Kerala High Court
Mercy John vs State Of Kerala on 19 February, 2026
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 19TH DAY OF FEBRUARY 2026 / 30TH MAGHA, 1947
WP(C) NO. 28140 OF 2023
PETITIONER/S:
MERCY JOHN,
AGED 58 YEARS
W/O. ANTONY THOMAS, NJALLANIYIL HOUSE, ANAKKAL.P.O., KALAKETTY,
KOTTAYAM DISTRICT., PIN - 686508
BY ADVS.
SHRI.M.SASINDRAN
SRI.S.SHYAM KUMAR
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
COLLECTORATE P.O., KOTTAYAM DISTRICT, PIN - 686002
3 THE CHIRAKKADAVU SERVICE CO-OPERATIVE BANK LTD.NO.2057,
H.O.CHIRAKKADAVU, CHIRAKKADAVU.P.O., KOTTAYAM DISTRICT, REPRESENTED
BY THE SECRETARY, PIN - 686520
4 THE MANAGING COMMITTEE,
CHIRAKKADAVU SERVICE CO-OPERATIVE BANK LTD.NO.2057,
H.O.CHIRAKKADAVU, CHIRAKKADAVU.P.O., KOTTAYAM DISTRICT., PIN -
686520
BY ADVS.
GOVERNMENT PLEADER
SRI.LIJI.J.VADAKEDOM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2026, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) No.28140 of 2023
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JUDGMENT
The petitioner retired from the service of the 3 rd
respondent Society as its Secretary on 31.05.2023. Earlier, he
was promoted to the said post on 01.08.2019. Prior to his
promotion as above, one Sri C.P. Najeeb was functioning as
the Secretary of the 3rd respondent Society. Sri C.P. Najeeb
was to retire on 01.08.2019. By Ext.P1, the Managing
Committee of the Society, on 24.07.2019, took a decision to
extend all retirement benefits to Sri C.P. Najeeb. On the basis
of the decision at Ext.P1, after the petitioner had taken charge
as Secretary, the retirement benefits were extended to
Sri C.P. Najeeb. Later, on 30.05.2023 – one day earlier to the
petitioner’s retirement – a charge memo at Ext.P2 was served
on the petitioner, essentially alleging that on account of
disbursement of retirement benefits to
Sri C.P. Najeeb as above, the Society had suffered a loss of
more than Rs.28 lakhs. It is also alleged that no Non-liability
Certificate (NLC) was issued to Sri C.P. Najeeb. The petitioner,
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in such circumstances, is before this Court seeking the
following reliefs:
“i) issue a writ of mandamus or any other writ, order
or direction to the 3rd respondent to disburse
Gratuity, Provident fund, Welfare Fund and leave
surrender benefits due to the petitioner, within two
weeks.
ii) issue a writ of mandamus or any other writ, order
or direction to the 3rd respondent to pay interests at
the rate of 10% for the delayed payment of
retirement benefits;
iii) issue a writ of certiorari or any other writ or order
to quash Ext.P2;
iv) declare that retirement benefits of an employee
including provident fund and DCRG cannot be
withheld beyond the period of 30 days;
v) declare that no disciplinary proceedings can be
conducted against an employee of a Co-operative
Society, after retirement.”
2. Heard Sri M. Sasindran, the learned counsel for
the petitioner, as well as Sri Liji Vadakkedom, the learned
counsel for the respondent Society.
3. Sri M. Sasindran, the learned counsel for the
petitioner, at the outset itself, points out that he is not
challenging the charge memo at Ext.P2. According to him, the
only prayer in the writ petition is for a direction to the
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respondents to disburse the gratuity, provident fund, etc., and
the petitioner would be satisfied if appropriate directions are
issued to the 3rd respondent to disburse the gratuity payable
to the petitioner under the provisions of the Payment of
Gratuity Act, 1972. The afore submission made by
Sri M. Sasindran is recorded. However, it is made clear that
the petitioner would be free to point out his defence before the
respondents with respect to the charge memo at Ext.P2.
4. Therefore, the only issue arising for consideration
is as to whether the petitioner is entitled to a direction to the
3rd respondent to disburse the gratuity as above. It is the
contention of the petitioner that in so far as only a charge
memo has been issued, the gratuity requires to be disbursed
with reference to the provisions of the Payment of Gratuity
Act.
