Manohar Bapuraoji Zingare v. The Divisional Controller
2007-02-12
C.L.PANGARKAR
body2007
DigiLaw.ai
JUDGMENT:- This is a revision against the order passed by District & Sessions Judge in Misc. Civil Appeal No.39 of 1995 and Misc.Civil Appeal No.59 of 1995. 2. The facts giving rise to this revision application are as follows: Manohar and Chandrashekhar who are the employees of the Maharashtra State Road Transport Corporation filed a case under Section 15(2) and 15(3) of the Payment of Wages Act. Applicants Manohar and Chandrashekhar are serving with the M.S.R.T.C. One T. S. Rao was also their colleague. All of them were members of a Society i.e. Non applicant No.3. T. S. Rao had obtained a loan from the Society. Deductions for repayment of the loan were being made from the salary of T.S. Rao. When the loan was advanced to T. S. Rao the present applicants had offered their guarantee. Before the loan was repaid fully T. S. Rao was transferred from Bhandara to Chandrapur. The said T. S. Rao submitted his resignation and the said resignation was accepted. M.S.R.T.C. who pays the salaries of the employees however neglected to verify from the non applicant No.3 Society as regards the dues of T. S. Rao. The non applicants 1 and 2 i.e. the M.S.R.T.C. authorities started deducting the loan that was outstanding against T. S. Rao from the salary of the present applicants. It is alleged that they have illegally received Rs.1050/- from the salary of the applicants. 3. Being aggrieved by such deductions the present applicants filed application No.30/91 before the Payment of Wages Authority. The said authority after hearing the parties allowed the application and directed the non applicants M.S.R.T.C. to refund the amount wrongly deducted by them to the applicants. Being aggrieved by that, non applicant No.1 and 2 i.e. M.S.R.T.C. preferred appeals before the District & Sessions Judge. The District & Sessions Judge disagreed with the findings recorded by the lower Court and held that the deductions which were being made by the M.S.R.T.C. were not illegal and, therefore, directed the amount which the M.S.R.T.C. had deposited to the applicants to be paid back to the M.S.R.T.C. 4. Being aggrieved by that order this revision has been preferred. 5. Loan was obtained by Mr. T.S. Rao and the present applicants were undisputedly the guarantors.
Being aggrieved by that order this revision has been preferred. 5. Loan was obtained by Mr. T.S. Rao and the present applicants were undisputedly the guarantors. Since, before, entire loan could be recovered, Shri. Rao left the services, the loan is sought to be recovered from the salary of the present applicants. Shri. Talmale the learned counsel for the applicants contended that the loan cannot be recovered by deductions from the salary, since such deductions would be illegal under Section 7(2)(j) of the Payment of Wages Act. He submitted that the Society for whom such deductions are to be made must be a society approved by the Government. It has to be seen that the non applicant Society is a Society formed by the employees of the M.S.R.T.C. and the applicants are members thereof. Before dealing with the arguments of Shri. Talmale with regard to Section 7 of the Payment of Wages Act, it would also be necessary to refer to Section 49 of the Maharashtra Co-operative Societies Act. Section 49 of the Maharashtra Co-operative Societies Act authorises the employer to deduct from salary of the employee the amount recoverable by the Society from such employee. The Society is supposed to make a formal request to the employer to deduct from the salary the amount due to the society. Section 49 not only envisages such deductions but speaks of penal action being taken against the employer who does not pay heed to the requisition of the said society. Thus it is clear that it is absolutely difficult to reconcile both provisions i.e. Section 7 of payment of wages Act and Section 49 of the Maharashtra Cooperative Societies Act. One says that unless society is approved by state Government no deductions should be made while the other does not put such embargo and on the other hand speaks of penalty for non deductions irrespective of fact whether such society is approved or not. The Gujrat High Court, in Baroda Spg. & Wvg. Mills Co. Ltd. Vs. Baroda Spg. Wvg. Mills (Rajratna Sheth Zaverchand Laxmichand) Co-operative Credit Society Ltd., Baroda & Anr., 1976 Gujrat Law Reporter 555, faced with similar situation said that in such situation well known cannon of construction would be attracted. The well known cannon is a harmonious construction.
