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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition No. 3131 of 2001 .
The Poona Post & Telecom
Co-operative Credit Society Ltd. .. Petitioner
v/s.
The Union of India
& Others ig ..Respondents
Mr.Girish S. Godbole for the Petitioner.
Mr.Rajiv Chavan with Mr.D.A.Dube i/b. Pankaj Kapoor for the Union of
India.
CORAM : B.H. MARLAPALLE &
R.Y.GANOO, JJ.
DATED : 7th November, 2009
ORAL JUDGMENT ( PER B.H.MARLAPALLE, J.) :
1. This petition filed under Article 226 of the Constitution impugns the
letter dated 29.3.2000 and the subsequent communications issued by
respondent nos.2 to 4 denying to deduct the loan instalments from the
salaries of the employees of the department of Posts and R.M.S. and to
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remit to the petitioner credit society. The petitioner further prays for a writ
of mandamus or order in the like nature to the respondents to continue to
deduct the amount of loan instalments and interest thereon from the
monthly salaries and other dues payable to the employees of the Posts and
R.M.S. departments, in view of the statutory obligations under Section 49
of the Maharashtra Co-operative Societies Act, 1960. (hereafter referred to
as “the Act” for short).
2.
The petitioner is a Co-operative Credit Society duly registered under
the Act and the employees of the Postal Department and Telegraph
Department, and Wireless Department are its members. It advances loan to
its members/ employees of all these departments and the repayment of loans
is by monthly instalments along with interest to be deducted from the
salaries of the members. Such deductions were being done by all the
concerned departments. However, on 15.3.2000 the petitioner received a
letter from respondent no.4 to the effect that henceforth the Director of
Postal Services, Pune Region would be acting as the Ex-officio President of
the petitioner society and same was the decision of respondent no.3. On
17.4.2000, the petitioner addressed a letter to respondent no.3 and pointed
out that the President of the petitioner society is elected from amongst the
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gazetted officers of the Postal department, R.M.S. and Telecom
departments as per Bye Law No.20 of its bye laws as amended on
11.11.1994. This led to exchange of letters between the parties and on
28.4.2000 respondent no.4 addressed a letter to the petitioner to the effect
that according to the orders of the Directorate of Postal Department, the
Chairman of the society must be an official representative and 1/3rd
strength of the managing committee /executive committee of the society or
3 members whichever is less should be official nominees of the postal
department.
By a subsequent letter dated 26.6.2000 the respondent no.4
informed the petitioner that unless the demands of such nominations were
considered, action will be taken to withdraw the facilities provided by the
department. On 17.11.2000, the respondent no.4 issued directions to the
subordinate postal officers not to recover the instalments of loan and
interest from the salaries of the postal employees and such deductions
should be stopped forthwith. On 22.11.2000 the respondent no.1 addressed
a letter to the petitioner stating that all the facilities including the recovery
of society subscription and loans from the pay and allowances of the staff
was withdrawn as the petitioner had not accepted the demand of nominating
the Director of Postal Services as Ex-Officio Chairman and three other
officials as nominees of the Managing Committee/ Executive Committee
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and a deadline was set out in this regard stating that unless the demands
made by respondent no.4 were considered by 27.11.2000 the deductions
could not be made. On 29.12.2000 the Senior Post Master, Pune Head
Office returned the recovery list on the ground that the facility of recovery
from the staff salaries was withdrawn. In these circumstances, the
petitioner has approached this court and has submitted that having regard to
the scheme of Section 49 of the Act, the respondent nos.2 to 4 are obliged
to deduct the loan instalments and remit to the petitioner on the basis of the
agreement between the petitioner and its borrowing members who are the
employees working under the said respondents.
3. An affidavit in reply has been filed by the Senior Superintendent of
Post Office, Pune City, on behalf of the respondents. It has been submitted
that the petitioner was intimated about accepting the nomination of Shri
Sandip Patnaik, Director of Postal Services as Ex-officio Chairman of the
petitioner society and the following officials as members of the Managing
Committee, if it was keen to restore the facilities of deduction of loan and
interest from the salaries of the borrowing members:
i. Shri V.R.Patil, Sr. Superintendent of Railway Mail Services, Pune
ii. Shri P.S.Deshmukh, Sr. Superintendent of Postal Services, Pune City
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iii. Smt.P.P.Bhosale, Senior Post Master, Pune Head Office.
