IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.16428 of 2011 R.Sivasamy .. Petitioner Vs. 1.The Deputy Registrar of Cooperative Society, No.82,Alagesan Nagar, Chengalpattu (Opp. Govt. Hospital), Kanchipuram District. 2.Metropolitan Transport Corporation, Employees Cooperative Thrift and Credit Society Ltd., No.JJ-99, No.20,Bashyam Street, Radha Nagar, Chennai-600 044. rep by its Secretary. 3.The Chengalpattu M.G.R. District Coop., Institutions Employees Co-op. Thrift and Credit Society cum Stores Ltd., No.GK-274, rep by its Secretary. 4.Sale Officer, No.82,Alagesan Nagar, Chengalpattu (Opp. Govt. Hospital), Kanchipuram District. 5.R.Raju .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent to pay a sum of Rs.1,95,000/- with interest which is the amount of gratuity withheld by the second respondent for which the petitioner has made a representation dated 11.05.2011 to the first respondent and marked copy to the second respondent. For Petitioner : Mr.R.Malaichamy For Respondents : Mr.L.P.Shanmugasundaram, AGP(Co.op society) https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner has filed the present writ petition seeking for a direction to the first respondent Deputy Registrar of Cooperative Society, Chengalpattu to pay a sum of Rs.1,95,000/- with interest which is the amount of gratuity withheld by the second respondent, i.e., Metropolitan Transport Corporation Employees Cooperative Thrift and Credit Society Limited, Chennai- 600 044, for which the petitioner has made a representation, dated 11.5.2011 to the first respondent with a copy to the second respondent. 2.It is the case of the petitioner that he was the Secretary of the second respondent society and had reached the age of superannuation on 30.4.2011. The fifth respondent in the writ petition was also the Secretary of the Air Force Civilian Employees Cooperative Thrift and Credit Society Limited. He borrowed loan from the third respondent, i.e., Chengalpattu M.G.R. District Cooperative Institutions Employees Cooperative Thrift and Credit Society and Stores Limited and that the petitioner stood as a surety to him. The fifth respondent had committed irregularities while he was working as a Secretary and had misappropriated the funds. He was placed under suspension. He became irregular in repayment of loan borrowed from the third respondent society. On coming to know of the same, the petitioner had requested the third respondent to take necessary action against the fifth respondent for recovery of the amount as he was having both movable and immovable properties in his name. Due to default by the fifth respondent, the appropriate authority took steps to recover the amounts by resorting arbitration under Section 90 of the Tamil Nadu Cooperative Societies Act. The Arbitrator had entertained the claim and by an Award dated 29.6.2007 held that he was liable to pay a sum of Rs.1,58,960/-. Thereafter, execution proceedings were initiated in E.P.No.361 of 2007 by the Sale officer who is the fourth respondent. Pursuant to the execution proceedings, the second respondent had withheld a sum of Rs.1,95,000/- to satisfy the arbitration award. Therefore, the petitioner was not paid gratuity. The petitioner sent a representation, dated 11.5.2011 stating that the firth respondent is having sufficient funds and has become crorepathi. There was also surcharge proceedings pending against him. Hence the amount of gratuity and the other benefits payable to him cannot be withheld by the second respondent. It is in that premises, the writ petition came to be filed. 3.It is not clear as to how such a writ petition is maintainable since the relief asked for is essentially a relief against the second respondent society of which the petitioner himself was a Secretary. No such writ petition will lie in the light of the larger bench judgment of this court in K.Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal Circle, Namakkal-636 001 and another reported in 2006 (4) CTC 689. Even otherwise, the petitioner never raised any dispute either by arbitration proceedings or by execution proceedings initiated by https://hcservices.ecourts.gov.in/hcservices/ the third respondent. The counsel for the petitioner solely relied upon the lack of power on the part of the authorities to attach the petitioner's terminal benefits including gratuity as it will be violative of Section 60(g) of CPC and Sections 13 and 14 of the Payment of Gratuity Act, 1972. 4.In this context, the learned counsel for the petitioner relied upon a judgment of this court in CRP(PD)No.1162 of 2003, dated 20.10.2003 in Sathiyabama and others Vs. M.Palanisamy and others (CDJ 2003 MHC 1676). Reliance was placed upon the following passages found in the said judgment which reads as follows: "In Union of India V. Wing Commander (1987) 1 SCC 551), the Supreme Court held that Section 11 of the Pensions Act protects from attachment, seizure of sequestration, pension or money due or to become due on account of any such pension and this would include the commuted pension also. 7.In Gopalachariar V. Deepchand Sowcar (AIR 1941 Madras 207),, this court held that after commutation of pension or a portion thereof, it ceases to be pension and becomes a capital sum, still the payment of the commutation amount being a payment on account of the pension, falls within the protection of Section 11 of the Pensions Act. 8.As regards the gratuity, in a decision reported in Calcutta Dock Labour Board V. Sandhya Mitra (1985) 2 SCC 1), the Supreme Court, in a case very similar to the case on hand held that the gratuity payable to a dock worker under a scheme, is not liable to attachment. In that case, one Md.Safiur Rehman was the employee of the Calcutta Dock Labour Board. He was entitled to gratuity. The respondent before the Supreme Court filed a suit for recovery of the amounts against legal representatives of the said Md.Safiur Rehman and prayed for attachment of the gratuity payable to the said employee. The Board objected to it. The Chief Judge of Small Causes Court overruled the objection. Against that the appellants moved the High Court at Calcutta and contended that the gratuity payable to the workman was not liable to attachment. A Division bench of the High Court of Calcutta affirmed the order of the Chief Judge of the Small Causes Court. In appeal by the Board the Supreme Court referred to Sections 13 and 14 of the Payment of Gratuity Act and held that the preamble of the Act clearly indicates the legislative intention tht, the Act sought to provide a scheme for payment of gratuity to all employees like the employee of the Calcutta Dock Labour Board and that the gratuity payable to him squarely came within the purview of the Act and was entitled to https://hcservices.ecourts.gov.in/hcservices/ immunity under Section 13 of the Act. The Supreme Court therefore, allowed the appeal and held that the view of the High Court that the gratuity payable to Md.Safiur Rehman was liable to attachment was erroneous. This being the legal position, I am bound to follow the same.9.It is therefore clear that these amounts which are payable to employees, so that they would not be left resourceless at the time of retirement are exempted for attachment, whether they are payable to the employee or to his legal representatives. The various decisions referred to above also indicate that whether the employee has retired, or has become insolvent or has died the character of these amounts do not change so long as they are in the hands of the employer. The immunity from attachment is complete...." 5.However, the said judgment only referred to Section 60(g) CPC and Section 13 of the Payment of Gratuity Act. But the said fact overlooks Section 48 of the Tamil Nadu Cooperative Societies Act, 1983 which reads as follows: "48(2)(a)Where any such agreement as is referred to in sub section (1) has been executed by a Member of a registered Society, the Employer or the officer disbursing the salary or wages of such Member shall, on receipt of a requisition from the Society, make the deduction from the salary or wages or the gratuity, as the case may be, payable to the Member in accordance with the requisition, and pay, within such time as may be prescribed in respect of any Society or class of Societies, the amount so deducted, to the Society". 6.In the light of the said legal position and due to lack of maintainability of the writ petition, the writ petition will stand dismissed. However, there will be no order as to costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vvk To 1.The Deputy Registrar of Cooperative Society, No.82,Alagesan Nagar, Chengalpattu (Opp. Govt. Hospital), Kanchipuram District. https://hcservices.ecourts.gov.in/hcservices/ 2.The Secretary, Metropolitan Transport Corporation, Employees Cooperative Thrift and Credit Society Ltd., No.JJ-99, No.20,Bashyam Street, Radha Nagar, Chennai-600 044. 3.The Secretary. The Chengalpattu M.G.R. District Coop., Institutions Employees Co-op. Thrift and Credit Society cum Stores Ltd., No.GK-274, 1 cc to M/s.R.Malaichamy, Advocate, Sr.No.42750 ORDER IN W.P.NO.16428 of 2011 PA {CO} TP/21.7.2011. https://hcservices.ecourts.gov.in/hcservices/