Ashok Kumar Swain v. Odisha State Cooperative Bank Ltd.
2019-06-25
B.R.SARANGI
body2019
DigiLaw.ai
JUDGMENT : B.R. Sarangi, J. 1. The petitioners, 14 in numbers, are Class-IV employees of the High Court of Orissa and they have filed this writ application challenging the action of the opposite party bank in insisting upon 100%, collateral security vide Clause-6(c) of the scheme formulated by the bank in Annexure-4 applicable exclusively to the employees of High Court of Orissa, and seek for a direction to the opposite party bank to sanction personal loan in favour of the petitioners and other Class-IV employees working in the High Court of Orissa without insisting upon the terms and conditions contained in Clause-6(c) of the Scheme issued under Annexure-4. However, in course of hearing learned counsel for the petitioners contended that the prayer made in the writ application may be moulded to the effect that sub-clauses (a) to (e) of Clause-5, after the word "Or", of personal loan scheme framed exclusively for salary earners under Annexure-7 series communicated on 30.11.2009, may be made applicable in respect of Class-IV employees of Orissa High Court. 2. The factual matrix of the case, in hand, is that the petitioners are class-IV employees of the High Court of Orissa and their services are non transferable. They being low paid employees, in order to meet various Urgent needs, they used to avail loans from different commercial banks including the opposite party-bank. The Drawing and Disbursing Authority (DDO), for the purpose of sanction of personal loan, also used to give necessary endorsement in the prescribed proforma to the bank for deduction of monthly EMIs and remittance of the same to the bank An office memorandum dated 12.04.2012 was issued by the Government, wherein instruction was issued to all the DDOs not to provide any endorsement/undertaking either for recovery of the loan amount or as guarantor for sanction of personal loan by the bank Consequentially, due to non-furnishing of endorsement/undertaking by the DDO, the petitioners could not be able to avail personal loan from the opposite party bank. 2.1. The Orissa High Court Class-IV Employees Association challenging the office memorandum dated 12.04.2012 filed W.P. (C) Nos. 21428 of 2014 and the petitioners along with others filed W.P. (c) No. 1907 of 2016.
2.1. The Orissa High Court Class-IV Employees Association challenging the office memorandum dated 12.04.2012 filed W.P. (C) Nos. 21428 of 2014 and the petitioners along with others filed W.P. (c) No. 1907 of 2016. This Court vide order dated 16.03.2016 directed that in the event an employee seeks a salary certificate in order to avail any personal loan from the bank, the DDO will issue the same indicating details of the bank and account number as well as salary details of the employee and further clarified that it shall be open for the petitioner- association to approach the bank by offering Pre-Dated Cheque (PDC) and/or salary instructions for deduction of dues from their bank account. But the bank, without following directions of this court contained in order dated 16.03.2016, refused to sanction personal loan on 04 07 2016 to the Class-IV employees in absence of undertaking and recommendation of the DDO. Thereafter, the petitioners again approached this Court by filing W.P. (C) No. 12297 of 2016. In that case, though notice was issued, the opposite party-bank did not choose to appear. The said writ petition, vide order dated 16.01.2017, was disposed of with a direction that in case any Group-'D', (Class-IV) employee of this Court desires for opening of his S.B. account in Odisha State Co-operative Bank Ltd., Cuttack with request to remit his salary and other emoluments to such account, the Registry of this Court shall permit the same. It was further made clear that it shall be open to the employees who so desired, to apply for loan to the bank concerned with undertaking for deduction of loan EMIs from such salary account, if sanctioned, neither the Registry nor the DDO shall be responsible. Again vide order dated 24.01.2017, this Court held that the Class-IV employee who avails loan with undertaking for deduction of loan EMIs from his SB account shall not be allowed to transfer such SB account to any other bank before clearance of the loan. Even though successive orders were passed, the bank did not sanction personal loan in favour of the petitioners and other Class-IV employees basing on communication dated 06.04.2017, which was challenged in W.P. (C) No. 7984 of 2017.
Even though successive orders were passed, the bank did not sanction personal loan in favour of the petitioners and other Class-IV employees basing on communication dated 06.04.2017, which was challenged in W.P. (C) No. 7984 of 2017. Pursuant to notice issued in that writ petition, the opposite party bank entered appearance and agreed to withdraw the requirement of undertaking to be given by the DDO and also agreed to frame a new scheme for sanction of personal loan in favour of Class-IV employees working in the Registry of the High Court of Orissa Accordingly, the said writ petition was disposed of on 23.06.2017. 2.2. As a consequence thereof, a new scheme was framed wherein under Clasue-6(c) the opposite party bank insisted for furnishing 100% collateral security in the shape of assigned LIC policy, postal securities, marketable immovable property so as to avail the personal loan Challenging such clause, the petitioners filed WP(C) No. 19055 of 2017 and after hearing the learned counsel for the parties, this Court disposed of the said, writ petition, vide order dated 24.11.2017, directing the Board of Management of the opposite party bank to reconsider the retention of Clause-6(c) in the scheme vide Annexure-4, so far as the low salaried persons are concerned, taking into consideration the objection filed by the petitioners in detail and take a conscious decision in the matter within four months from the date of receipt of a certified copy of that order. In compliance of the said order, the Board of Management refused to withdraw Clasue-6 (c) vide letter dated 09.02.2018 in Annexure-6 Hence this application. 3. Mr.