5. The entitlement as regards the payment of gratuity
qua the employees of a Co-operative Society has arisen for
consideration before a Division Bench of this Court in
Mohanan Nair P.G. v. Omallur Service Co-operative
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Bank Ltd. No.Q 228 and others [2022 KHC 433]. There,
admittedly, no charge memo was issued to the petitioner
therein. However, the Division Bench of this Court
categorically found that the payment of gratuity is with
reference to a Central Act and, in view of the fact that the
gratuity requires to be disbursed as above, it would have an
overriding effect with reference to the relevant provisions of
the Co-operative Societies Act. The provisions of Rule 198(7)
of the Kerala Co-operative Societies Rules provide for
non-disbursement of retirement benefits in the circumstances
stated therein. In the case at hand, admittedly, a charge
memo has been issued as evidenced by Ext.P2. Sri Liji, the
learned counsel for the Society, would therefore state that the
disciplinary proceedings were pending on the date of
retirement of the petitioner. However, in my opinion, mere
pendency of the proceedings pursuant to the issuance of the
charge memo, would not attract the provisions of Rule 198(7)
and (8) of the Kerala Co-operative Societies Rules and even
on the face of the afore, the question arises as to whether the
petitioner is required to be extended gratuity as prayed for in
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this writ petition. The issue as above has also been considered
in Mohanan Nair (supra) in the following lines:
“31. In view of the abovesaid provisions contained in
Sec. 13 of the Payment of Gratuity Act, 1972, Sec. 60(1)
proviso (g) of the CPC, S. 10 of the EPF Act, etc. such
retiral benefits like gratuity, provident fund, etc., are not
liable for attachment in the adjudicatory proceedings.
The abovesaid position of law is elementary and is
clarified and declared. So, even if respondents 1 and 2
propose to initiate any such proceedings under the
Kerala Co-operative Societies Act, such proceedings that
may be initiated in future cannot be a bar for this Court
to direct the release of the pensionary benefits like
gratuity provident fund, etc. in this case.”
6. The Division Bench of this Court has thus found
that in so far as gratuity shall not be withheld except with
reference to the mandate under the provisions of Section 4(6)
of the Payment of Gratuity Act, the entitlement of the
petitioner also requires to be considered with reference to the
afore provisions. It is not in dispute that the provisions of
Section 4(6) of the Payment of Gratuity Act provide for
non-extension of gratuity only in a situation where an
employee is “terminated from service”. In the case at hand,
the petitioner had admittedly retired from service on
31.05.2023. There has not been any termination as regards
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the petitioner herein. It is only a case where a charge memo
has been issued on 30.05.2023, one day earlier to the
retirement. Therefore, in my opinion, the principles laid down
in Mohanan Nair (supra) would apply.
7. To the same effect is the judgment of the learned
Single Judge of this Court in Annamma Mathew v.
Managing Committee of the Mavelikkara Taluk
Cooperative Bank Ltd. [2024 (6) KLT 683], wherein also
this Court has held that the provisions of the Payment of
Gratuity Act would override the provisions of the Kerala
Co-operative Societies Rules.
8. In W.A. No.220 of 2022 also, the Division Bench of
this Court, by judgment dated 21.02.2022, found that in so far
as the Payment of Gratuity Act requires disbursement of
gratuity within a time frame from the date of retirement,
unless and until the proceedings required thereunder are
initiated, the gratuity requires to be paid to the employee.
9. On the basis of the afore, prima facie, I am of the
opinion that the gratuity requires to be disbursed to the
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petitioner.
10. However, Sri Liji, the learned counsel for the
respondent Society, sought to place considerable reliance on
the principles laid down by another Division Bench of this
Court in Yadava S. v. Kerala State Co-operative Bank,
Tvm and Others [2022 (6) KHC 109]. That was a case
where the disciplinary proceedings were initiated prior to the
retirement of the employee, as in this case. With reference to
the afore position, the Division Bench of this Court found that
the retiral benefits require to be extended only upon the
finalisation of the disciplinary proceedings. But in my opinion,
the principles laid down therein would not have any application
to the facts and circumstances of the case at hand, since the
Division Bench was only considering the question with
reference to the provisions of Rule 198(7) of the Kerala Co-
operative Societies Rules. A reading of the judgment would
not show that the Division Bench considered the issue as to
whether gratuity was also required to be paid to the employee
in that case. Here, Sri Liji sought to rely on the observations in
paragraphs 4, 8 and 11 of the judgment to contend that
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pension as well as ‘gratuity’ were also considered by this
Court. However, on a careful analysis of the judgment, in my
opinion, the Court was only considering the issue as regards
the disbursement of retirement benefits. If the question of
gratuity was also required to have been considered, the
Division Bench would have definitely made reference to the
provisions of the Payment of Gratuity Act. However, the
judgment of the Division Bench does not make any reference
to the provisions of the Payment of Gratuity Act. Therefore, in
my opinion, the judgment of the Division Bench in Yadava
(supra) would not apply to the case at hand.
