IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 9275 of 2008(D) ----------------------------------- PETITIONER(S): ----------------------- V. SANKARAN KUTTY, S/O. LATE K.RAMAN NAIR, AGED 55 YEARS, ASSISTANT TEACHER (RETD.), A.U.P.SCHOOL, KULAPPULLY (RESIDING AT KOODATHIL HOUSE, P.O. KODANNUR AMMADAM, THRISSUR DISTRICT). BY ADVS.MR.V.A.MUHAMMED MR.K.E.HAMZA RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE ACCOUNTANT GENERAL (A & E), KERALA, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER, SHORNUR, PALAKKAD DISTRICT. 5. THE HEADMASTER, A.U.P. SCHOOL, KULAPPULLY, PALAKKAD DISTRICT. GOVERNMENT PLEADER MR. MUHAMOOD T.T. FOR R1-R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9275/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GRATUITY PAYMENT ORDER DT. 18.4.07. P2:- COPY OF THE LETER OF THE HEADMASTER DT. 18.5.07. P3:- COPY OF THE LETTER NO.D/42/08 OF THE ASST. EDL. OFFICER DT. 16.1.08. P4:- COPY OF THE REPLY OF THE PETITIONER DT. 4.2.08. P5:- COPY OF THE DECISION REPORTED IN 2005 (4) K.L.T. 619 DT. 9.9.05. TRUE COPY P.A. TO JUDGE TSS T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.9275/2008-WD ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11th day of June, 2009 J U D G M E N T The petitioner retired from service as Assistant Teacher from the A.U.P.School, Kulappully. Gong by Ext.P1, retirement benefits have been sanctioned to him. The D.C.R.G amount has not been disbursed so far which has prompted the petitioner to file this writ petition. After the retirement of the petitioner, he was issued with Exts.P2 and P3 by the Headmaster of the School and the Assistant Educational Officer with regard to some personal loans availed by him. By Ext.P4, he replied that he has not executed any consent to recover any loan amount from the D.C.R.G payable to him. 2. The petitioner has got a case that he had taken personal loans from different banks by offering securities but, he has not given any written consent for recovering any of those amounts from the D.C.R.G to any of those creditors. He is relying upon the decision of this Court in Surendran v.Mavelikara Primary Co-op. Agrl.& R.D.Bank Ltd. [2005 (4) KLT 619], a copy of which is produced as Ext.P5, wherein the matter was disposed of taking a view that unless there is written consent by a W.P.(C). No.9275/2008 -:2:- Government employee for effecting recovery from D.C.R.G., no such recovery can be effected. 3. In the counter affidavit filed on behalf of the third respondent, it is pointed out that the petitioner's pensionary benefits have been duly sanctioned and the Assistant Educational Officer is the pension sanctioning authority. At the time of retirement of the petitioner, there were outstanding balance in the loans availed of by the petitioner from three banks. Those bank loans were availed on the basis of the salary certificate and the undertaking given to the Headmaster of the school to recover the loan amount from his salary if he makes any default in payment. All those three banks have obtained decree, to attach his salary and assets. It is submitted that the Headmaster has recovered Rs.30,600/- at the rate of Rs.1,800/- per month till his retirement. It is pointed out that the outstanding amount in the loan account is Rs.3,74,103/-. Going by Ext.P1, the amount of D.C.R.G is Rs.2,14,151/-. 4. The question is whether in the absence of a consent in writing to recover the amount from the D.C.R.G, as provided in Rule 3 of Part III of K.S.R, the respondents can withheld the amount. Ruling 1 of Part III K.S.R states that “amounts due from a Government employee or pensioner to W.P.(C). No.9275/2008 -:3:- Government Companies, Local Bodies, Co-operative Societies, etc., thought not treated as Government dues may be recovered from the death-cum- retirement gratuity payable to him with his consent in writing.” Therefore, the recovery can be made only if there is a written consent from the employee/pensioner. Herein, going by the counter affidavit, the consent in writing was for recovery of the amount from the salary only and not from the D.C.R.G. Accordingly, an amount of Rs.30,600/- was recovered prior to his retirement. Merely because there are decrees in favour of the banks, that will not enable the respondents to recover the amount from the D.C.R.G. The crucial issue is only whether Ruling No.1 of Part III K.S.R enables the respondents to recover the amount from the D.C.R.G. The issue therefore, can be safely be concluded that unless there is written consent from a Government employee no recovery can be effected from D.C.R.G which is payable to the employee. Beyond that, the pension sanctioning authority need not go further. It is not specified in Ruling 1 of Part III K.S.R that if there is a decree, the amounts can be withheld from the D.C.R.G. In Surendran's case [2005 (4) KLT 619], it was held by the Division Bench that the term “salary” used in the relevant provision refers to periodical and monthly recurring payment to be made to the employee while in service, it W.P.(C). No.9275/2008 -:4:- will not be permissible for the court to insert, interpolate or substitute any word or expression such as “DCRG” into the provisions, to expand the meaning of the term “salary”. While interpreting the term “salary” used in S.37 of the Act will not include “DRCR”. It was held that “Ruling 1 under R.3 Part III, K.S.R also shows that the dues from a government employee or pensioner to Co-operative Societies, even though such dues are not treated as Government dues, can be recovered from death-cum-retirement gratuity payable to him under certain circumstances. But such recovery can be made only with the consent of the employee concerned, in writing. Thus it is evident from a plain reading of the above provisions that the amount which is due to the co-operative society from a government employee cannot be recovered from D.C.R.G under Note 1 to R.3 of Part III K.S.R., unless the government employee consents to such recovery in writing. Consent of the employee is an essential factor to effect any recovery from D.C.R.G and such consent shall be in writing also. In the absence of any such consent in writing, no recovery can be effected from DCRG which is payable to the employee.” 5. The said reasoning also applies to the facts of this case also. The petitioner had given consent in writing for recovery of the amount from W.P.(C). No.9275/2008 -:5:- the salary only. In that view of the matter, the petitioner is entitled to succeed in the writ petition. Respondent No.4 will therefore, take appropriate action to release the D.C.R.G sanctioned to the petitioner as per Ext.P1 and he will take immediate action to issue N.L.C to enable the petitioner to draw the amount. The above action shall be finalised within a period of one month from the date of production of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms