOOL RAMAKKALMETTU 686 602. 5. K.H. HAJIRA BEEVI, PARAYOLIKKAL HOUSE PONKUNNAM PO, KOTTAYAM DISTRICT 686 001. R1 TO R3 BY GOVT. PLEADER SRI.MOHAMMED SHAFI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.23008/2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1:-TRUE COPY OF THE LETTER NO.710/0809 DT 11.2.2009 SENT BY THE SOCIETY TO THE 3RD RESPONDENT. EXT.P2:-TRUE COPY OF THE LETTER NO.710/0809 DT 11.2.2009 SENT BY THE SOCIETY TO THE 3RD RESPONDENT. EXT.P3:-TRUE COPY OF THE REGISTERED LETTER NO.350/09010 DT.19.11.09 SENT BY THE SOCIETY TO THE 3RD RESPONDENT. EXT.P4:-TRUE COPY OF THE LETTER NO.351/09010 DT.19.11.09 SENT BY THE SOCIETY TO THE 2ND RESPONDENT. EXT.P5:-TRUE COPY OF THE LETTER NO.C3-17004/08 DT 15.12.2009 SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT. EXT.P6:-TRUE COPY OF THE LETTER NO.B3-9986/09 DT 23.12.2009 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT, EXT.P7:-TRUE COPY OF THE AWARD NO.1522/2010 DT.16.9.2010. P8:- COPY OF THE EXECUTION PETITION 1020/2011 FILED BEFORE THE ARBITRATOR. P9:- COPY OF THE LETTER NO.C3 7004/08 SRS 17.1.2011 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. P10:- COPY OF THE LETER NO.665/10-11 DTD. 30.3.2011 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. P11:- COPY OF THE LETTER NO.C3 17004/08 DTD. 21.6.2011 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. RESPONDANTS'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 23008 OF 2011 -------------------------- Dated this the 25th day of August, 2011 J U D G M E N T The petitioner is a co-operative society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act' for short). It had disbursed a loan to the fifth respondent who was employed as a teacher in a Government school. The fifth respondent was guarantor to yet another loan and had also defaulted repayment of a prized chit. 2. The loan availed by the fifth respondent was to be repaid by 10.10.2007 while the fifth respondent was in service. Even though she was in default, the petitioner society did not take steps to attach her salary for recovery of the amounts due from her. The fifth respondent retired from service on 30.3.2009. Shortly before she retired from service, the Secretary of the petitioner society sent Ext.P1 letter dated 11.2.2009 to the District Educational Officer, Kattappana and Ext.P2 letter dated 11.2.2009 to the Headmaster of the school where the fifth respondent was employed, informing them that amounts are due from the fifth respondent. The Secretary of the petitioner society also requested them not to issue a non liability certificate to the fifth respondent. After the fifth respondent retired from service, the Secretary of the petitioner society sent Ext.P3 letter WPC No.23008/2011 2 dated 19.11.2009 to the District Educational Officer, Kattappana and Ext.P4 letter dated 19.11.2009 to the Deputy Director of Education, Thodupuzha once again requesting them not to issue a non liability certificate to the fifth respondent. In those letters it was stated that as on 30.11.2009 the sum Rs.5,42,625/- was due from the fifth respondent. On receipt of Ext.P4 letter, the Deputy Director of Education, Thodupuzha sent Ext.P5 letter dated 15.12.2009 to the Headmaster of the school, wherein the fifth respondent was employed, with a copy to the Secretary of the petitioner society and the fifth respondent. By that letter, the fifth respondent was called upon to produce the consent letter if any executed by her authorising the society to recover the amounts due, from her retirement benefits. The Headmaster of the school was also directed to issue the non liability certificate after the amount due is remitted by the fifth respondent. The District Educational Officer, Kattappana sent Ext.P6 letter dated nil to the Headmaster of the school requesting him to issue the non liability certificate after recovering the amounts payable by the fifth respondent to the petitioner society. Shortly thereafter by Ext.P7 award passed on 16.9.2010 in ARC No.1522 of 2010 the Arbitrator appointed by the Registrar of the Co-operative Societies permitted the petitioner society to recover the sum of Rs.2,78,845/- from the fifth WPC No.23008/2011 3 respondent with future interest on the principal sum of Rs.2,00,000/- from 1.12.2009 at the rate of 13% per annum. 3. The petitioner society did not apply for execution of the award immediately. It waited till the end of May, 2011 to move the Registrar for execution of the award. In the meanwhile, the Deputy Director of Education had sent Ext.P9 letter dated 27.1.2011 to the Secretary of the petitioner society calling upon him to submit the letter of consent if any executed by the fifth respondent to the effect that the amounts due from her may be recovered from the retirement benefits including the DCRG. The Secretary of the petitioner society thereupon sent Ext.P10 letter dated 30.3.2011 requesting the Deputy Director of Education not to issue the non liability certificate to the fifth respondent and also requested that steps should be taken to recover the amounts due from the fifth respondent. The Deputy Director of Education felt aggrieved and offended and sent Ext.P11 letter dated 21.6.2011 to the Secretary of the petitioner society informing him that the duty if any to recover the amount due to the society was on the Headmaster and that the threat held out against the Deputy Director of Education is uncalled for. The Deputy Director of Education also informed the petitioner society that in the absence of any agreement executed by the fifth respondent enabling the bank to WPC No.23008/2011 4 recover the amounts due from the DCRG, the department will be issuing the non liability certificate to the fifth respondent. Hence this writ petition challenging Ext.P11 and seeking to restrain respondents 2 to 4 from issuing a non liability certificate to the fifth respondent. 4. It is evident from the contents of Ext.P10 letter and the materials on record that the fifth respondent has not consented in writing that the amounts due from her can be recovered from the DCRG payable to her. The fifth respondent retired from service on 30.3.2009. The loan availed by her and the loan to which she was a surety became repayable even before her retirement. However, for reasons best known to the petitioner, the petitioner did not take steps to recover any amount from her salary while she was in service. It was only towards the end of February, 2009 (the fifth respondent retired from service on 30.3.2009) that the petitioner society took steps to realise the amounts due from the fifth respondent by attaching her salary. However as the fifth respondent retired shortly thereafter no recovery could be effected. A Division Bench of this Court has in Surendran v. Mavelikara Primary Co-op Agrl. & Rural Development Bank Ltd. (2005 (4) KLT 619) held that if an employee has not given a written consent, no recovery can be effected by invoking the provisions of section 37 of the Act. It was held that WPC No.23008/2011 5 the term salary occurring in rule 3 of Part III of KSR does not take in a gratuity payable to an employee. In the light of the authoritative pronouncement of this Court the petitioner cannot be heard to contend that it is entitled to recover the amount due from the fifth respondent from her gratuity. For that reason, the petitioner cannot also object to a non liability certificate being issued to the fifth respondent. If any amount is due to the petitioner from the fifth respondent, the remedy of the petitioner bank is to institute an appropriate proceedings to realise the same in accordance with the provisions contained in the Kerala Co-operative Societies Act. The petitioner cannot bypass the said remedy and seek the intervention of this Court for an order directing the respondents to refrain from issuing a non liability certificate to the fifth respondent. When the law provides other alternate remedies, the petitioner should in my opinion resort to such remedies. The writ petition fails and is accordingly dismissed without prejudice to the right of the petitioner to institute other appropriate proceedings to recover the amounts due from the fifth respondent. P.N.RAVINDRAN, (JUDGE) vps