JUDGMENT : (Prayer: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of 1st respondent in G.O.Ms.No.61, dated 17.04.2015 and the 2nd respondent in Na.Ka.No.1249/2006-07/E1, dated 19.06.2015 and quash the same and consequently, direct the 2nd respondent to pay the amount due and payable to the petitioner towards retiral benefits including gratuity.) 1. This Writ petition has been filed to call for the records relating to the 1st respondent in G.O.Ms.No.61, dated 17.04.2015 and the 2nd respondent in Na.Ka.No.1249/2006-07/E1, dated 19.06.2015 and quash the same and consequently, direct the 2nd respondent to pay the amount due and payable to the petitioner towards retirement benefits including gratuity. 2. The facts that are necessary for this Writ Petition are as follows: (i) One S. Pethuraj, on 08.05.1995 applied for consumer loan for purchase of Colour TV, one Washing Machine and Mixie along with a quotation issued by the Virudhunagar District Consumer's co-operative Wholesale Stores Ltd., Virudhunagar for Rs.30,350/- towards the cost of those material in the Market Committee Yard Branch of the second respondent Bank. Though the applicant complied with all necessary formalities when the Branch Manager of the Bank raised doubt about his repaying reliability the petitioner came forward to rescue of the applicant, by executing an undertaking stating that he was well aware of the applicant assured that certainly the applicant would repay the loan if sanctioned to him and in case of default he would recover the same at his own risk. In view of the above assurance/undertaking by a Bank Staff/the petitioner, the second respondent Bank necessarily had to relay upon the same and sanctioned that loan, accordingly on 29.04.1995 the loan as claimed was sanctioned by way of consumer goods loan repayable by 36 equal monthly installments at Rs.630/- per installment. Procedurally, the amount sanctioned has to be disbursed through cheque to the supplier accordingly a cheque in favour of the Virudhunagar District Consumers Co-operative wholesale stores was released by the Branch Manager of the Market Committee Yard Branch of the second respondent Bank for Rs.30,350/- (Rs.7,670/- = 25% of the total cost collected as margin money + Rs. 22,680/-] towards the cost of materials to be supplied to the loanee. The loanee did not repay the loan and the repeated demands sent to him ended in vein. 22,680/-] towards the cost of materials to be supplied to the loanee. The loanee did not repay the loan and the repeated demands sent to him ended in vein. So the Market Committee Yard Branch Manager of the 2nd respondent Bank sent a report to the Head Office that the loanee was not available in the office at where he said to have been employed. It had become impossible for the Branch Manager to recover the dues from the loanee. He also intimated about the undertaking given by the petitioner Mr. Ramanathan, so the petitioner may be instructed to recover the loan as per his undertaking. (ii) In pursuance of the above report the second respondent through the Memo dated 22.01.1997 instructed the petitioner to recover the dues from the loanee within 15 days, vide his undertaking. A further instruction was also issued on 06.03.1997 reiterating the Memo dated 24.01.1997. But, the petitioner did not take steps either to recover or repay himself the dues under those circumstances procedurally a dispute was raised by the second respondent Bank under Section 90 before Circle Deputy Registrar of Co-operative Societies against the loanee in ARC.No. 895/98-99 on 07.12.1998. Though it was decreed the loanee was not available in the last known address for recovery and no trace of valuable properties in his possession to execute the Decree was found. (iii) At that juncture, the petitioner crossed the age of superannuation hence, his back papers were verified and found that the above loan issued on his strong recommendation/undertaking had become sticky with no means to recover the dues from the loanee or his sureties. Hence, the second respondent while allowing the petitioner to retire from service on 28.02.2007 imposed a specific condition that the petitioner should give an undertaking to abide with all the actions that may be taken against him in case of any default in recovery of loans, or other losses caused by him or audit objection if any noted in the future. (iv) The petitioner instead of taking steps fulfill his undertaking, kept quiet but pressing for his retiral benefits by sending a representation dated 09.04.2007. (iv) The petitioner instead of taking steps fulfill his undertaking, kept quiet but pressing for his retiral benefits by sending a representation dated 09.04.2007. So, the second respondent Bank through the proceeding dated 31.08.2007 informed the petitioner that as a security towards the pending recovery of the said loan to which he executed undertaking Rs.1,00,000/- was withheld form his retiral benefits and after clearance of the loan the remaining, if any be paid to him. Opposing the said proceeding the petitioner send an objection dated 25.09.2007 accusing the second respondent. (v) The petitioner tried to vindicate his manipulated grievance by invoking the jurisdiction under Section 153 of the TNCS Act alleging that the second respondent illegally withheld the said amount thereby, he was denied his gratuity and so on. His revision petition was taken into file by the Joint Registrar of Co-operative Societies, Madurai Region in Na.Ka.No.4589/08 SaPa and after hearing both parties passed an order dated 15.03.2010 dismissing the revision petition. Aggrieved over the said order the petitioner preferred Review Petition under Section 154 of the TNCS Act before the first respondent. The first respondent after hearing both parties passed the order in G.O.Ms.No.61, dated 17.04.2015 dismissing the same on merits which is now impugned herein. He attained the age of superannuation on 22.02.2007 when he was at last working as an Assistant Manager. On 08.05.1995, he gave a letter of undertaking to sanction consumer loan to one Mr. S. Pethuraj. (vi) After dismissal of the second revision petition by the first respondent, the second respondent had sent a cheque for Rs.1,00,000/- to the fourth respondent Bank for adjusting the loan availed by Pethuraj. 