Madras High Court
All India Postal Extra Departmental vs Director General on 22 November, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.11.2013
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.32123 of 2002
All India Postal Extra Departmental
Employees Union, (Tamil Nadu Circle),
Southern Region, Madurai, Gandhinagar S.O.
Madurai 625 020
represented by its Regional Secretary
K.Kuppusamy. ... Petitioner
Vs.
1.Director General
Department of Posts
New Delhi 110 001.
2.Chief Post Master General
Tamil Nadu Circle
Anna Salai
Chennai 600 002.
3.Post Master General (Southern Region)
Madurai 625 002.
4.The Senior Superintendent of Post Offices
Madurai Division
Madurai 625 002.
5.The Special Officer
MM 3263 Madurai District Postal Extra
Departmental Employees Co-Operative
Thrift and Credit Society Ltd.
5/1 South Street, Tallakulam
Madurai 625 002. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified Mandamus, calling for the records of the respondents relating to the order of the first respondent bearing No.18-1/2002-WL and Sports dated 3.06.2002 and quash the same and direct the first to fourth respondents to forthwith grant to the fifth respondent viz. MM 3263 Madurai District Postal Extra Departmental Employees Co-Operative Thrift and Credit Society Ltd., the facility of recovery of monthly instalments towards the loan amounts granted by the said Society from the pay rolls of the members of the Society.
For Petitioner : M/s.G.Ramapriya and
Mr.T.Ramkumar
For Respondents : Mrs.Sangamithirai (for R1 to R5)
ACGSC
- - -
O R D E R
The prayer in the writ petition is for issuance of Writ of Certiorarified Mandamus, calling for the records of the respondents relating to the order of the first respondent bearing No.18-1/2002-WL and Sports dated 3.06.2002 and quash the same and direct the first to fourth respondents to forthwith grant to the fifth respondent viz. MM 3263 Madurai District Postal Extra Departmental Employees Co-Operative Thrift and Credit Society Ltd., the facility of recovery of monthly instalments towards the loan amounts granted by the said Society from the pay rolls of the members of the Society.
2. The brief facts of the case is as follows:-
The writ petitioner stated that he is the Secretary of the Southern Region Association namely All India Postal Extra Departmental Employees Union, (Tamilnadu Circle Southern Region, Madurai). This association affiliated to the National Federation of Postal Employees and is recognized under the Extra Departmental Agents (Recognition of Association) Rules, 1995. 304 Extra Departmental Employees in the Madurai Division and Theni Division are members of the said Association. All the 304 members of the Petitioner's Association are also members of the MM 3263 Madurai District Postal Extra Departmental Employees Co-Operative Thrift and Credit Society Limited. The said Society was formed as the Postal Extra Departmental Staff unlike the Departmental Staff who do not get loans from the Postal Department and do not have any other facility to obtain loans. The said Society was registered by the Deputy Registrar of the Co-Operative Society, Madurai Circle on 16.07.2001 vide his order bearing R.C.No.7712 of 2000 L.D.B(1) and the said Society began functioning on 22.08.2001.
3.The main objective of the said Society is to give personal loans to its members, the Society can obtain sufficient loan facility from the Madurai Central District Co-Operative Bank and began granting loans to its members only if the 1st to 4th respondents agreed to issue suitable directions to the Drawing and Disbursing Officers in the Madurai and Theni Divisions to recover the monthly instalments towards the loans granted from the pay roll of the concerned employees.
4.The Petitioner Association expressed their intention to the Co-operative Department to start the 5th respondent Society, pre-condition putforth by the Department was that the Postal Department must agree to recover the monthly instalments from the pay bill of the loanee employees and the amount so recovered should be remitted to the Society. Therefore, as the Regional Secretary of the Petitioner Association addressed a letter to the Post Master General, Southern Region, Madurai on 28.05.2001 in this regard. Thereafter, on 21.06.2001, the Post Master General, Southern Region, Madurai issued a letter bearing No.TEB/275-4/2001 stating that the Petitioner Association request to recover the due amounts from the loanee employees and to remit it to the Society could be complied with only if the following documents are produced namely (1) Certificate of Registration of the Society; and (2) Certificate of Commencement of Business.
