1. The petitioner was employed with the 2nd respondent – Bank. He joined the service of the Bank in the year 1971 as a Typist, and subsequently he was promoted as a Branch Manager. While working as the Branch Manager, certain disciplinary steps were taken against him, alleging misconduct and failure for taking steps to protect the interest of the Bank. On the basis of the disciplinary steps taken as above, the petitioner was dismissed from service. The gratuity amount has also been paid to the petitioner and there is no dispute with respect to that in this writ petition. Later, the petitioner took up the contention that he had also subscribed to the provident fund, and contributions were made by the petitioner as well as the Bank, and the eligible amount require to be disbursed to him. Certain representations were also filed, seeking these benefits. The petitioner approached this Court by filing W.P.(C) No.23499 of 2012 seeking appropriate reliefs in the said circumstances, and by Ext.P5 judgment dated 10.01.2023, this Court directed the petitioner to file a representation once more, and directed the 2nd respondent Bank to consider the same and pass appropriate orders after hearing the petitioner. On the basis of the directions issued as above, the 2nd respondent – Bank - has issued Ext.P6 dated 21.07.2023. In Ext.P6, it is found that the petitioner had obtained certain credit facilities by way of a car loan/conveyance loan/overdraft facility, and the amounts representing the contributions made towards the provident fund have been adjusted towards the liability payable towards a credit facility extended as above. The order also makes reference to an amount of Rs.69,710.18 representing the contribution made by the employee – the petitioner, stated to have been already credited to the loan account in the year 2010 itself on 01.05.2010. It is in the said circumstances that the petitioner has presented the captioned writ petition seeking to challenge Ext.P6 order refusing to disburse the provident fund amounts stated to have been due as above.

2. I have heard Sri.P.C.Sasidharan, the learned counsel for the petitioner, as well as Sri.Sadchith P. Kurup, the learned counsel for the 2nd respondent herein.

3. Sri.Sasidharan, the learned counsel, would raise two-fold contentions. The first contention is to the effect that the interest on the provident fund contributions has not been extended to the petitioner with reference to the provisions of Rule 15 of the Union Bank of India Employees’ Provident Fund Rules (for short, ‘EPF Rules’) as evidenced by Ext.P4, as it existed on the date of cessation of the service of the petitioner on 06.06.2006. The second submission is to the effect that the 2nd respondent was not justified in having adjusted the eligible provident fund contributions to the liability allegedly payable by the petitioner since the provisions of Section 10 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short, the ‘Act’), specifically bar such adjustments. With respect to the second contention, he also invited the attention of this Court to Rule 17 of the EPF Rules of the 2nd respondent Bank and submitted that such adjustment could be effected only in a situation where an employee is dismissed for “misconduct causing financial loss”. The learned counsel also sought to place reliance on the judgment of the Apex Court in Radhey Shyam Gupta v. Punjab National Bank and Another [2009 (1) SCC 376], the judgment of a Division Bench of the Madras High Court in W.P.No.9568 of 2017 and that of a Division Bench of this Court in Mohanan Nair P.G. v. Omallur Service Co-operative Bank Ltd. No.Q 228 and Others [2022 KHC 433].

4. Per contra, Sri.Sadchith, the learned counsel for the 2nd respondent, would contend that the petitioner had obtained the credit facilities after executing various documents as evidenced by Exts.R2(B) to (J). He also referred to the provisions under Clause XI(f) of Ext.R2(E) Scheme of Clean Overdraft Facility for the Staff Members to state that the petitioner was required to execute a letter of authority to the Bank permitting the Bank to appropriate the Terminal Benefits towards the liability under the overdraft facility if the “employee ceases to be in the service of the Bank”. With reference to the afore requirement, he also pointed out Clause No.6 of Ext.R2(F) sanction advice, as per which also such a letter of authority is required to be executed by the petitioner. Furthermore, he pointed out that Ext.R2(J) authorization has been executed by the petitioner, permitting the Bank to appropriate the “terminal benefits” towards the liability arising out of the overdraft facility. On the face of the afore, he places reliance on the judgment of the Apex Court in Lachoo Mal v. Radhey Shyam [(1971) 1 SCC 619], Commissioner of Customs v. Virgo Steels, Bombay [(2002) 4 SCC 316], Arce Polymers Pvt. Ltd v. Alphine Pharmaceuticals Pvt. Ltd. [2021 (6) KLT OnLine 1036 (SC)], to state that an individual is entitled to even waive a statutory right, and since the petitioner has already executed such an undertaking as already noticed above, the entitlement of the petitioner with reference to the benefits extended under Section 10 of the Act has been waived by him. To the same effect is the judgment of this Court in Philomina Francis v. Accountant General [2007 (2) KLT 310]. Therefore, it is the submission that the 2nd respondent Bank was justified in having appropriated the dues against the loan accounts.