3. After hearing the rival submissions made by the parties, the contesting second respondent has filed an additional typed set of papers regarding the office memo issued to the petitioner on 06.03.1997 and the Special By-Law 18(2) and (3) and the demand notice taken to the petitioner vide decree passed in ARC.No.895/98-99, dated 15.03.2011. 4. Admittedly, the petitioner herein is an employee of the respondent Bank and for the loan availed by one Mr. S. Pethuraj, he has given a letter dated 08.05.1995 stating that in the event of non collection of the loan amount, he will take steps to collect the said loan amount. 5. 4. Admittedly, the petitioner herein is an employee of the respondent Bank and for the loan availed by one Mr. S. Pethuraj, he has given a letter dated 08.05.1995 stating that in the event of non collection of the loan amount, he will take steps to collect the said loan amount. 5. The case of the second respondent is that the letter given by the petitioner dated 08.05.1995 amounts to letter of guarantee. I am unable to accept the same for more than one reasons. It appears that the second respondent Bank has taken the recovery proceeding under the Special Bylaw in ARC.No.895/98-99, dated 15.03.2011, 6. The loanee had brought two persons (who were working in the Government Head Quarters Hospital) as sureties for his loan amount. The reason assigned by the respondent for taking the gratuity amount is that the decree amount granted by the arbitrator cannot be realized since where about the service of the employee not known could not be accepted. Whereas the Award in the arbitration proceedings, as referred above, there are two other sureties are also there though the Award is passed in the year 1999 no steps have been by them for the recovery and for non execution of the award passed. 7. Furthermore, at the no stretch of imaginary, undertaking said to have been given by the petitioner, cannot be termed as a letter of guarantee. In view of the fact that two sureties have signed surety therein and they are also made party in the award proceedings in the said ARC, the petitioner could not be turned one as guarantor nor letter of undertaking given by him dated 08.05.1995 can be regarded as letter of guarantee as per the Section 79 of the Tamil Nadu Co-operative Societies Act. 8. Admittedly, a sum of Rs.10,00,000/- is a gratuity amount of the petitioner, the same cannot be attached in the absence of any sanction of law. The petitioner herein was retired from service, hence, there cannot be any recovery of gratuity of amount of Rs.1,00,000/- without issuing any show cause notice to the petitioner. 9. 8. Admittedly, a sum of Rs.10,00,000/- is a gratuity amount of the petitioner, the same cannot be attached in the absence of any sanction of law. The petitioner herein was retired from service, hence, there cannot be any recovery of gratuity of amount of Rs.1,00,000/- without issuing any show cause notice to the petitioner. 9. Admittedly, the recovery of gratuity amount is under Section 7(4) (a) and Section 13 of the Payment of Gratuity Act., Neither the counter nor the typed set of papers have been produced as to whether any procedure has been contemplated in compliance of the Payment of the Gratuity Act, in the absence of the same, it cannot be attached. The contesting second respondent has not assigned any reason as to why they have not taken steps for the last 14 years for initiating the execution of the arbitration award. Neither the second respondent nor the third respondent has adverted as to why no steps have been taken for execution of the arbitration award. 10. The learned counsel appearing for the second respondent could contend that Rs.1,00,000/- amount was not attached, but, it was temporarily withheld. However, on perusal of the proceedings of the second respondent dated 19.06.2015, wherein the second respondent has categorically admitted that withheld amount of Rs.1,00,000/- from the gratuity of the petitioner shall be adjusted for the defaulted decree amount and hence, I find that the said contention of the counsel is contrary to the impugned order. The second respondent has specifically ordered for adjustment of the amount in the said proceeding, which reads as follows: “TAMIL” 11. In support of his contention, the learned counsel appearing for the petitioner relied on the Judgment of this Court reported in 2008(6) MLJ 631 (P.Paramasivam Vs. Assistant Director of Co-operative Audit, Salem and another), wherein it has been held that as per Section 79 of the Tamil Nadu Co-operative Societies Act, the gratuity amount is not liable to be attached, nor subjected to process of any Court or other authority, on any ground. 12. Thus, I find that the amount withheld in the gratuity amount viz., Rs.1,00,000/- has to be taken to the credit of loan, with regard to the outstanding loan amount in the name of S.Pethuraj after 20 years is unsustainable in law. 13. 12. Thus, I find that the amount withheld in the gratuity amount viz., Rs.1,00,000/- has to be taken to the credit of loan, with regard to the outstanding loan amount in the name of S.Pethuraj after 20 years is unsustainable in law. 13. In view of the above said findings, the respondents are directed to pay the balance of Rs.1,00,000/- due to the petitioner as a part of gratuity amount within a period of four weeks from the date of receipt of a copy of this order. 14. Accordingly, this Writ Petition is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.