The Gujrat High Court, in Baroda Spg. & Wvg. Mills Co. Ltd. Vs. Baroda Spg. Wvg. Mills (Rajratna Sheth Zaverchand Laxmichand) Co-operative Credit Society Ltd., Baroda & Anr., 1976 Gujrat Law Reporter 555, faced with similar situation said that in such situation well known cannon of construction would be attracted. The well known cannon is a harmonious construction. It is observed thus : "Clause U) of Sec.7 of the Payment of Wages Act, 1965, brings to forefront a situation which often arises when a state legislation attempts to meet with a requirement of a Central Legislation and both are not made in conformity with each other. Sub-Clause (j) of sec.7 of the payment of Wages Act permits deduction for payment to the Co-operative Society, which must be a co-operative society, approved by the State Government, while sec.24-A of the Bombay Co-operative Society Act 1925 permits a deduction to be made pursuant to an agreement executed by a member of the society in favour of the society irrespective of the fact whether such society is approved by the State Government or not. Conflict between clause (j) of the Payment of Wages Act and sec.24-A of the Bombay Cooperative Societies Act is more apparent than real and in such a situation, well known cannon of construction would be attracted. Harmonising two provisions without doing violence to the language of either is quite well known. Central enactment namely Payment of Wages Act postulated that sec.7(j) would apply only in respect of those co-operative societies which were approved by the State Government; but the State Legislature presumably was quite aware of the specific provision while enacting sec.24A and clearly manifested its intention by not employing therein, any words of limitation or qualification such as approval of the society by the State Government which would unmistakably indicate that State Legislature wanted to clothe every society with the approval as contemplated by sec.7(j) by Payment of Wages Act. Whatever little conflict that came to surface while reading sec.7(j) of the Payment of Wages Act with sec.24-A of the Bombay Co-operative Societies Act vanished into thin air once Bombay Co-operative Societies Act 1925, is repealed and replaced by the relevant provisions contained in sec.50(1) of the Gujrat Co-operative Societies Act.
Whatever little conflict that came to surface while reading sec.7(j) of the Payment of Wages Act with sec.24-A of the Bombay Co-operative Societies Act vanished into thin air once Bombay Co-operative Societies Act 1925, is repealed and replaced by the relevant provisions contained in sec.50(1) of the Gujrat Co-operative Societies Act. Therefore, viewed from either angle, the deductions from the wages of an employee who is a member of a co-operative society at the instance of the co-operative society for satisfying the debt or demand of the society from the member by the employer of such member pursuant to the requisition made by the society would be wholly covered by the provisions of the Payment of Wages Act and would be legal and valid. In fact an agreement between the society and its member as envisaged by sec.50(1) would impose a statutory liability on the employer of such member to make deduction from the wages or salary payable to such person pursuant to a requisition made by the Co-operative Society of which such employee is a member. Right and obligation of the society and employer originate in an agreement between a co-operative Society and its member but result into a statutory liability of the employer of such member of a co-operative society." 6. Here one must bear in mind that the society is formed by the employees themselves for their own benefit. If the amount is not recovered it will be society which will lose, but where a society loses the employee too loses because ultimately it is the employee ' money which is the capital of the society. The words "Society approved by State Government" in clause (j) of Section 7 of Payment of Wages Act will have to be interpreted in a way the society does not lose. Word approved has been used perhaps with a view that there should be some restrictions on society which is unscrupulous and of which employee is not a member. It is with a view to protect the employee from the clutches of the unscrupulous society or who wants to forcibly and even illegally recover the money from the employee. Where the employee is member of a society and has himself authorised to deduct an amount" from the salary cannot say that the society is not approved and such interpretation would in fact be contrary to the intent of the legislature.
Where the employee is member of a society and has himself authorised to deduct an amount" from the salary cannot say that the society is not approved and such interpretation would in fact be contrary to the intent of the legislature. To my mind, therefore, in such cases approval of the State Government to the Society would not be necessary. That would not be necessary also because of the fact that employee himself has voluntarily agreed to the deductions. Further more if these provisions i.e. Clause j of Section 7 of the Payment of Wages Act is not interpreted in that fashion that would render Section 49 of the Maharashtra Co-operative Societies Act nugatory. Section 49 does not put a condition of society being approved. Section 49 has been in fact drafted bearing in mind the Payment of Wages Act for it makes a reference to the said Act in that Section itself. Sub-Section 2 of Section 49 says that the employer shall pay the amount so deducted to the society as if it were part of wages payable by him as required under the Payment of Wages Act. Thus Section 49 authorises such deductions inspite of the provisions of Clause j of Section 7 of Payment of Wages Act. Since Sub-Section 2 of Section 49 says that any money deducted and paid to the society shall be deemed to be payment of wages 'under the Payment of Wages Act and Clause j would not come in the way of deductions at all, and as said earlier the bar would not apply to the transaction between Society and the member. I would, therefore, conclude that in present case the bar of words "approved" by State Government would not come in the way of society recovering the amount from the member on an undertaking. 7. It was contended that M.S.R.T.C. was bound to recover the amount from the principal borrower only and it having failed inspite of opportunity to recover cannot recover it from the applicants. An undertaking given is of Joint and several liability. Since the liability is joint and several the society has right to recover it from the guarantors. I, therefore, find that there is no substance in the revision. Although for different reasons the revision is dismissed. Revision dismissed.