In compliance of the said order, the Board of Management refused to withdraw Clasue-6 (c) vide letter dated 09.02.2018 in Annexure-6 Hence this application. 3. Mr. B.P. Satpathy, learned counsel for the petitioners contended that the opposite party bank framed a personal loan scheme exclusively for salary earners, which was communicated on 30.11.2009 in Annexure-7 series The petitioners, being salary earners, the said scheme is applicable to them But, in order to deprive the petitioners of getting the personal loan scheme, as they are challenging the action of the opposite party bank time and again by approaching this Court, a separate personal loan scheme for the employees working in the Registry of the High Court of Orissa has been framed vide Annexure-4 and under Clause-6(c) thereof the opposite party bank has insisted upon furnishing of 100% collateral security in shape of assigned LIC Policy, Postal Securities and marketable immovable property Though there was no justification for issuance of a fresh scheme for those category of employees, the opposite party bank has taken such steps only with a view to depriving such type of employees of getting the benefit of personal loan scheme available in Anrrerure-7 series dated 30.11.2009 Clause-6(c) of the scheme framed for the employees of the High Court of Orissa, having been challenged before this Court, this Court left the matter to the Board of Management Committee to take a fresh decision thereon, but the opposite party bank refused to withdraw such clause Therefore, finding no other way out, the petitioners have approached this Court by filling the present application. 4. The opposite party bank, on being noticed, entered appearance through learned counsel Mr. K.P. Nanda and filed counter affidavit. He contended that in the past about 147 staff working under the Registry of the High Court of Orissa had availed loans under personal loan scheme for salaried employees from Jail Road Branch of Orissa State Cooperative Bank at Cuttack. Out of 147 loan accounts, only 32 loan accounts have been closed and balance 115 loan accounts remained outstanding against different categories of employees working in the Registry of Orissa High Court Five employees are not paying their installment dues, as a result of which their loan accounts have been classified as " None Performing Asset" (NPA).
Out of 147 loan accounts, only 32 loan accounts have been closed and balance 115 loan accounts remained outstanding against different categories of employees working in the Registry of Orissa High Court Five employees are not paying their installment dues, as a result of which their loan accounts have been classified as " None Performing Asset" (NPA). It is further contended that if there will be no undertaking from the DDO and loan will be sanctioned to the employees without any collateral security and if the employees do not repay their loan, the opposite party bank cannot do anything and cannot also write to the DDO or Registry of the Orissa High Court for repayment of the loan dues by the defaulting employees It is further contended that the loan scheme available under Annexure-4 is not only applicable to the Class IV employees working in the High Court of Orissa, but also for Class-III, Class-II employees working in Orissa High Court. Therefore, deleting the clause-6(c) of Loan policy will not only hamper the interest of the bank, but in most cases loan accounts will be held NPA because bank cannot do anything if the employees do not deposit their salary in the bank account regularly. It is further contended that the Managing Committee, which has framed the loan scheme, has not been made a party and as such, the Managing Director has only communicated the decision of the Managing Committee vide Annxure-6 dated 09.02.2018 and as such, Clause-6(c) of the loan scheme framed for the High Court employees separately in Annexure-4 cannot be deleted, and cannot be stated to be arbitrary, unreasonable and contrary to the provisions of law, therefore, seeks for dismissal of the writ application. 5. This Court heard Mr. B.P. Satpathy, learned counsel for the petitioners and Mr. K.P. Nanda, learned counsel for the opposite party bank and perused the record Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
5. This Court heard Mr. B.P. Satpathy, learned counsel for the petitioners and Mr. K.P. Nanda, learned counsel for the opposite party bank and perused the record Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6 As per the factual matrix discussed above, several writ applications have been filed by the petitioners and orders have been passed But ultimately, on an affidavit being filed by the opposite party bank, a separate scheme has been framed for the High Court employees as per Annexure-4 putting Clause-6(c) for furnishing 100% collateral security for availing personal loan Though this Court expressed a view and left the matter open to the Managing Committee with a direction to reconsider the matter, the Same has not been withdrawn, as would be evident from the communication dated 09.02.2019 in Annexure-6. Thus, a question arose why a separate scheme for the employees of High Court of Orissa has been framed by the bank On perusal of the orders passed in different writ petitions, it would be seen that no where any direction was issued by this Court to frame a separate personal loan scheme for the employees of the High Court of Orissa, rather, the bank has framed a personal loan scheme exclusively for salary earners, which has been communicated on 30.11.2009 in Annexure-7 series Clause-5 of the said scheme reads as follows- "5 Terms and Conditions of sanction. (a) The loan shall be sanctioned to permanent employee on the basis of undertaking furnishing by the employee to the employer and employer/DDO to the Bank, (i) To deduct the installments from the monthly salary of the employee and remit the same to the Bank towards repayment of loan till the loan account is liquidated and (ii) In case of retirement/resignation/VRS/CRS/dismissal/death the loan shall be repaid out of the terminal benefits including gratuity and pension benefits etc. (b) Both the borrowers and the guarantors shall be admitted as nominal members of the Bank. (c) In no case, such loan can be sanctioned to the salary earners where there is no scope for deduction of monthly loan installments from the pay bill or disbursement of salary through Bank account maintained in OSCB. (d) Post-dated cheques (PDCs) shall be obtained towards repayment of monthly installments.
