Central Administrative Tribunal - Lucknow
Unknown vs Union Of India Through-Chief Post ... on 7 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
LUCKNOW BENCH, LUCKNOW.
Original Application No. 332/00152/2016
Order reserved on 28.04.2016
Pronounced on 07.05.2016
Honble Mr. Navneet Kumar, Member-J
Amit Kumar Jha, aged about 37 years, son of Sri Ugreshwar Jha, Resident of-Post Attached Quarter to Post Master, Post Office-Gomti Nagar, Lucknow.
.Applicant
By Advocate : Sri Raj Singh.
Versus.
1. Union of India through-Chief Post Master General, U.P. Circle, Lucknow.
2. U.P. Postal Primary Co-op. Bank Ltd., 3, Valmiki Marg, Lucknow through its Secretary.
3. Chief Post Master General, U.P. Circle Lucknow Ex-Officio President of U.P. Postal Primary Co-op. Bank Ltd.
4. Sri Manu Bakia, Post Master (Under Suspension), attached with Lucknow Chowk, Head Post Office, Lucknow.
.Respondents.
By Advocate : Sri P.K. Mishra for respondent no. 1 & 3.
Sri Surendran P for respondent no. 2.
Sri Praveen Kumar for respondent no. 4.
O R D E R
The present O.A. is filed by the applicant under Section 19 of A.T. Act with the following relief(s):-
8(i) This Honble Tribunal may kindly be pleased to quash the order dated 21.03.2016 passed by the opposite party no. 2 so far it relates to the applicant in respect of the loan taken by the opposite party no. 4. (contained in the annexure no.A-1to this OA)
(ii) The respondents may be directed to not recover the said amount of loan from the applicant, till realization of the security (agreement/personal bond) furnished by the opposite party no.4.
(iii) To pass such other orders which are found just fit and proper under the circumstances of the case.
(iv) To allow the Original Application with cost.
2. The applicant was initially appointed on the post of Postal Assistant and further promoted on the post of Post Master Grade- I. The applicant is a member of the U.P. Postal Primary Co-operative Bank Limited. The applicant while posted on the post of Post Master in Indra Nagar, in the year 2014, stood guarantor for one Shri Manu Bakia, opposite party no. 4, who took loan from the aforesaid bank. The opposite party no. 4 was placed under suspension and when the respondent bank fails to receive their dues issued a letter on 21.03.2016 to the Post Master, Gomti Nagar, Lucknow for releasing the amount from two officials out of which one is applicant.
3. The learned counsel for the applicant categorically indicated that the recovery from the salary of the applicant can not be done as the respondents have not yet declared the account as NPA and entire amount is to be recovered from the borrower and when borrower fails to pay amount only then amount is to be recovered from the guarantor. The learned counsel for the applicant was asked to indicate the order through which respondents are recovering the amount. In reply to this, it is indicated that such order is not passed by the respondents till date.
4. On behalf of the respondent no. 2 counter affidavit is filled and through counter affidavit it is indicated that the respondent no. 4 applied for a loan of Rs. 6,00,000/- for maintenance of the house which was sanctioned on 22.10.2014. The respondent no. 2 indicated that the applicant stood guarantor in the loan documents and he has signed a surety agreement wherein it is indicated that the surety undertakes full responsibility for repayment of loan and if borrower fails to repay the said loan or any installments thereof the guarantor will on demand jointly or severally pay the deductions from our pay or leaves salary or to any dues.
5. Apart from this the respondents have also taken a objection on maintainability of the original application before this Tribunal as U.P. Primary Co-operative Bank Limited is not notified as per the provisions of section 14 (2) of the Central Administrative Tribunal Act. Not only this the respondents have taken a shelter of Section 40, Section 70 and Section 96 of the U.P. Co-Operative Society Act and it is indicated that in regard to the settlement should have been referred to the arbitrator and incase any one is aggrieved by inaction of the bank there is a co-operative tribunal and any dispute is to be adjudicated before the Tribunal concerned. It is also argued that the Section 70 of the U.P. Co-Operative Act, 1965 provides that the dispute is to be referred to the Registrar of co-operative societies. Thus the applicant has an alternate remedy available to him and the decision of the Registrar can be challenged before the co-operative Tribunal as per Sction-96 of the Act.
6. On behalf of the respondent no. 4 a short counter reply is filed and through which it is indicated that the respondent no. 4 is regularly making payment of the dues and the present original application is not maintainable before this Tribunal. The learned counsel for the respondent no. 4 also relied upon a decision of Madras Bench of this Tribunal and it is indicated that the similar issue is taken up and the Tribunal dismissed the original application on the ground of maintainability as the Tribunal has no jurisdiction to deals this issue.
7. The learned counsel for the respondent no. 2 also relied upon a decision of Honble High Court in the case of Balram Vs. State of U.P. and others reported in (2002) 2 UPLBEC 1138, wherein it is observed by Honble High Court that the liability of the guarantor is co-extensive with that of the Principal debtor. Hence no interference is called for in the impugned recovery.
8. On behalf of the applicant no rejoinder is filed to the counter reply of the respondent no. 2 or short counter reply of the respondent no. 4. However, learned counsel for the applicant relied upon a decision of Honble High Court in the case of Narendra Kumar Srivastava vs Union of India and others decided on 20.09.2012 in Writ Petition No. (C) 35480 of 2010.