It has been further submitted that the petitioner society did not
intimate its proposal to amend the bye laws and the said amendment was
unlawfully changed on 24.7.1994 and 11.11.1994. It has relied upon Rule
No.559 of the Financial Handbook and submitted that the deduction of
recovery of loan etc are the facilities by way of welfare measures in terms
of the provisions of the Directorate General of Posts and Telegraph order
dated 23.7.1966. It is also contended that the office of the Post Master
General, Pune came into existence in the year 1979 and till then there was
no such higher officer based at Pune. The amendment carried out in 1994
was not legal and bye law nos.19 and 20 as it stood prior to the said
amendment were based on the order dated 23.7.1966. It has also been
pointed out that the directions issued by the respondents were quite
reasonable and based on the orders of the Government of India issued from
time to time. The department of Telecom has been privatised as Bharat
Sanchar Nigam Ltd., and therefore nomination of only the Director of
Postal Services as Ex-officio Chairman of the society would be just and
proper. The affidavit accepts that as the petitioner society did not concede
to the demand so made by the respondent nos.2 to 4, the deduction list was
returned and the respondents decided not to concede to the request of
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making such deductions.
4. Mr.Chavan, learned Counsel for the respondents has referred to the
decision of this court in the case of Madanlal Tantia of Bombay & Ors. v.
Collector of Bombay & Ors. 1999 II CLR 736 and The New Phaltan
Sugar Works Ltd. & Ors. v. The State of Maharashtra & Ors. 2004 Vol.
106(3) Bom.L.R.104, in support of his contentions that unless there is an
agreement between the borrowing employee and the employer, such
deductions are not obligatory and therefore in the absence of any such
agreement between the borrower employees working under respondent nos.
2 to 4 so as to enable the department to deduct the monthly loan instalment
along with interest, no writ could be issued and the petitioner does not have
any such vested right to seek directions from this Court by filing the
petition under Article 226 of the Constitution of India.
5. Section 49 of the said Act reads as under:
49. Deduction from salary to meet society’s claim in certain
cases.
(1) A member of the society may execute an agreement in
favour of the society, providing his employer shall be
competent to deduct from the salary or wages payable to him
by the employer, such total amount payable to the society and
in such instalments as may be specified in the agreement and to::: Downloaded on – 09/06/2013 15:16:46 :::
7pay to the society the amounts so deducted in satisfaction of
any debt or other deman of the society against the member. A
copy of such agreement duly attested by an officer of thesociety shall be forwarded by the society to the employer.
(2) On receipt of a copy of such agreement, the employer
shall, if so required by the society by a requisition in writing,
and so long as the total amount shown in the copy of the
agreement as payable to the society has been deducted and paidto the society, make the deductions in accordance with the
agreement, and pay the amount so deducted to the society, as if
it were part of the wages payable by him as required under the
Payment of Wages Act, 1936 on the day which he makes the
payment.
(3) If after the receipt of a requisition made under the fore-
going sub-section, the employer at any time failes to decut the
amount specified in the requisition from the salary or wagespayable to the member concerned, or makes default in
remitting the amount deducted to the society, the employer
shall be personally liable for the payment of such amount or
where the employer has made deductions but the amount so
deducted is not remitted to the society, then such amounttogether with interest thereon at one and half times the rate of
interest charged by the society to the memer for the periodcommencing on the date on which the amount was due to be
paid to the society and ending on the dateof actually remitting
it to the society; and such amount together with interestthereon, if any, shall, on a certificate issued by the Registrar, be
recoverable from him as an arrear of land revenue, and the
amount and interest so due shall rank in priority in respect of
such liability of the employer as wages in arrears.
(4) Nothing contained in this section shall apply to the persons
employed in any railways (within the meaning of the
Constitution) and in mines and oil fields.
6. As per sub section (1) of section 49, a member of the society may
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execute an agreement in favour of the society so as to provide that his
employer shall be competent to deduct from the salary or wages payable to
him by the employer, such total amount payable to the society against the
member. A copy of such agreement is required to be forwarded by the
officer of the society to the employer after its attestation.
As per sub section (2), on receipt of copy of such agreement, the
employer shall, if so required by the society by a requisition in writing, and
so long as the total amount shown in the copy of the agreement as payable
to the society has been deducted and paid to the society, make the
deductions in accordance with the agreement, and pay the amount so
deducted to the society, as if it were part of the wages payable by him as
required under the Payment of Wages Act, 1936 on the day which he makes
the payment.
Sub Section (3) of Section 49 is a penal provision in case of default
by the employer in remitting the deducted loan instalment or on its failure
to deduct the amount specified in the requisition from the salary or wages
payable to the member concerned.
As per sub section (4) the provisions of Section 49 shall not apply to
the persons employed in any railways and in mines and oil fields.
