ASSAM STATE CO-OPERATIVE HOUSING FEDERATION LTD. HOUSEFED v. THE STATE OF ASSAM AND 3 ORS

Advocate for the Petitioner : MR.N P UPADHAYA Advocate for the Respondent : SC, ELEMENTARY EDUCATION BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

28.01.2022 ORDER Heard Mr. D. Chakraborty, learned counsel appearing on behalf of the petitioner. Mr. N.J. Khataniar, learned counsel appears on behalf of the Respondent Nos.1, 2 and 3. None appears on behalf of the Respondent No.4 in spite of service of notice.

#2. This writ petition has been filed challenging the inaction of the respondent authorities in not complying with the provisions of Section 48 of the Assam Co-operative Societies Act, 1949 (for short ‘the Act of 1949’). The facts for the purpose of the disposal of the instant writ petition are that the Respondent No.4 while serving as an Assistant Teacher in Machkhowa Magidia L.P. School, Guwahati had jointly availed the Housing Loan of Rs.2,50,000/- along with her husband in the year 1999 from the petitioner. As per the letter of sanction the Respondent No.4 along with her husband were supposed to repay the loan in 10 (ten) years with EMI @ Rs.4585.41 commencing from

01.02.2003 and liquidation date was stipulated on 31.01.2013. Prior to Page No.# 3/7 availing the loan the Respondent No.4 had furnished before the petitioner an Agreement with the Pay Disbursing Officer dated

17.06.1999 under the standard format viz. HF Form-V as per the provisions of Section 48 of the Act of 1949, whereby the Respondent No.4 had authorized the then Disbursing Officer i.e. the Headmistress of the concerned school or any other DDO under whom the Respondent No.4 might serve in future to recover from and out of the monthly salary of the Respondent No.4 and remit such sum to the petitioner in repayment of the monthly instalment on loan and interest which might become payable by the Respondent No.4 to the petitioner. The said Agreement was countersigned by the Headmistress of Machkhowa Magidia L.P. School who was the DDO of the Respondent No.4 at the relevant point of time. The Agreement was also countersigned by the Respondent No.3 who at the time of filing of the writ petition was the DDO of the Respondent No.4. It has also been pleaded in the writ petition that the Headmistress of the school wherein the Respondent No.4 was working also issued a Certificate of Pay Disbursing Officer/Employer dated 17.06.1999 under the standard format, viz. HF Form-VI under Section 48 of the Act of 1949, whereby the then DDO had agreed to recover all monthly instalments due to the petitioner and remit the same to the petitioner as provided under Section 48 of the Act of 1949 and the Government Notification No.Coop-351/89/203 A dated

25.10.1994. At this stage it may be relevant to take note of the contents of Section 48 of the Act of 1949 as the same has relevance for the adjudication of the instant dispute. “48. Deduction of dues from salary members - If a member of a Page No.# 4/7 registered society, who is an employee of the Government or any local authority, takes a loan from a society and contracts to repay it by instalments, and authorises the society to recover such instalments by deduction from his salary, the person who disburses any amount payable to such member as salary or remuneration in respect of such employment shall, on demand from the society, deduct the amount of such instalment from the amount disbursed to such member as salary and shall forthwith remit to the society the amount so deducted.”

#3. A perusal of the said Section 48 would go to show that if a member of a registered society who is an employee of the Government or any local authority takes a loan from the society and contracts to repay it by instalment and authorises the society to recover such instalment by deduction from his salary, the person who disburses any amount payable to such member as salary or remuneration in respect of such employment shall on demand from the society, deduct the amount of such instalment from the amount disbursed to such member as salary and shall forthwith remit it to the society the amount so deducted.