5.Thereafter on 02.09.2001, copies of the said documents were forwarded and the Post Master General, Southern Region, Madurai was informed that the Society had started functioning with effect from 22.08.2001 and details of the Board of Directors were also furnished. It was also requested that necessary directions be issued to the Senior Superintendent of Post Offices, Madurai Division and the Superintendent of Post Offices, Theni Division for recovery from the pay rolls of the Loanee Employees when the Society submits recovery statements to the concerned Drawing and Disbursing Officers. However, no action was forthcoming pursuant to the said reply. Thereafter, on 17.11.2001, the Union made a representation to the Chief Post Master General, Tamil Nadu Circle, Chennai seeking that a discussion be held on the subject in the Four monthly meetings to be held on 03.01.2002. Again on 31.01.2002, the Circle Secretary of the Union made a representation to the Chief Post Master General, Tamil Nadu Circle, Chennai in this regard.
6.On 15.02.2002, the Post Master General, Southern Region, Madurai addressed a letter to the petitioner in his capacity as the Regional Secretary of the Petitioner Association stating that he has to apply for a "no objection certificate" for using the name of the Department in the name of the Society and also asked him to forward the Bye Laws of the Society. Accordingly, on 12.03.2002, the petitioner sent a reply forwarding the Bye Laws of the Society and sought that the necessary "No Objection Certificate" be issued to the Society. In the said reply, once again, the Association made a request that necessary permission be accorded for recovery of the dues towards the loan from the pay rolls of the Loanee employees pointing out that such recovery facilities is available in respect of similarly placed Extra Departmental employees in the State of Kerala and Andhra Pradesh Circles. On 01.05.2002, the "no objection certificate" for the use of the Department's name in the name of the Society was issued. However, even thereafter, the 2nd to 4th respondents did not grant us the facility requested for.
7.The petitioner further submitted that all their representations in this regard had thus been to no avail and it is nearly one year since the Society began functioning under these circumstances the 1st respondent rejected the Petitioner Association request by his letter dated 03.06.2002 on the ground that Gramine Dak Sevaks cannot be treated as Central Government employees, hence the Petitioner Association has filed the above writ petition to quash the 1st respondent's order and direct the respondents 1 to 4 to grant forthwith to the 5th respondent Society namely MM 3263 Madurai District Postal Extra Departmental Employees Co-Operative Thrift and Credit Society Limited, the facility of recovery of monthly instalments towards the loan amounts granted by the said Society from the pay rolls of the members of the Society and issue direction to the respondents. Hence, the above writ petition.
8.The respondents 1 to 4 have filed a reply affidavit and denied the allegation levelled in the writ petition. The respondent submitted that the Senior Superintendent of Post Offices, Madurai Division i.e. the 4th respondent herein sent a letter of clarification dated 21.08.2001 to the 3rd respondent namely Post Master General, Southern Region, on the contention that the Drawing and Disbursing Officers could not give an undertaking for recovery of loan dues from the Extra Departmental Official and remittance to the Co-Operative Society vide (1) Government of India's Decision below Rule 226 of Financial Hand Book Volume I and (2) Gramin Dak Sewak (i.e., GDS) Conduct and Employment Rulings 2001 communicated in the DG (Post)'s Letter No:22-1/2000 ED and Training dated 24.04.2001. On receipt of required documents from the petitioner, the 3rd respondent took up the matter with the Chief Post Master General, Tamil Nadu Circle, Chennai, the 2nd respondent herein, in respect of recovery of Co-operative dues from the ED Agents (i.e., GDS) and perused the matter by himself in respect of granting No Objection Certificate to use the Departmental Name in the formation of the Madurai District Postal Extra Departmental Employees Co-Operative Thrift and Credit Society Limited. The 3rd respondent then issued the No Objection Certificate to the Petitioner Association on 01.05.2002. The 2nd respondent namely the Post Master General referred the admissibility of recovery of Co-operative Credit Society dues from the salary of GDS's to the Director General (Posts), New Delhi, the 1st respondent herein, for clarification. The 1st respondent on the advice of Ministry of Law, clarified vide Letter No.18-1/2002 WL and Sports dated 03.06.2002 that "the rules in question refer only to recoveries from the pay of Government Servants and the deduction from the Time Related continuity Allowance (TRCA) being paid to Gramin Dak Sewak (GDS's) would not be legally permissible as GDS cannot be treated as Central Government Employees". The petitioner was duly informed on this clarification by the 3rd respondent vide Letter No.TCB/275-4/2001 dated 21.11.2002.