(c) In no case, such loan can be sanctioned to the salary earners where there is no scope for deduction of monthly loan installments from the pay bill or disbursement of salary through Bank account maintained in OSCB. (d) Post-dated cheques (PDCs) shall be obtained towards repayment of monthly installments. (e) Personal surety/guarantors of the loan must be permanent employees of the same organization/department having service period left for retirement not less than the repayment period fixed for the loan. Or (a) In case salary account is maintained with the branch by the employees of the above organization, the borrower has to submit irrevocable authorization to: (1) Employer or Drawing & Disbursing Officer to remit the entire salary and other receivables to the account of the borrower in the concerned branch of the bank till 'No dues certificate' is issued by the Bank. (2) Bank to realize the installment dues of the loan by debiting the amount to the Savings Bank Account of the concerned borrower till complete liquidation of the loan amount. (b) The Branch Manager shall be responsible to deduct the installment dues of the concerned borrower from the Savings Account in each month on receipt of the salary and other receivables. (c) The employer shall undertake not to allow shifting the salary account to any other bank without written clearance (No Dues and No Objection) of the concerned Branch of the bank for transfer of the salary account. (d) Post-dated cheques (PDCs) shall be obtained towards repayment of monthly installments. (e) Personal surety/guarantor of the loan must be permanent employees of the same organization/department having service period left for retirement not less than the repayment period fixed for the loan." A bare reading of Clause-5 will go to show that loan shall be sanctioned to permanent employees on the basis of undertaking furnished by the employee to the employer and employer/DDO to the bank, but that has been modified while framing fresh scheme for the employees of High Court Orissa in Annexure-4. As a matter of fact, Clause-5 contained two parts; sub-clauses (a) to (e) up to the word 'or' constitute the first part whereas sub-clauses (a) to (e) appearing after the word 'or 'constitute the second part. Meaning thereby, if first part containing sub-clauses (a) to (e) is not adherable then second part containing sub- clauses (a) to (e) has to be given effect to. 7.
Meaning thereby, if first part containing sub-clauses (a) to (e) is not adherable then second part containing sub- clauses (a) to (e) has to be given effect to. 7. In Shri Jeyaram Education Trust v. A.G. Syed Mohideen, (2010) 2 SCC 513 the apex Court held that the word 'or' is normally disjunctive and 'and' is normally conjunctive. 8. In Hyderabad Asbestos Cement Product v. Union of India, (2010) 1 SCC 426 the apex the apex Court held that the word 'or' in its natural sense denotes an 'alternative' and is not read as 'substitutive'. 9. In Union of India v. Rabinder Singh, (2012) 12 SCC 787 the apex Court held as follows:- "For instance, section 52(f) of the Army Act, 1950, provides that any person subject to the Act, who 'does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person', commits an offence in respect of property. The Supreme Court held that the two parts of section 52(f) are disjunctive, which can be seen from the use of a comma and the word 'or' between the two parts of the clause, and that if the Legislature had intended both the parts to be read together, it would have used the word 'and'. Hence, it was held that it is possible to charge someone under section 52(f) only for acting with 'intent to defraud', and it is not necessary to refer to the second part of the clause viz. causing wrongful gain or wrongful loss, in the charge." 10. By using the word 'or' between sub-clause (a) to (e) and sub-clause (a) to (e) mentioned in clause-5 of the scheme it is made clear that either of the part of the clause-5 may be adhered to for sanction of the loan. If for the first part the bank is not agreeable then the 2nd part of sub-clause (a) to (e) can be given effect to, and as such, there is no valid justifiable reason to frame a separate scheme in Annexure-4 for availing personal loan by the employees working in the Registry of the High Court of Orissa. 11. In course of hearing Mr. K.P. Nanda, learned counsel for the opposite party bank contended that Annexure-7 series, the personal loan scheme for salary earners has been superseded by Annexure-4.
