IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 32472 of 2008(N) -------------------------- PETITIONER(S): ----------------- K.P.KHADER, AGED 66 YEARS, S/O.AATTAKOYA, CHAMATHPURA, KAVARATTI,LAKSHADWEEP. BY ADV. SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL RESPONDENT(S): ------------------- 1. CO-OPERATIVE SUPPLY AND MARKETING SOCIETY, KAVARATTI, LAKSHADWEEP. 2. REGISTRAR OF CO-OPERATIVE SOCIETIES DEPARTMENT OF CO-OPERATION AND CIVIL SUPPLIES ADMINISTRATION OF U.T.OF LAKSHAWEEP,KAVARATTI. ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN FOR R2 SRI.N.RAGHURAJ FOR R1 SMT.K.AMMINIKUTTY FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.32472/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A PHOTOSTAT COPY OF THE LAST REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P2: A PHOTOSTAT COPY OF THE LAST REPRESENTATION SUBMITTED BY THE PETITIOENR TO THE 2ND RESPONDENT. EXT.P3: A PHOTOSTAT COPY OF THE OFFICE MEMORANDUM ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT.P4: A PHOTOSTAT COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.25642/07. EXT.P5: A PHOTOSTAT COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN RP NO.578/08. EXT.P6: A PHOTOSTAT COPY OF THE SAID ORDER ISSUED BY THE 1ST RESPONDENT. EXT.P7: A PHOTOSTAT COPY OF THE OFFICE MEMORANDUM ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXTS.OF R1 EXT.R1(a): TRUE PHOTOCOPY FO THE RELEVANT PAGES OF THE NOTES OF AUDIT FOR THE YEAR 2001-02. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 32472 OF 2008 (N) ===================== Dated this the 17th day of August, 2009 J U D G M E N T The claim in this writ petition is for release of balance gratuity that is due to the petitioner. Petitioner retired from the services of the 1st respondent as Assistant Secretary as early as on 31/3/99. He was claiming payment of gratuity and provident fund. It is stated that pursuant to Exts.P4 and P5 judgments rendered by this Court, Ext.P6 order was passed by the 1st respondent. Along with Ext.P6, the amount due towards the PF was released to the petitioner. 2. In so far as the gratuity amount is concerned, it is stated that the same has been appropriated towards the liability that the petitioner owes to the respondents and the petitioner has been called upon to remit Rs.2,92,533/-, being the balance amount that is due from him to the society. It is challenging Ext.P6 to the extent the Gratuity due to the petitioner has been forfeited, this writ petition is filed. 3. In this writ petition, the only question that this Court need consider is whether the 1st respondent was justified in WPC 32472/08 :2 : appropriating the gratuity due to the petitioner towards the liability that is allegedly due from him. Payment of gratuity is governed by the provisions of the Payment of Gratuity Act, 1972 and Section 4(6) alone permits forfeiture of gratuity. A reading of this provision itself show that only if the service of an employee has been terminated for any of the reasons stated therein, then and then alone can gratuity be forfeited. In this case, there has not been any termination of service of petitioner and on the other hand, on attaining the age of superannuation, the petitioner retired from service on 31/3/99. If that be so, circumstances justifying forfeiture of gratuity as provided in Section 4(6) of the Gratuity Act are not available to justify forfeiture of gratuity as ordered in Ext.P6. Therefore, Ext.P6 to the extent it forfeits gratuity is liable to be set aside and I do so. The 1st respondent is directed to release gratuity that is due to the petitioner within four weeks from today. 4. Petitioner also has a case that the liability indicated in Ext.P6 is incorrect and is unsustainable. This being a disputed question of fact, it requires appreciation of evidence to adjudicate the claim. Since this Court cannot decide the correctness of this WPC 32472/08 :3 : contention in a proceedings under Article 226 of the Constitution of India, it is up to the petitioner to pursue his remedies against the quantification of his liability in appropriate proceedings and the contentions raised in this behalf are left open. Needless to say that this judgment will not stand in the way of the Society also in initiating proceedings in accordance with law for enforcement of its dues. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp