{"id":256409,"date":"2009-11-07T00:00:00","date_gmt":"2009-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/co-operative-credit-society-ltd-vs-the-union-of-india-on-7-november-2009"},"modified":"2016-11-16T16:26:04","modified_gmt":"2016-11-16T10:56:04","slug":"co-operative-credit-society-ltd-vs-the-union-of-india-on-7-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/co-operative-credit-society-ltd-vs-the-union-of-india-on-7-november-2009","title":{"rendered":"Co-Operative Credit Society Ltd vs The Union Of India on 7 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Co-Operative Credit Society Ltd vs The Union Of India on 7 November, 2009<\/div>\n
Bench: B.H. Marlapalle, R.Y. Ganoo<\/div>\n
                                   1\n\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                     CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                          \n                          Writ Petition No. 3131 of 2001 .\n\n\n\n\n                                                  \n    The Poona Post & Telecom\n\n\n\n\n                                                 \n    Co-operative Credit Society Ltd.                                    .. Petitioner\n\n                v\/s.\n\n\n\n\n                                      \n    The Union of India\n    & Others              ig                                         ..Respondents\n                        \n    Mr.Girish S. Godbole for the Petitioner.\n\n    Mr.Rajiv Chavan with Mr.D.A.Dube i\/b. Pankaj Kapoor for the Union of\n    India.\n      \n\n\n                                 CORAM : B.H. MARLAPALLE &\n   \n\n\n\n                                         R.Y.GANOO, JJ.\n<\/pre>\n
                                 DATED : 7th November, 2009<\/p>\n
    ORAL JUDGMENT ( PER B.H.MARLAPALLE, J.) :\n<\/p>\n
    1.    This petition filed under Article 226<\/a> of the Constitution impugns the<\/p>\n
    letter dated 29.3.2000 and the subsequent communications issued by<\/p>\n
    respondent nos.2 to 4 denying to deduct the loan instalments from the<\/p>\n
    salaries of the employees of the department of Posts and R.M.S. and to<\/p>\n
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\n                                     2<\/span><\/p>\n
    remit to the petitioner credit society. The petitioner further prays for a writ<\/p>\n
    of mandamus or order in the like nature to the respondents to continue to<\/p>\n
    deduct the amount of loan instalments and interest thereon from the<\/p>\n
    monthly salaries and other dues payable to the employees of the Posts and<\/p>\n
    R.M.S. departments, in view of the statutory obligations under Section 49<\/p>\n
    of the Maharashtra Co-operative Societies Act, 1960. (hereafter referred to<\/p>\n
    as “the Act” for short).\n<\/p>\n
    2.<\/p>\n
          The petitioner is a Co-operative Credit Society duly registered under<\/p>\n
    the Act and the employees of the Postal Department and Telegraph<\/p>\n
    Department, and Wireless Department are its members. It advances loan to<\/p>\n
    its members\/ employees of all these departments and the repayment of loans<\/p>\n
    is by monthly instalments along with interest to be deducted from the<\/p>\n
    salaries of the members. Such deductions were being done by all the<\/p>\n
    concerned departments. However, on 15.3.2000 the petitioner received a<\/p>\n
    letter from respondent no.4 to the effect that henceforth the Director of<\/p>\n
    Postal Services, Pune Region would be acting as the Ex-officio President of<\/p>\n
    the petitioner society and same was the decision of respondent no.3. On<\/p>\n
    17.4.2000, the petitioner addressed a letter to respondent no.3 and pointed<\/p>\n
    out that the President of the petitioner society is elected from amongst the<\/p>\n
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\n                                      3<\/span><\/p>\n
    gazetted officers of the Postal department, R.M.S. and Telecom<\/p>\n
    departments as per Bye Law No.20 of its bye laws as amended on<\/p>\n
    11.11.1994. This led to exchange of letters between the parties and on<\/p>\n
    28.4.2000 respondent no.4 addressed a letter to the petitioner to the effect<\/p>\n
    that according to the orders of the Directorate of Postal Department, the<\/p>\n
    Chairman of the society must be an official representative and                     1\/3rd<\/p>\n
    strength of the managing committee \/executive committee of the society or<\/p>\n
    3 members whichever is less should be official nominees of the postal<\/p>\n
    department.\n<\/p>\n
                    By a subsequent letter dated 26.6.2000 the respondent no.4<\/p>\n
    informed the petitioner that unless the demands of such nominations were<\/p>\n
    considered, action will be taken to withdraw the facilities provided by the<\/p>\n
    department. On 17.11.2000, the respondent no.4 issued directions to the<\/p>\n
    subordinate postal officers not to recover the instalments of loan and<\/p>\n
    interest from the salaries of the postal employees and such deductions<\/p>\n
    should be stopped forthwith. On 22.11.2000 the respondent no.1 addressed<\/p>\n
    a letter to the petitioner stating that all the facilities including the recovery<\/p>\n
    of society subscription and loans from the pay and allowances of the staff<\/p>\n
    was withdrawn as the petitioner had not accepted the demand of nominating<\/p>\n
    the Director of Postal Services as Ex-Officio Chairman and three other<\/p>\n
    officials as nominees of the Managing Committee\/ Executive Committee<\/p>\n
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\n                                     4<\/span><\/p>\n
    and a deadline was set out in this regard stating that unless the demands<\/p>\n
    made by respondent no.4 were considered by 27.11.2000 the deductions<\/p>\n
    could not be made.       On 29.12.2000 the Senior Post Master, Pune Head<\/p>\n
    Office returned the recovery list on the ground that the facility of recovery<\/p>\n
    from the staff salaries was withdrawn.         In these circumstances, the<\/p>\n
    petitioner has approached this court and has submitted that having regard to<\/p>\n
    the scheme of Section 49 of the Act, the respondent nos.2 to 4 are obliged<\/p>\n
    to deduct the loan instalments and remit to the petitioner on the basis of the<\/p>\n
    agreement between the petitioner and its borrowing members who are the<\/p>\n
    employees working under the said respondents.\n<\/p>\n
    3.      An affidavit in reply has been filed by the Senior Superintendent of<\/p>\n
    Post Office, Pune City, on behalf of the respondents. It has been submitted<\/p>\n
    that the petitioner was intimated about accepting the nomination of Shri<\/p>\n
    Sandip Patnaik, Director of Postal Services as Ex-officio Chairman of the<\/p>\n
    petitioner society and the following officials as members of the Managing<\/p>\n
    Committee, if it was keen to restore the facilities of deduction of loan and<\/p>\n
    interest from the salaries of the borrowing members:\n<\/p>\n
         i. Shri V.R.Patil, Sr. Superintendent of Railway Mail Services, Pune<\/p>\n
         ii. Shri P.S.Deshmukh, Sr. Superintendent of Postal Services, Pune City<\/p>\n
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\n                                    5<\/span><\/p>\n
       iii. Smt.P.P.Bhosale, Senior Post Master, Pune Head Office.\n<\/p>\n
          It has been   further submitted that the petitioner society did not<\/p>\n
    intimate its proposal to amend the bye laws and the said amendment was<\/p>\n
    unlawfully changed on 24.7.1994 and 11.11.1994. It has relied upon Rule<\/p>\n
    No.559 of the Financial Handbook and submitted that the deduction of<\/p>\n
    recovery of loan etc are the facilities by way of welfare measures in terms<\/p>\n
    of the provisions of the Directorate General of Posts and Telegraph order<\/p>\n
    dated 23.7.1966. It is also contended that the office of the Post Master<\/p>\n
    General, Pune came into existence in the year 1979 and till then there was<\/p>\n
    no such higher officer based at Pune. The amendment carried out in 1994<\/p>\n
    was not legal and bye law nos.19 and 20 as it stood prior to the said<\/p>\n
    amendment were based on the order dated 23.7.1966. It has also been<\/p>\n
    pointed out that the directions issued by the respondents were quite<\/p>\n
    reasonable and based on the orders of the Government of India issued from<\/p>\n
    time to time. The department of Telecom has been privatised as Bharat<\/p>\n
    Sanchar Nigam Ltd., and therefore nomination of only the Director of<\/p>\n
    Postal Services as Ex-officio Chairman of the society would be just and<\/p>\n
    proper. The affidavit accepts that as the petitioner society did not concede<\/p>\n
    to the demand so made by the respondent nos.2 to 4, the deduction list was<\/p>\n
    returned and the respondents decided not to concede to the request of<\/p>\n
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\n                                     6<\/span><\/p>\n
    making such deductions.\n<\/p>\n
    4.    Mr.Chavan, learned Counsel for the respondents has referred to the<\/p>\n
    decision of this court in the case of Madanlal Tantia of Bombay & Ors. v.\n<\/p>\n
    Collector of Bombay & Ors. 1999 II CLR 736 and The New Phaltan<\/p>\n