11. In course of hearing Mr. K.P. Nanda, learned counsel for the opposite party bank contended that Annexure-7 series, the personal loan scheme for salary earners has been superseded by Annexure-4. Therefore, this Court called upon him, vide order dated 17.04.2019, to produce the file dealing with supersession of Annexure-7 series. In compliance of such order, he produced the relevant file in Court on 18.06.2019. On perusal of the same, it is found that nothing has been placed on record to indicate the reasons for issuance of Annexure-4, the exclusive personal loan scheme for the employees working in the Registry of High Court of Orissa, nor any reasons have been assigned anywhere with regard to supersession of Annexure-7 series leading to issuance of Annexure-4. But Annexure-4 was issued in view of the affidavit filed by the opposite party bank before this Court on its own volition, and as such, the bank has tried to make a classification of the salary earners of other organization vis-à-vis the High Court employees. Reasons for such classification have not been assigned in the file no. DoCM (NA) for the year 2017-18. But the scheme which has been framed in Annexure-4 has been approved by the Managing Committee in its meeting held on 08.08.2017 in agenda no. 17 which has been placed and filed at flag-D and there is no dispute that Annexure-7 series, the personal loan scheme exclusively for salary earners issued on 30.11.2009, still governs the field. If the opposite party bank is not adhering to first part of clause-5 containing sub-clause (a) to (e) preceding the word 'or' then it is open to the opposite party bank to adhere to the second part of clause-5 containing sub-clause (a) to (e) succeeding the word 'or' because of the fact that by using the word 'or' the first part of clause-5 containing sub-clause (a) to (e) is being disjoined from the second part of clause-5 containing sub-clause (a) to (e). 12. Mr. K.P. Nanda, learned counsel for the opposite party bank contended that in Annexure-7 series the maximum limit of granting personal loan has been fixed to Rs. 5.00 lakhs whereas in Annexure-4 so far as employees of the High Court of Orissa is concerned, it has been enhanced to Rs. 10.00 lakhs.
12. Mr. K.P. Nanda, learned counsel for the opposite party bank contended that in Annexure-7 series the maximum limit of granting personal loan has been fixed to Rs. 5.00 lakhs whereas in Annexure-4 so far as employees of the High Court of Orissa is concerned, it has been enhanced to Rs. 10.00 lakhs. But that by itself cannot be said to have satisfied the test of reasonableness so as to issue a fresh guideline exclusively for the employees of High Court of Orissa, and more so the employees of High Court of Orissa cannot be discriminated or treated separately from other employees to whom Annexure-7 series is applicable. On perusal of the counter affidavit filed by the opposite party bank, it would be seen that nothing has been placed on record to indicate the reasons for issuance of Annexure-4 exclusively for the employees of High Court of Orissa, save and except because of the affidavit filed before this Court. In absence of any direction from this Court if the opposite party bank on its own volition has framed the scheme in Annexure-4 exclusively for the employees of High Court of Orissa, which is in conflict with the guideline already available for similarly situated salary earners in Annexure-7 series, that should not be made applicable to the employees of the High Court of Orissa; as the same is arbitrary, unreasonable, discriminatory and contrary to the provisions of law. 13. On perusal of the prayer portion of the writ application it is found that the petitioner has not prayed for applicability of second part of clause-5, i.e., sub-clause (a) to (e) contained after the word 'or' but then this Court can mould the prayer and grant relief in exercise of extraordinary jurisdiction of this Court. 14. In State of Rajasthan v. Hindustan Sugar Mill, AIR 1988 SC 1621 the apex Court held that the High Court under high prerogative jurisdiction under Article 226 can mould the relief in a just and same manner as it may require by the demands of the situation. 15.
14. In State of Rajasthan v. Hindustan Sugar Mill, AIR 1988 SC 1621 the apex Court held that the High Court under high prerogative jurisdiction under Article 226 can mould the relief in a just and same manner as it may require by the demands of the situation. 15. In view of the facts and circumstances, as well legal position, as discussed above, this Court is of the considered view that second part of Clause-5 of Annexure-7 series containing sub-clauses (a) to (e) after the word 'or' shall be made applicable to the employees of the Orissa High Court and the benefits thereof shall be extended to them in terms of the said clauses bereft of the scheme framed in Annexure-4 for grant of personal loan to such employees. 16. With the above observation and direction, the writ petition is disposed of. No order as to costs. The original file which was produced by learned counsel for the opposite party bank be returned to him forthwith.