9. Heard learned counsel for the parties and perused the records.
10. The applicant was working in the respondents organization stood guarantor in a loan taken by the respondent no. 4 and while taking loan, he stood guarantor and executed the surety agreement which reads as under:-
we the undersigned being the member of U.P. POSTAL PRIMARY CO-OPERATIVE BANK LTD., LUCKNOW here by jointly and severally agree and bind ourselves that if Manu Bakia son of Jawahar Lal Yadav who has borrowed a loan of Rs. 600000/- (in words) Six lack only from the bank and for whom we have stood surety undertake full responsibility regarding repayment of loan taken by him on condition stated by the debtor on reverse vide our consent in the loan application. If borrower fails to repay the said loan or any instalments there of with interest in manner agreed upon, we will on demand jointly or severely pay the deductions from our pay-or leave salary or any money due to us or otherwise the said loan or instalments thereof as the case may be in the said Bank or its assigns without objection of any kind who to ever and liability will be co-extensive with the Principal debtor. In this surety agreement, the applicant has appended his signature as surety no. 1.
11. The bare perusal of paper book also shows that the applicant has challenged the order dated 21.03.2016 which is written by Secretary, U.P. Postal Primary Bank Limited to the Post Master, Gomti Nagar, Lucknow but it is not endorsed to the applicant. However as per list attached the name of the applicant finds placed from whom the amount is to be recovered. It is also to be indicated that the respondents have taken the ground of maintainability of the application and jurisdiction of this Tribunal and indicating that without availing alternative remedy the present application is filed before this Tribunal. As per Section 14 of the Administrative Tribunal Act it can be stated generally that the Tribunal shall have jurisdiction in relation to service matter. Service matters have been defined under Section 3 (q) meaning all matter relating to condition of his service in connection with the affairs of the union. Therefore, the question is whether the deduction made by official respondents relates to the condition of service of the applicants.
12. Section 40 of the U.P. Co-Operative Societies Act provides deduction from salary to meet societys claim in certain cases. The said section reads as under:
(1) notwithstanding anything contained in any law for the time being in force, but subject to such conditions, if any, as may from time to time be laid down by the State Government, a member of a co-operative society may execute an agreement in favour of the society providing that his employer shall be competent to deduct from the salary or wages payable to him by the employer such amount as may be specified in the agreement and to pay the amount so deducted to the society in satisfaction of any debt or other demand owing by the member of the society.
(2) Notwithstanding anything in any law for the time being in force, the employer shall, if so required by the co-operative society by requisition in writing and so long as such debt or demand or any part of it remains unpaid, make the deduction in accordance with the agreement executed under sub-section (1) and pay the amounts so deducted to the society within fourteen days from the date of deduction.
(3) An employer who without sufficient cause fails to make the deduction in terms of sub-section (2), or having made, any such deduction fails to pay the amount so deducted to the society within fourteen days from the date of deduction, shall be liable to the society to the extent of the amount which the employer has failed to deduct or to pay, as the case may be.
13. Section 70 of the aforesaid act deals with the disputes may be referred to arbitration. The Section 70 reads as under;-
(1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arise-
(a) Among members, past members and person claiming through members, past members and deceased members; or
(b) Between a member, past member or any person claiming through a member, past member or deceased member, and the society, its committee of management or any officer, agent or employee of the society, including any past officer, agent or employee; or
(c) Between the society or its committee and any past committee, any officer, agent or employee or any past officer, pas agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or
(d) Between a co-operative society and any other co-operative society or societies;
such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute:
[Provided that a dispute relating to an election under the provisions of this Act or rules made there under shall not be referred to the Registrar until after the declaration of the result of such election.] (2) for the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely-
(a) claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party;
(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor or whether such debt or demand is admitted or not;
(c) a claim by a society for any loss caused to it by a member, officer, agent, or employee including past or deceased member, officer, agent, or employee, whether individually or collectively and whether such loss be admitted or not; and
(d) all matters relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office-bearers.
(3) If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.
14. Apart from this there is a Co-Operative Tribunal as per the Section 96 of the Co-Operative Societies Act and which provides for appeal and review. Section 96 reads as under:-
96. Co-operative Tribunal-(1) The State Government may constitute a tribunal or tribunals, each to be called Co-operative Tribunal, to exercise the functions conferred on the tribunal under this Chapter and where more than one tribunal is constituted, the State Government may fix, by order in writing, the area within which or the class of cases over which each tribunal shall exercise jurisdiction.
(2) A Tribunal shall consist of [* * *]87 three persons possessing such qualifications as may be prescribed.
(3) Where the Tribunal consists of three members, any two members shall form the quorum for the disposal of its business:
Provided that in the event of a difference of opinion between them the matter over which there is a difference of opinion, shall be deemed to be the opinion of the Tribunal. Where a matter is heard by all the three members of the tribunal and there is a difference of opinion, the majority opinion shall prevail.
(4) Any vacancy in the membership of the Tribunal shall be filled by the State Government.
(5) The procedure for holding the meeting and disposal of business by a Tribunal shall be such as may be prescribed.
87.Omitted by U.P. Act 17 of 1994 (w.e.f. 15-7-1994)
15. It is also to be indicated that the Honble High Court in the case of Balram Vs. State of U.P. & Others (Supra) wherein Honble High Court have been pleased to observed that it is well settled that the liability of guarantor is co-extensive with that of the Principal debtor and it is a desecration of creditor whether to proceed against the principal debtor or guarantor.
16. The case law so cited by the applicant is not applicable in his case. A bare perusal of entire proceeding available on records shows that the impugned order which is challenged in the OA is issued by the Secretary, U.P. Primary Co-operative Bank Limited to the Post Master, Gomti Nagar Post Office, Lucknow and the said letter is not address to the applicant and impugned order is issued by the bank who is not notified under the Administrative Tribunal Act.
17. Considering the submissions made by learned counsel the parties and also perusal of the records I am of the considered view that the present OA is not maintainable and this Tribunal has no jurisdiction to deals with the issue raised by the applicant in the present O.A. Hence the OA is dismissed. No order as to costs.
(Navneet Kumar) Member-J JNS/-
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