Central Administrative Tribunal - Allahabad
Saroj Kumar vs D/O Post on 8 February, 2024
OA No. 330/1184 of 2018
(Open Court)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Allahabad this, the 08th day of February, 2024
Original Application No. 330/1184 of 2018
HON'BLE MR. JUSTICE RAJIV JOSHI, MEMBER (J)
Saroj Kumar, S/o Shri Awadh Bihari Sharma, aged about 56 years, R/o
27-F/10B Chak Niratul, Chauftaka, District-Allahabad
....Applicant
By Advocate: Shri K.K. Mishra
VERSUS
1. Union of India through Secretary, Ministry of Communication,
Department of Post and Telegraph, New Delhi
2. The Senior Superintendent of Railway Mail, R.M.S., 'A' Division,
Allahabad
3. Branch Manager, U.P. Postal Primary Cooperative Bank Ltd.
Allahabad
4. Sanjay Kumar, S/o late Nekram, R/o 14/B Loko House Colony,
RMS, District Allahabad
......Respondents
By Advocate: Shri Vidyapati Tripathi, Shri Dharmendra Tiwari
ORDER
1. The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed with the main relief to the effect that the respondents be restrained from making any deduction from the monthly salary of the applicant and further to quash the proceedings/order, if any, passed by the respondents for Page 1 of 11 OA No. 330/1184 of 2018 deductions from the monthly salary of the applicant and direction be issued to refund the amount, which has already been deducted from the monthly salary of the applicant.
2. The facts leading to this Original Application as apparent from the record that the applicant is presently working as Mailman re- designated as Multi-Tasking Staff (hereinafter referred as 'MTS') in the R.M.S. 'A' Division, Allahabad. Sometimes, in January, 2010, one the employee of R.M.S. i.e. respondent No.4.-Sanjay Kumar-II was also working as a Mailman, took personal loan from respondent No.3, which is a Co-operative society, registered under U.P. Co-operative Societies Act, 1965. The applicant and one Shri U.S. Ojha were guarantors of the borrower. The respondent No.4 was irregular in payment of the said loan, however, the respondent No.3 given other loan facilities like regular loan, emergent loan, scooter loan and computer loan to the respondent No.4 and thereafter, the account has been declared as Non Performance Asset (hereinafter referred as 'N.P.A').
3. It is further the case of the applicant that in the year, 2014, the Cashier of the Division orally intimated the applicant to ensure the repayment of loan advance to the respondent No.4 otherwise, deductions from the salary of the applicant will be made.
4. Pursuant thereto, the applicant moved an application to the respondent No.2, stating therein respondent No.4 is already working and as such, deduction will be made from the salary of the respondent No.4. Similarly, the Karmchari Union was also represented before the respondent No.2 regarding said deductions from the salary of the applicant. After the said representations, the deductions were Page 2 of 11 OA No. 330/1184 of 2018 stopped from the salary of the applicant, but in the year, 2017 again deductions were started from the salary of the applicant that too without any prior information to him. Aggrieved by the same, the applicant again represented before the respondents on 18.05.2017 followed by reminders dated 10.08.2017, 29.08.2017 and 11.09.2017 respectively with a request to stop recovery of the loan, taken by the respondent No.4 from the salary of the applicant, but no heed was paid.
5. The applicant also moved an application under RTI Act, 2005, for supply of documents. In response, the respondent No.2 replied that office has no role in recovery and the office is merely giving effect to the recovery forwarded by the respondent No.3. Thereafter, the applicant again represented before the respondent No.2 stating therein that respondent No.4 is already in service and as such, deductions be made from his salary and appropriate proceedings be taken against him, but no heed was paid. Hence, the applicant has been constrained to approach this Tribunal by means of present Original Application.
6. On registration of the instant Original Application, this Tribunal vide interim order dated 21.12.2018 directed the respondent Nos.2 & 3 not to over deduct loan from the salary of the applicant till filing of the counter-affidavit by the respondents. The relevant portion of the said order is quoted as under for ready reference:-
Looking to the facts of the case, respondent Nos.2 and 3 are directed not to over deduct loan from the salary of the applicant till filing of the counter affidavit by the respondents. However, it is made clear that Bank is at liberty to proceed against respondent No.4 in accordance with rules and Page 3 of 11 OA No. 330/1184 of 2018 regulation for recovery of loan amount. Learned counsel for the respondents is grant 2 weeks to file C.A. However, learned counsel for the respondents submitted that he be given 4 weeks time to file C.A. Accordingly, 4 weeks time is given to file C.A.
7. Subsequently, counter-affidavit was filed on 12.12.2019 by the respondent Nos.1 to 3, wherein it is stated at para 4 that present Original Application is not maintainable 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. In support of the said statement, the respondents relied upon the order/judgment dated 28.04.2016, passed by CAT Lucknow Bench in O.A. No.332/00152/2016 (Amit Kumar Jha Vs. Union of India & Ors.).