    Sugar Works Ltd. & Ors. v. The State of Maharashtra & Ors<\/a>. 2004 Vol.\n<\/p>\n
    106(3) Bom.L.R.104, in support of his contentions that unless there is an<\/p>\n
    agreement between the borrowing employee and the employer, such<\/p>\n
    deductions are not obligatory and therefore in the absence of any such<\/p>\n
    agreement between the borrower employees working under respondent nos.\n<\/p>\n
    2 to 4 so as to enable the department to deduct the monthly loan instalment<\/p>\n
    along with interest, no writ could be issued and the petitioner does not have<\/p>\n
    any such vested right to seek directions from this Court by filing the<\/p>\n
    petition under Article 226<\/a> of the Constitution of India.\n<\/p>\n
    5.    Section 49 of the said Act reads as under:\n<\/p>\n
                49. Deduction from salary to meet society’s claim in certain<\/p>\n
                cases.\n<\/p><\/blockquote>\n
                (1) A member of the society may execute an agreement in
\n                favour of the society, providing his employer shall be
\n                competent to deduct from the salary or wages payable to him
\n                by the employer, such total amount payable to the society and
\n                in such instalments as may be specified in the agreement and to<\/p>\n
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\n                                  7<\/span><\/p>\n
              pay to the society the amounts so deducted in satisfaction of
\n              any debt or other deman of the society against the member. A
\n              copy of such agreement duly attested by an officer of the<\/p>\n
              society shall be forwarded by the society to the employer.\n<\/p><\/blockquote>\n
              (2) On receipt of a copy of such agreement, the employer
\n              shall, if so required by the society by a requisition in writing,
\n              and so long as the total amount shown in the copy of the
\n              agreement as payable to the society has been deducted and paid<\/p>\n
              to the society, make the deductions in accordance with the
\n              agreement, and pay the amount so deducted to the society, as if
\n              it were part of the wages payable by him as required under the
\n              Payment of Wages Act<\/a>, 1936 on the day which he makes the
\n              payment.\n<\/p><\/blockquote>\n
              (3) If after the receipt of a requisition made under the fore-\n<\/p><\/blockquote>\n
              going sub-section, the employer at any time failes to decut the
\n              amount specified in the requisition from the salary or wages<\/p>\n
              payable to the member concerned, or makes default in
\n              remitting the amount deducted to the society, the employer
\n              shall be personally liable for the payment of such amount or
\n              where the employer has made deductions but the amount so
\n              deducted is not remitted to the society, then such amount<\/p>\n
              together with interest thereon at one and half times the rate of
\n              interest charged by the society to the memer for the period<\/p>\n
              commencing on the date on which the amount was due to be
\n              paid to the society and ending on the dateof actually remitting
\n              it to the society; and such amount together with interest<\/p>\n
              thereon, if any, shall, on a certificate issued by the Registrar, be
\n              recoverable from him as an arrear of land revenue, and the
\n              amount and interest so due shall rank in priority in respect of
\n              such liability of the employer as wages in arrears.\n<\/p><\/blockquote>\n
              (4) Nothing contained in this section shall apply to the persons
\n              employed in any railways (within the meaning of the
\n              Constitution) and in mines and oil fields.\n<\/p><\/blockquote>\n
    6.   As per sub section (1) of section 49<\/a>, a member of the society may<\/p>\n
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\n                                      8<\/span><\/p>\n
    execute an agreement in favour of the society so as to provide that his<\/p>\n
    employer shall be competent to deduct from the salary or wages payable to<\/p>\n
    him by the employer, such total amount payable to the society against the<\/p>\n
    member. A copy of such agreement is required to be forwarded by the<\/p>\n
    officer of the society to the employer after its attestation.\n<\/p>\n
          As per sub section (2), on receipt of copy of such agreement, the<\/p>\n