5. I have considered the rival contentions as well as the connected records.

6. True, the relevant provisions of Section 10 of the Act read as under:-

                  “Section 10

                  (1) The amount standing to the credit of any member in the Fund or of any exempted employee in a provident fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Court in respect of any debt or liability incurred by the member or the exempted employee and neither the Official assignee appointed under the Presidency town Insolvency Act, 1909 (3 of 1969), nor any receiver appointed under the Provincial Insolvency Act, 1920 (4 of 1920), shall be entitled to, or have any Claim on, any such amount.”

                  Thus, any amount standing to the credit of any member in the Fund is in no way to be assigned or charged and is not liable for attachment under any decree or order of any Court in respect of any debt or liability incurred by the member of the Fund. At the first blush, this Court is of the opinion that the contention raised with reference to the provisions of Section 10 of the Act requires to be accepted.

7. At the same time, the question arises as to whether the petitioner’s execution of the undertakings at Ext.R2(J) noticed above and other connected documents entitles the Bank to proceed against the provident fund dues and appropriate the same towards the liability payable by the petitioner.

8. The Apex Court, in Lachoo Mal (supra), has found as under:-

                  “3. …….. The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanction the nonobservance of the statutory provision is cuilibet licat renuntiare juri pro se introducto. (See Maxwell on Interpretation of Statutes, Eleventh Edition, pages 375 & 376.) If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it win have to be seen whether an Act is intended to have a more extensive operation ‘as a matter of public policy.”

                  Similarly, a Single Bench of this Court also, in Philomina Francis (supra), though with reference to the provisions of Rule 3, Part III of the Kerala Service Rules, has found that the State Bank of Travancore - which was the concerned party was entitled to recover from the DCRG due to the employee, on the basis of the written consent executed by the employee. Similarly, the Apex Court in Commissioner of Customs (supra) has also repeated the same principle, holding that “the privilege conferred or a right created by a Statute, if it is solely for the benefit of an individual” can be waived by him. The Apex Court again, in Arce Polymers (supra) has found as under:-

                  “16. This principle has been subsequently followed in Pravesh Kumar Sachdeva v. State of Uttar Pradesh and Others (2018 (4) KLT OnLine 3039 (SC) = (2018) 10 SCC 628), to hold that waiver is abandonment of a right which normally everybody is at liberty to waive. Waiver is nothing unless it amounts to release, albeit it can be adduced from acquiescence or may be implied. The essence of waiver is an estoppel and they are questions of conduct and, therefore, necessarily determined on the facts of each case. As a rule and judicial policy, the courts of law do not allow a litigant to take inconsistent position to gain advantage through the aid of judicial proceedings.”

                  In the light of the afore principles laid down by the Apex Court as above, this Court is of the opinion that the petitioner may not be justified in seeking to place reliance on the provisions under Section 10 of the Act. The 2nd respondent Bank, on the basis of the undertaking/waiver executed by the petitioner as noticed above, would be entitled to adjust the various amounts lying at the credit of the petitioner in the provident fund account for setting off the liability payable by the petitioner towards the credit facility.

9. The subsisting issue arising for consideration is as regards the entitlement for interest on the provident fund contributions under Rule 15 of the EPF Rules (Ext.P4). True, the afore provides interest as under:

                  “15. The account of each Member shall be credited with interest every half-year at such rate as the Trustees might fix from time to time having regard to the interest earned on investment from the Fund and the Market value of investments and the redemption period of investments and on the monies deposited with the Bank. Interest on members' contribution be paid upto the final date of payment to adjust Provident Fund loan outstanding from the own contribution balance in case of cessation of service due to any reason and on non-submission of claims forms by member.”

10. The stand of the respondent Bank is with reference to the amendment pursuant to Ext.P4 carried out during November, 2013, as per which “member shall not be entitled to interest on the amount to credit of his/her provident fund account on expiry of three months following cessation of service”. The Bank contends that there is no interest eligibility for periods beyond three months from the cessation of service of the petitioner, which was on 06.06.2006.

11. At the same time, the fact that the amendment proposed does not have any retrospective operation is clear from a perusal of Ext.P4. When that be so, this Court is of the opinion that the amended provisions cannot be applied for disallowing interest under the provisions of Rule 15 of the EPF Rules as it originally stood. Therefore, there shall be a direction to the respondent Bank to credit interest in terms of the original provisions under Rule 15 and thereafter set off the same towards the dues of the petitioner.

12. This Court also takes note of the contention raised by the learned counsel for the petitioner, Sri.Sasidharan, that assuming that the petitioner had liability against various credit facilities, the steps taken are barred by limitation. At the same time, as rightly contended by Sri.Sadchith, the learned counsel for the Bank, the limitation only bars the remedy, but does not extinguish the right to which the remedy relates, as held by the Apex Court in Punjab National Bank and Others v. Surendra Prasad Sinha [(1993) Supp 1 SCC 499].

13. In the light of the afore, the Bank would be entitled to seek for realization of the dues with respect to the credit facilities obtained by the petitioner. Hence, the ground of limitation raised by the petitioner cannot be accepted.

With the afore observations/findings, this writ petition would stand disposed of.