9.The respondents further submitted that the petitioner has failed to obtain No Objection Certificate from the Department for utilising the name of the Department for the formation of ED Credit Society. Only on pointing out of this lapse on 10.07.2001, the petitioner has come up with a request for "No Objection Certificate" on 02.09.2001, but failed to submit the bye-law which was subsequently submitted on 12.03.2002. After receipt of the above documents, the requested No Objection Certificate was issued on 01.05.2002. On receipt of required documents from the petitioner, the 3rd respondent took up the matter of recovery of Co-operative dues from the salary of ED Agents (i.e., GDS) with the 2nd respondent, who in turn had referred the admissibility of such recovery of Co-operative dues to the 1st respondent for clarification. Hence there is no willful delay on the part of Department.
10.It is submitted that on receipt of clarification from the 1st respondent that "the rules in question refer only to recoveries from the pay of Government servants and the deduction from the Time Related Continuity Allowance (TRCA) being paid to Gramin Dak Sewaks (GDSs) would not be legally permissible as GDS cannot be treated as Central Government Employee", the 3rd respondent had duly informed this to the petitioner. Thus, the decision communicated by the Directorate is well bound and within the purview of GDS (Conduct and Employment) Rules 2001.
11.The respondents further stated that the action of respondents 1 to 4 in not granting the facility of recovery of Co-operative dues from the salary of GDS is rule based, well bound and justified in all respects.
12.It is further submitted that as per Rule 226 of Financial Hand Book Volume I, the obligation on the part of the Drawing and Disbursing Officer is for recovery of Co-operative dues from the Government Servant and remittance to his Co-operative Society. As per the Gramin Dak Sewak (GDS) conduct and Employment Rulings 2001 i) A /sewak shall be outside the civil service of the Union and ii) A sewak shall not claim to be at par with the servant of the Government. So, the Ministry of Law has opined that it would not be legally permissible to make any deduction from the TRCA, being paid to the Gramin Dak Sewaks, as they are not regular Government Employees and are not in receipt of the monthly salary from the Department. Moreover, recoveries from the pay and allowance of the members of postal society and postman society are being orders as they are regular department staff covering Civil Services.
13.It is submitted that the issue of recovery of Co-operative Credit Society dues from the TRCA of GDS's has been carefully examined by the 1st respondent in consultation with the Branch Secretariat of Ministry of Law, Mumbai and it is seen that recoveries of dues of co-operative societies in case of Government Servants is regulated by the provision of Rules 559 and Appendix 29 of FHB Volume I. The Ministry of Law has opined that it would not be legally permissible to make any deduction from the TRCA being paid to the Gramin Dak Sewaks, as they are not regular Government Employees and are not in receipt of the monthly salary from the Department. Accordingly, the 1st respondent has issued instructions to all his subordinate units that "the deductions on account of the dues of the Co-operative Credit Societies should be strictly regulated as per the provision of aforesaid Financial Head Book provisions". So, the 1st respondent has applied his mind to the all concerned facts before coming to the abovesaid conclusion.
14.Further it is stated that the request of petitioner vide his letter dated 28.05.2001 to the 3rd respondent was upon two aspects, one being the request for permission to set up Madurai District Extra Departmental Co-operative Credit Society at Madurai and the other being the request for issuing instruction to the Heads of Postal Divisions at Madurai and Theni to arrange recovery of loan dues of the Society members cum loanees from their monthly payment (i.e., TRCA). The 3rd respondent vide his letter No.TCB/275-4/2001 dated 21.06.2001 had asked the petitioner to furnish the Certificate of Registration and the Certificate of commencement of business of the society for complying with the request of petitioner. On receipt of required Documents from the petitioner, the 3rd respondent pursued the matter in respect of the former request of petitioner by himself and took up the matter in respect of the latter request of petitioner with the 2nd respondent who, in turn, referred the case to the 1st respondent. The 1st respondent, after consultation with the Ministry of Law had come to the conclusion of non consideration of the latter request of petitioner.
15.The 1st respondent's conclusion of non consideration of the request of petitioner for arranging recovery of co-operative Society dues from the TRCA of GDS is well bound and justified in all respects as per the Rules of Department of Posts.
16.Further the 1st respondent had come to the conclusion of non-consideration of the request of petitioner only after going through the existing rules and orders in force and also consulting with the Ministry of Law. So, the reason stated in the Impugned Order for rejection of the request of petitioner is based on Rules of the Department of Posts and therefore justified.
17.Further the respondents 1 to 4 can act only as per the existing rules and orders in force in respect of any matter arising out of day-to-day dealings. When the Financial Hand Book provisions and the Gramin Dak Sewak conduct and Employment Rulings do not permit the respondents to accept the request of petitioner, the question of consideration upon other grounds does not arise at all.