    employer shall, if so required by the society by a requisition in writing, and<\/p>\n
    so long as the total amount shown in the copy of the agreement as payable<\/p>\n
    to the society has been deducted and paid to the society,                    make the<\/p>\n
    deductions in accordance with the agreement, and pay the amount so<\/p>\n
    deducted to the society, as if it were part of the wages payable by him as<\/p>\n
    required under the Payment of Wages Act<\/a>, 1936 on the day which he makes<\/p>\n
    the payment.\n<\/p>\n
          Sub Section (3) of Section 49<\/a> is a penal provision in case of default<\/p>\n
    by the employer in remitting the deducted loan instalment or on its failure<\/p>\n
    to deduct the amount specified in the requisition from the salary or wages<\/p>\n
    payable to the member concerned.\n<\/p>\n
          As per sub section (4) the provisions of Section 49<\/a> shall not apply to<\/p>\n
    the persons employed in any railways and in mines and oil fields.\n<\/p>\n
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\n                                    9<\/span><\/p>\n
    7.    It is not disputed before us that the petitioner has complied with the<\/p>\n
    requirements of Section 49<\/a> (1) of the Act and that it has submitted the<\/p>\n
    requisition for deductions along with the copies of the agreement. On the<\/p>\n
    other hand it is contended that it is not obligatory on the part of the<\/p>\n
    respondents to oblige the petitioner if it did not comply with the directions<\/p>\n
    of respondent No.2 or 3, as the case may be, for accepting the name of its<\/p>\n
    officer as President and other officers as three nominee members on the<\/p>\n
    Managing Committee. The question that is required to be considered is<\/p>\n
    whether the respondents have the authority to impose such conditions to<\/p>\n
    discharge their obligations under Section 49(2)<\/a> of the Act and the answer<\/p>\n
    has to be in the negative.\n<\/p>\n
    8.    Bye law No.19 prior to its amendment in 1994, of the petitioner<\/p>\n
    society read as under:\n<\/p>\n
          “The Annual General Meeting shall be held before 15th August of
\n          every year and transact the business specified in the Bye-Law No.20.
\n          The President of the society shall be the Senior Superintendent of the
\n          Post Offices Poona Division, Poona in the First instance. The<\/p>\n
          General Manager, Telecom Poona in the Second instance. The
\n          Senior Superintendent R.M.S. Division Poona in the Third instance
\n          and the Division Engineer Wireless Poona in the Fourth instance and
\n          future by the same rotation. They should be requested to accept the
\n          post. In case the Officers deny to accept the post or resign the Board
\n          may elect any other Officer who is willing to accept the post.”\n<\/p><\/blockquote>\n
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\n                                   10<\/span><\/p>\n
    It was amended in the year 1994 for providing for several clarifications and<\/p>\n
    amendments.    The unamended bye law clearly goes to show that the<\/p>\n
    President of the Society shall be the Senior Superintendent of Post Officers<\/p>\n
    in the first instance, the General Manager Telecom Pune in the second<\/p>\n
    instance and the    Senior Superintendent R.M.S. Division in the third<\/p>\n
    instance as well as the Divisional Engineer Wireless Poona in the fourth<\/p>\n
    instance, by way of rotation. These officers were requested to accept the<\/p>\n
    post and in case they deny the same, the Board may elect any of the officer<\/p>\n
    who is willing to accept the post. As per the amendment of 1994, the<\/p>\n
    President would be appointed from amongst the gazetted officers of Posts,<\/p>\n
    R.M.S. as well as Telecom Department, and by election. This amendment<\/p>\n
    has been duly approved by the Competent Authority under the Act. Hence<\/p>\n
    it would not be appropriate for the respondents to say that Bye Law nos.19<\/p>\n
    and 20 or any other Bye Laws were illegally amended by the petitioner. It<\/p>\n
    is well settled that the Bye Laws of the society are binding on the said<\/p>\n
    society and either the post of President or Chairman\/Vice Chairman or any<\/p>\n
    member of the Committee must be filled in as per the scheme of the Bye<\/p>\n
    Laws. The request or demand made by the respondents for nomination of<\/p>\n
    the President and three members of the Managing Committee was not in<\/p>\n
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\n                                         11<\/span><\/p>\n
