IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(C).No. 18806 of 2009(U) --------------------------------------- PETITIONER(S): --------------------- C. SASIKUMARAN NAIR, AGED 58 YEARS, S/O.CHELLAPPAN PILLAI, UNDER SECRETARY TO GOVERNMENT (RETIRED), GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, NOW RESIDING AT “AYILYAM, MARWELL-B-44, SREEMANGALAM LINE, MARUTHOOR KADAVU, KARAMANA P.O., TRIVANDRUM. BY ADV. MR.B.HARISH KUMAR RESPONDENT(S): ------------------------- 1. THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (SPL. B) DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. SECRETARY, GOVERNMENT GAZETTED OFFICERS CO-OPERATIVE SOCIETY, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A& E), AG'S OFFICE, THIRUVANANTHAPURAM. 4. KERALA LOK AYUKTA, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. R1 TO R5 BY GOVERNMENT PLEADER MR.ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 18806/2009-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 27/10/2006. EXT.P2: COPY OF THE GRATUITY PAYMENT ORDER DATED 30/03/2007 AND 17/10/2007. EXT.P3: COPY OF THE ORDER IN I.A. NO.411/2008 DATED 17/07/2008 PASS BY THE FOURTH RESPONDENT. EXT.P4: COPY OF THE SECURITY BOND DATED 22/03/2003. EXT.P5: COPY OF THE CIRCULAR 59/04/FIN DATED 06/11/2004. EXT.P6: COPY OF THE ORDER DATED 29/05/2009 PASSED BY THE FOURTH RESPONDENT. EXT.P7: COPY OF THE UO NOTE DATED 25/10/2006 AND 20/11/2006. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.18806 OF 2009 (U) -------------------------------------------------- Dated this the 21st day of October, 2009 J U D G M E N T Petitioner entered service as LDC in the Land Revenue Department on 17.9.1975 and retired as Under Secretary on 31.10.2006. On retirement by Ext.P1 pension was sanctioned to the Petitioner and Ext.P2 Gratuity Payment Order was also issued. However, gratuity was not released as Non Liability Certificate was not issued for the reason that the petitioner had certain liability to the 2nd respondent. 2. Thereupon he filed complaint No.178/08 before the Kerala Lok Ayukta. Before the Lok Ayukta the Government justified the delay in issuing the NLC on the ground that the petitioner had liability towards two financial institutions, namely, Kerala State Financial Enterprises and Kerala Government Officers Co-operative Society, the 2nd respondent herein. It is stated that pursuant to the above development, the 2nd respondent herein was also impleaded as 2nd respondent in the proceedings before the Lok Ayukta. 3. The 2nd respondent contended that the petitioner had entered into loan agreement with them and had consented for realising the WPC.No.18806/09 :2 : outstanding from the DCRG amount as well. They produced Ext.P4 before the Lok Ayukta which shows that there is specific undertaking on the part of the petitioner that if he retires, the outstanding can be recovered from the gratuity due. In view of Ext.P4, Lok Ayukta dismissed the complaint as per Ext.P6. It is challenging Ext.P6 and praying for the issuance of NLC that this writ petition is filed. 4. Counsel for the Petitioner contends that, under Section 37 of the Kerala Co-operative Societies Act which governs the 2nd respondent, recovery can be effected only from the salary and therefore recovery proposed from the DCRG is illegal. Counsel also relied on the judgment of this court in Surendran V. Mavelikara Primary Co-operative Agrl. & R.D. Bank Ltd. (2005(4) KLT 619). 5. Petitioner is covered by the provisions of KSR. Ext.P4 is an agreement where petitioner has consented for recovery from the DCRG. If that be so there is no reason why the amount shall not be recovered from the DCRG due to the petitioner. In view of Ext.P4 agreement where the petitioner has consented for recovery, Section 37 of the Kerala Co-operative Societies Act has no applicability and is not relevant. As far as the judgment relied on by the counsel for the petitioner is concerned, that case WPC.No.18806/09 :3 : dealt with the agreement between the parties which only provided for recovery from the salary and not from the DCRG, as in this case. Taking note of this factual position, this court held that proposal for recovery from DCRG was impermissible. 6. In view of the obligations created by Ext.P4, and the agreement enabling recovery from DCRG, the principle laid down in that judgment can be of no assistance to the petitioner. 7. In view of Ext.P4, since recovery from DCRG is possible and as liability is outstanding, I cannot find fault with the Lok Ayukta for having dismissed the Petitioner's complaint by Ext.P6. 8. Further, since the DCRG is still remaining outstanding, there arise no question of issuing any direction to the respondent to issue NLC certificate as well. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/