18.The respondents submitted that as the existing rules and orders are totally against the request of petitioner for recovery of Co-operative Society dues from the Time Related Compensatory Allowance, being paid to the Gramin Dak Sewaks, the prayer of petitioner in this Writ Petition i) to issue an AD INTERIM DIRECTION to the respondents 1 to 4 to recover the society dues from the TRCA's of GDSs and ii) to issue a WRIT OF CERTIORARIFIED MANDAMUS calling for the records of respondents relating to letter No:18-1/2002-WL and Sports dated 03.06.2002, quashing the same, etc., do not have any further grounds for consideration.
19.The petitioner has filed an additional affidavit and stated as follows:-
The 4th respondent has taken a stand that the deduction towards recovery of loans availed through the employees cooperative credit and thrift society is not feasible for the class of employees represented by the petitioner as they do not get regular salary / pay from the Government. Such a statement is not correct as could be seen from the 9 documents which are filed along with the additional typed set of papers.
20.The petitioner further submits that the Extra Departmental Employes namely Gramin Dak Sewaks have salary bills and pay slips and recoveries are made for group insurance, security deposit, cycle loan, circle benevolent fund, welfare fund, etc. Therefore, it is submitted that when such recoveries are made, there is no valid reason for the respondents to refuse to give consent to deduct for collection of loans availed through cooperative thrift and credit society permitted under the Payment of Wages Act.
21.The learned counsel for the petitioner submits that the Petitioner Association consisting of 304 members and they are working with the Postal Department continuously for periods ranging from 4 years to 26 years. As such, there is employer-employee relationships which are prevailing between the petitioner employees Union and respondents 1 to 4. The petitioner employees Association workers have been paid yearly increments, gratuity, retirement benefits, death benefits. The very competent counsel further submits that similar societies of Postal employees are functioning at Madurai and they have been granted loans by the Society. Similarly in the same Department Andhra Pradesh and Kerala Circles had granted facilities to the similar category employees. The Union employees had been paid a sum of Rs.1,500/- as cycle advance, the same recovered by the employer every month until the said cycle advance amount is cleared. Further, the petitioner Association employees are not private individuals. They are recognized employees of the Postal Department. Their employment after fulfilling the necessary qualifications were appointed to the responding department for the said categories of employees, therefore, the petitioner association employees are entitled to avail the privileged facilities.
22.The learned counsel for the respondents submits that the employees are not regular employees, they are the Extra Departmental employees, as such they are not been paid regular salary. The cycle advance paid by the respondent without interest on their own risk but the respondent cannot furnish any guarantee or assurance to the 5th respondent credit Society towards any loan amount. Therefore, the respondents 1 to 4 cannot provide any facility of recovering the monthly instalments towards the loan amount granted by the Society from the pay rolls of the members of the Society.
23.From the above discussion, this Court is of the view: (1) for availing personal loan the requirement is the employee should be on the rolls as a permanent employee, thereafter for seeking a loan he / she should furnish particulars of gross salary, net salary, deductions, etc. in order to be assessed for the loan facility, this is intended to determine the repayment capacity of the employee and duration of the permanent services and superannuation. In the instant case, it does not arise. Therefore, mandatory accord cannot be served by this Court. (2) Extra Departmental employees cannot be treated as permanent employees, therefore, the petitioner request is void, hence respondents 1 to 4 cannot provide their cooperation for seeking and availing loan facilities, as such discrimination does not arise in this case. Further, for availing loan facility on the basis of interest personal right and fundamental right will not find coverage since it is only in the paying capacity criteria. Therefore, this Court cannot give a direction to the respondents 1 to 4 to stand guarantee furnish or assurance for the Extra Departmental employees.
24.On verifying the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the documents filed by them, this Court does not have sufficient force to allow the writ petition and hence stands a failure.
25.In the result, the above writ petition is dismissed and the order of the first respondent bearing No.18-1/2002-WL and Sports dated 3.06.2002, is confirmed. No costs.
22.11.2013
vs
Index : Yes/No
Internet : Yes/No
To
1.Director General
Department of Posts
New Delhi 110 001.
2.Chief Post Master General
Tamil Nadu Circle
Anna Salai
Chennai 600 002.
3.Post Master General (Southern Region)
Madurai 625 002.
4.The Senior Superintendent of Post Offices
Madurai Division
Madurai 625 002.
5.The Special Officer
MM 3263 Madurai District Postal Extra
Departmental Employees Co-Operative
Thrift and Credit Society Ltd.
5/1 South Street, Tallakulam
Madurai 625 002.
C.S.KARNAN, J.
vs
W.P.No.32123 of 2002
22.11.2013