8. The counsel for the respondents have also relied upon the judgment of Allahabad High Court in case of Balram Vs. State of U.P. & Ors., reported in (2002) 2 UPLBEC 1138.
9. In reply, rejoinder-affidavit has been filed by the applicant, wherein it has been stated that the applicant has approached this Tribunal to redress his grievance against the illegal dedication by the office of Senior Superintendent RMS 'A' Division, Allahabad. In service jurisprudence there is no scope of oral direction.
10. It is further stated in rejoinder-affidavit that the respondent No.2 has not initiated any disciplinary proceeding against the applicant at any point of time and no notice was given to the applicant before deduction from his salary and also no recovery order has been passed by the respondents.
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OA No. 330/1184 of 2018
11. I have heard Shri K.K. Mishra, learned counsel for the applicant and Shri Vidyapati Tripathi, learned counsel for the respondent Nos.1 & 2 and Shri Dharmendra Tiwari, learned counsel for the respondents No.3 and perused the records.
12. Nobody appears on behalf of respondent No.4 although notice has been served to him on 12.04.2023 and as per the previous order of this Tribunal, the notice is deemed to be sufficient.
13. Shri K.K. Mishra, learned counsel for the applicant would submits that the respondent No.4 is already in service and as such, deduction ought to have been made from the salary of the respondent No.4. The respondent No.2 illegally and arbitrary deducted some amount from the salary of the applicant. The respondent No.2 has completely overlooked the fact that there is no contract between the applicant and the respondent Nos.1 & 2 with regard to the liability of re- payment of loan from the applicant. It is always open to the respondent No.3 to enforce the agreement in accordance with provisions of U.P. Cooperative Societies Act, 1965.
14. It is further submitted by the counsel for the applicant that the respondent No.2 is not the agent of subordinate of respondent No.3 to recover the loan amount. The respondent No.2 has not initiated any disciplinary proceeding against the applicant at any point of time and no notice was given to the applicant before deduction from his salary and also no recovery order has been passed by the respondents. There is no provision that dues of the Cooperative Societies can be directly recovered from the pay of an employee, who is surety/guarantor. As per the terms and conditions of the Agreement Page 5 of 11 OA No. 330/1184 of 2018 executed between Bank and Borrower, the deductions, if any, has to be ensured firstly from the salary, Gratuity, GPF, Pension or any other money from the borrower.
15. On the other hand, Shri Vidyapati Tripathi, learned counsel appearing on behalf of the respondent Nos.1 & 2 submits this original application is not maintainable. The applicant has not approached the proper forum to decide the said dispute. The deduction was made as per Rules of Co-operative Bank Ltd. and consent was given by the applicant at the time of agreement. 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. As the respondent No.4 was defaulter, recovery of instalment could not be done and as such, according to the bond of surety, the list of recovery instalment was sent to HRO Allahabad by U.P.Postal Cooperative Bank Limited for recovery from the pay of applicant, who is guarantor. The applicant made signature on the surety bond form and taken responsibility that if barrower became defaulter, he will pay the instalment of loan and on the basis of surety, the loan was granted to respondent No.4 and as such, instant O.A. is not maintainable and is liable to be dismissed.
16. Having heard the rival submissions of learned counsel for both the parties and on perusal of records, it appears that the applicant is an employee of respondent Nos.1 & 2 stood guarantor/surety in a loan taken by the respondent No.4, whereby an agreement was executed between the parties, wherein specific condition was that if barrower became defaulter, the applicant will pay remaining loan amount as liability of guarantor is co-extensive like principal debtor. Page 6 of 11
OA No. 330/1184 of 2018 The respondents have taken the ground of maintainability of the application and jurisdiction of this Tribunal and indicated that without availing remedy the present application has been filed.
17. Similar issue fell for consideration before Central Administrative Tribunal, Lucknow in O.A. No.152/2016 {Amit Kumar Jha Vs. Union of India & Ors. (supra)}, The relevant portion of the said order is quoted as under:-
10. The applicant was working in the respondent's 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) Page 7 of 11 OA No. 330/1184 of 2018 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 society's 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 Page 8 of 11 OA No. 330/1184 of 2018 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 Page 9 of 11 OA No. 330/1184 of 2018 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)
18. Further, the Allahabad High Court in case of Balram Vs. State of U.P. & Ors., reported in (2002) 2 UPLBEC 1138, it has been held 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'.
19. In view of the above discussions, I am of the considered opinion that the present O.A. is not maintainable as this Tribunal has no jurisdiction to deals with the issue raised by the applicant in the Page 10 of 11 OA No. 330/1184 of 2018 present O.A. Hence, instant O.A. stands dismissed as not maintainable. No order to costs.
20. Interim order, if any, stands vacated.
21. All MAs pending in this O.A. also stand disposed off.
(Justice Rajiv Joshi) Member (J) PM/-
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