11. Sri Liji would also seek to rely on the judgment of
the Apex Court in Chairman-cum-Managing Director,
Mahanadi Coalfields Limited v. Rabindranath Choubey
[2020 KHC 6401]. The afore case considered the question as
to whether gratuity requires to be extended to an employee
who was employed with Mahanadi Coalfields Limited, to whom
the Coal India Executives’ Conduct, Discipline and Appeal
Rules, 1978 (CDA Rules) were applicable. The Apex Court,
even on the face of the provisions of the Payment of Gratuity
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Act, more particularly Section 4(6), made reference to the
mandate under Rules 34.2 and 34.3 of the CDA Rules,
extracted in paragraph 21 of the judgment, to find that a
separate treatment had been visualised with reference to the
initiation of disciplinary proceedings against an employee
working in Mahanadi Coalfields, providing that even after
retirement there would be a deemed continuance of
proceedings, and that is why the Apex Court found that a
different treatment was required to be extended in that case.
In my opinion, in so far as there is no corresponding provision
under the Kerala Co-operative Societies Act or the Rules, the
learned counsel Sri Liji would not be justified in seeking to rely
on the principles laid down by the Apex Court in Mahanadi
(supra).
12. This Court also notices that in Mohanan Nair
(supra), the aforesaid issue was specifically considered,
holding that the issue is left open for consideration at an
appropriate stage in paragraph 38(e). However, on a careful
analysis of the provisions of the Act and the Rules, I do not
find any corresponding provision under which the disciplinary
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proceedings initiated against the petitioner would entitle the
respondents to refuse disbursal of gratuity to the petitioner.
13. In such circumstances, I am of the opinion that
the petitioner is entitled to succeed. Therefore, this writ
petition stands allowed, directing the 4 th respondent herein to
disburse the gratuity payable to the petitioner under the
provisions of the Payment of Gratuity Act within a period of six
weeks from the date of receipt of a copy of this judgment. The
issue as regards the entitlement for interest under the
provisions of the statute is left open to be adjudicated before
the competent authority. The entitlement of the petitioner with
reference to the provident fund, etc., is also left open for
consideration at an appropriate stage.
Sd/-
sab HARISANKAR V. MENON
JUDGE
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APPENDIX OF WP(C) NO. 28140 OF 2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE RELEVANT EXTRACTS
FROM THE MINUTES OF MEETING OF THE 4TH
RESPONDENT DATED 24.07.2019
Exhibit P2 A TRUE COPY OF THE CHARGE MEMO DATED
30.05.2023 ISSUED BY THE 4TH
RESPONDENT ON 31-05-2023
Exhibit P3 A TRUE COPY OF THE RELEVANT EXTRACT
FROM THE CASH CREDIT ACCOUNT OF THE
PETITIONER'S DAUGHTER NAMELY MARY ANN
THOMAS
Exhibit P4 A TRUE COPY OF THE CERTIFICATE DATED
30-07-2019, ISSUED IN RESPECT OF THE
FORMER SECRETARY NAJEEB C.P.,
DECLARING THAT THERE ARE NO DUES
RESPONDENT EXHIBITS
Exhibit R3(a) A copy of the report dated 22.1.2022
submitted by the Assistant Registrar
of Co-operative Societies,
Kanjirappally before the 2nd
respondent
Exhibit R3(b) A copy of the Certificate dated
30.7.2019
Exhibit R3(c) The copy of the notice dated 26.2.2024
issued by the Convener of the Sub
Committee of the Chirakkadavu Service
Co-operative Bank to the petitioner
Exhibit R3(d) The copy of the reply dated 11.3.2024
submitted by the petitioner in answer
to Exhibit R3(c) notice
Exhibit R3(e) A copy of the decision dated 18.3.2024
passed by the Sub Committee of the
Chirakkadavu Service Co-operative Bank
Exhibit R3(f) THE COPY OF THE INQUIRY REPORT DATED
2.1.2026 SUBMITTED BY ADVOCATE V.D.
JOSEPH, ENQUIRY OFFICER BEFORE THE
DISCIPLINARY COMMITTEE