#4. In the backdrop of the said provision the further facts of the instant case may be looked into. The Respondent No.4, as contended by the petitioner made payments intermittently towards the liquidation of the said loan and as per the statement of payment enclosed as Annexure-J to the writ petition, it appears that the last of such payment was made on 18.07.2013 and an amount of Rs.5,58,500/- was paid by the Respondent No.4 till that date. It is also apparent from the enclosures to the instant writ petition that on 20.06.2015 the petitioner had issued a Notice to the Respondent No.4 stating inter alia that pursuant to 18.07.2013 there was no payment of instalment in spite of Page No.# 5/7 repeated request and thereby requested the Respondent No.4 to repay the entire overdue amount of Rs.6,95,748.72 within 30 days from the date of receipt of the said letter. It was also mentioned that the Housefed loan was obtained under the State Government’s guarantee and the Government has also initiated all legal actions for recovery of loan. Pursuant to the said letter, the Respondent No.3 had also issued a communication to the Respondent No.4 on 22.06.2015, whereby directed the Respondent No.4 to submit a Loan Clearance Certificate from the Assam State Co-operative Housing Federation Limited i.e. the petitioner urgently to the Respondent No.3 at an early date. Pursuant to the communication dated 22.06.2015, the Respondent No.4 issued a communication to the Respondent No.3 on 25.06.2015 requesting the Respondent No.3 not to deduct in pursuance of the communication dated 21.05.2015 issued by the petitioner on the ground that the petitioner is not aware as regards the actual liabilities and the said notice dated 21.05.2015 was issued to cause undue harassment to the Respondent No.4. It could also be seen from the records that thereupon the Respondent No.4 had filed a suit before the Court of the Civil Judge No.2, Kamrup (M) at Guwahati which was registered and numbered as Title Suit No.269/2015. It further appears that there was some ex parte injunction order but the said ex parte injunction order was vacated vide an order dated 25.05.2016, whereby the injunction application i.e. Misc. (J) Case No.280/2015 was rejected. The petitioner thereupon again requested the Respondent No.3 to make deduction in terms with the Agreement as well as the Certificate enclosed as Annexure-A & B to the writ petition by a communication dated 24.06.2016. However, the respondent authorities have not complied with the Agreement with the Disbursing Officer dated 17.06.1999 as well as also the Certificate of the same date issued by the Pay Disbursing Officer for which the petitioner has approached this Court under Article 226 of the Constitution of India. Page No.# 6/7

#5. Mr. D. Chakraborty, learned counsel appearing on behalf of the petitioner submits that by virtue of Section 48 of the Act of 1949, the respondent authorities more particularly the Respondent No.3 is bound to act in terms with the Agreement as well as the Certificate in as much as, on the basis of the said Agreement as well as the Certificate the petitioner had granted the loan to the Respondent No.4. He further submits that in view of the pendency of the instant proceedings and as per the records available with the petitioner the Respondent No.4 is supposed to retire w.e.f. 01.03.2022 and as such the respondent authorities are not only bound under Section 48 but are also bound under Section 46(2)(d) to recover the amount to which the Respondent No.4 would be entitled to upon her retirement and pay the same to the petitioner.

#6. Mr. N.J. Khataniar, learned counsel appearing on behalf of the Respondent Nos.1, 2 and 3 submits that in view of the pendency of Title Suit No.269/2015 and the issue as regards the liability of the Respondent No.4 vis-a-vis the petitioner being in dispute, steps in terms with Section 48 of the Act of 1949 have not resorted to by the respondent authorities.

#7. I have heard the learned counsel for the parties and also perused the records. Page No.# 7/7

#8. A perusal of Section 48 read with the Agreement dated 17.06.1999 as well as the Certificate dated 17.06.1999 imposes a statutory obligation upon the respondent authorities to deduct the amount of such instalment from the amount disbursed when a demand is made from the Society as in the instant case by the petitioner Society. The pendency of the suit has no relevance for the purpose of not acting in consonance to the provisions of Section 48 of the Act of 1949. In that view of the matter, the instant writ petition stands disposed of with a direction to the Drawing & Disbursing Officer to recover such instalments by deduction from the salary of the Respondent No.4 and remit the same to the petitioner Society, the amount so deducted strictly in accordance with the provisions under Section 48 of the Act of 1949. Taking into consideration that the Respondent No.4 is to retire from her service w.e.f. 01.03.2022 the respondent authorities may also resort to action under Section 46 of the Act of 1949 in order to recover the dues of the petitioner Society. It is however observed that any amount so recovered and paid to the Respondent No.4 shall be subject to the outcome of the Title Suit No.269/2015 pending before the Trial Court.

#9. With the above observations, the instant petition stands disposed of. No cost. Comparing Assistant JUDGE