    keeping with the scheme of the Bye Laws and, therefore, in law the<\/p>\n
    petitioner could not have conceded to the said demand and accepted the<\/p>\n
    nominations. In short, the demands being made by the respondents were<\/p>\n
    contrary to law and the petitioner was called upon, in a way, to commit an<\/p>\n
    illegality in its administration.\n<\/p>\n
    9.    It has also been stated that the respondents have provided the office<\/p>\n
    premises and therefore by way of welfare measures when the facilities are<\/p>\n
    being extended by the employer, the directions issued by the employer<\/p>\n
    ought to have been conceded . We do not find any force in this contention.\n<\/p>\n
    Even otherwsie Rule 559 from Chapter XVIII of Miscellaneous Subjects<\/p>\n
    has been produced which reads as under:\n<\/p>\n
           559- Recoveries from the Salaries of the Government Servants on<\/p>\n
           account of dues of Co-operative Societies, registered under the
\n           various Co-operative Societies Act<\/a>s, where such Acts imposes the
\n           statutory obligation on the Government to made such deductions,<\/p>\n
           shall be made by the Drawing and Disbursing Officer in accordance
\n           with such procedure as may be laid down from time to time.\n<\/p><\/blockquote>\n
    10.          In our opinion, the scheme of Section 49(2)<\/a> clearly imposes the<\/p>\n
    statutory obligation on the respondents to make the deductions of loan and<\/p>\n
    interest thereon from the monthly salaries of the borrowing members of the<\/p>\n
    petitioner society and it cannot be accepted that unless there is an<\/p>\n
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\n                                     12<\/span><\/p>\n
    agreement signed between the employees and respondents, such deductions<\/p>\n
    are not required to be made by way of a statutory obligation. Accepting<\/p>\n
    such a view will be simply writing something which is not provided for in<\/p>\n
    Section 49<\/a> of the Act. It is well settled that the provisions of the statute are<\/p>\n
    required to be read as they are and no external aid for interpretations is<\/p>\n
    required unless the words of the statue are vague or lead to more than one<\/p>\n
    interpretations. We hold that it is obligatory on the part of the respondents<\/p>\n
    to effect the deductions as are required under Section 49<\/a> of the Act and<\/p>\n
    remit the deducted amounts with the petitioner society failing which the<\/p>\n
    penal provisions of sub section (3) of Section 49<\/a> would be applicable. We<\/p>\n
    are informed that by way of interim order passed by this Court, the<\/p>\n
    respondents have continued to do the deductions and as such deductions are<\/p>\n
    being done as of now as well. There is no reason to deviate from this<\/p>\n
    practice and the stand taken by the respondents in the impugned<\/p>\n
    communications is not in keeping with the legal obligations and therefore<\/p>\n
    unsustainable. Hence the communications must be quashed and set aside.\n<\/p>\n
    11.   In the premise, this petition succeeds and we quash and set aside the<\/p>\n
    impugned communication, including the communication dated 22.11.2000<\/p>\n
    as well as 29.12.2000. As directed by the interim order, the respondent nos.\n<\/p>\n
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\n                                    13<\/span><\/p>\n
    3 to 4 shall continue to extend the obligation to recover from staff salaries<\/p>\n
    of all the members in keeping with the scheme of Section 49<\/a> of the Act, so<\/p>\n
    long as such members are in service. Rule is thus made absolute and more<\/p>\n
    particularly in terms of prayer clause 7(b).\n<\/p>\n
    [R.Y.GANOO, J.]                                [B.H. MARLAPALLE, J.]\n\n\n\n\n                                       \n                        \n                       \n      \n   \n\n\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 15:16:46 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Co-Operative Credit Society Ltd vs The Union Of India on 7 November, 2009 Bench: B.H. Marlapalle, R.Y. Ganoo 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-256409","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nCo-Operative Credit Society Ltd vs The Union Of India on 7 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/co-operative-credit-society-ltd-vs-the-union-of-india-on-7-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Co-Operative Credit Society Ltd vs The Union Of India on 7 November, 2009 - 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