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7. It is not disputed before us that the petitioner has complied with the
requirements of Section 49 (1) of the Act and that it has submitted the
requisition for deductions along with the copies of the agreement. On the
other hand it is contended that it is not obligatory on the part of the
respondents to oblige the petitioner if it did not comply with the directions
of respondent No.2 or 3, as the case may be, for accepting the name of its
officer as President and other officers as three nominee members on the
Managing Committee. The question that is required to be considered is
whether the respondents have the authority to impose such conditions to
discharge their obligations under Section 49(2) of the Act and the answer
has to be in the negative.
8. Bye law No.19 prior to its amendment in 1994, of the petitioner
society read as under:
“The Annual General Meeting shall be held before 15th August of
every year and transact the business specified in the Bye-Law No.20.
The President of the society shall be the Senior Superintendent of the
Post Offices Poona Division, Poona in the First instance. TheGeneral Manager, Telecom Poona in the Second instance. The
Senior Superintendent R.M.S. Division Poona in the Third instance
and the Division Engineer Wireless Poona in the Fourth instance and
future by the same rotation. They should be requested to accept the
post. In case the Officers deny to accept the post or resign the Board
may elect any other Officer who is willing to accept the post.”
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It was amended in the year 1994 for providing for several clarifications and
amendments. The unamended bye law clearly goes to show that the
President of the Society shall be the Senior Superintendent of Post Officers
in the first instance, the General Manager Telecom Pune in the second
instance and the Senior Superintendent R.M.S. Division in the third
instance as well as the Divisional Engineer Wireless Poona in the fourth
instance, by way of rotation. These officers were requested to accept the
post and in case they deny the same, the Board may elect any of the officer
who is willing to accept the post. As per the amendment of 1994, the
President would be appointed from amongst the gazetted officers of Posts,
R.M.S. as well as Telecom Department, and by election. This amendment
has been duly approved by the Competent Authority under the Act. Hence
it would not be appropriate for the respondents to say that Bye Law nos.19
and 20 or any other Bye Laws were illegally amended by the petitioner. It
is well settled that the Bye Laws of the society are binding on the said
society and either the post of President or Chairman/Vice Chairman or any
member of the Committee must be filled in as per the scheme of the Bye
Laws. The request or demand made by the respondents for nomination of
the President and three members of the Managing Committee was not in
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keeping with the scheme of the Bye Laws and, therefore, in law the
petitioner could not have conceded to the said demand and accepted the
nominations. In short, the demands being made by the respondents were
contrary to law and the petitioner was called upon, in a way, to commit an
illegality in its administration.
9. It has also been stated that the respondents have provided the office
premises and therefore by way of welfare measures when the facilities are
being extended by the employer, the directions issued by the employer
ought to have been conceded . We do not find any force in this contention.
Even otherwsie Rule 559 from Chapter XVIII of Miscellaneous Subjects
has been produced which reads as under:
559- Recoveries from the Salaries of the Government Servants on
account of dues of Co-operative Societies, registered under the
various Co-operative Societies Acts, where such Acts imposes the
statutory obligation on the Government to made such deductions,shall be made by the Drawing and Disbursing Officer in accordance
with such procedure as may be laid down from time to time.
10. In our opinion, the scheme of Section 49(2) clearly imposes the
statutory obligation on the respondents to make the deductions of loan and
interest thereon from the monthly salaries of the borrowing members of the
petitioner society and it cannot be accepted that unless there is an
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agreement signed between the employees and respondents, such deductions
are not required to be made by way of a statutory obligation. Accepting
such a view will be simply writing something which is not provided for in
Section 49 of the Act. It is well settled that the provisions of the statute are
required to be read as they are and no external aid for interpretations is
required unless the words of the statue are vague or lead to more than one
interpretations. We hold that it is obligatory on the part of the respondents
to effect the deductions as are required under Section 49 of the Act and
remit the deducted amounts with the petitioner society failing which the
penal provisions of sub section (3) of Section 49 would be applicable. We
are informed that by way of interim order passed by this Court, the
respondents have continued to do the deductions and as such deductions are
being done as of now as well. There is no reason to deviate from this
practice and the stand taken by the respondents in the impugned
communications is not in keeping with the legal obligations and therefore
unsustainable. Hence the communications must be quashed and set aside.
11. In the premise, this petition succeeds and we quash and set aside the
impugned communication, including the communication dated 22.11.2000
as well as 29.12.2000. As directed by the interim order, the respondent nos.
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3 to 4 shall continue to extend the obligation to recover from staff salaries
of all the members in keeping with the scheme of Section 49 of the Act, so
long as such members are in service. Rule is thus made absolute and more
particularly in terms of prayer clause 7(b).
[R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]
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