B.J.DIVAN - (1.) -The petitioner herein is the Dabhoi Municipality functioning under the provisions of the Gujarat Municipalities Act 1963 The first respondent is the District Registrar of Co-operative Societies Baroda and the second respondent is the Co-operative Credit Society of the employees of the petitioner Municipality. The petitioner employs a large number of municipal servants and pays salaries or wages to those servants. It is legally liable to pay the prescribed salaries or wages to its servants. Some of the employees of the petitioner are members of the second respondent Co-operative Society (hereinafter referred to as the Society). The Society advances loans to its members and the members agree to pay back the loans thus advanced to them by monthly installments. At the time when the loan is advanced the member to whom the loan is advanced agrees that if he fails to pay the installment which falls due at the relevant time the amount of the loan or the installment may be recovered from his salary or wages. This agreement is entirely between the employee and the Society and the Municipality is not a party to such agreement. It is the case of the Municipality that the Society sent requisitions to the Municipality to deduct certain amounts from the wages of its employees alleging that those sums were due from the employees who were the members of the Society. The requisitions purported to have been issued under the provisions of sec. 50 of the Gujarat Co-operative Societies Act 1961 (hereinafter referred to as the Act). Such requisitions used to be received by the Municipality every month. Acting under the belief that every employer was bound to make deductions from the wages of his employees merely on a requisition from a Co-operative Society the petitioner Municipality had made such deductions from the wages of its employees for the period from August to December 1965. Thereafter 92 employees of the petitioner Municipality from whose wages deductions had been made on the requisition of the Society filed an application before the authority under the Payment of Wages Act 1936 for recovering the amount of Rs. 4467. 44 P. being the amount deducted by the Municipality and handed over to the Society. In those proceedings the Payment of Wages Authority heard the arguments of the Municipality and the contention of the Municipality then was that under sec. 50 of the Act the Municipality was bound to deduct to amounts specified by the Society to be due from its members. The said Authority rejected this contention of the petitioner Municipality and relying on a decision of this High Court in Majoor Sahkari Bank Ltd. Ahmedabad v. Jasmat Gopal VI G.L.R. 539 the Payment of Wages Authority directed that the amount which had been deducted by the petitioner Municipality had been wrongly deducted and directed the petitioner Municipality to pay Rs. 4476-44 P. to the employees who had filed the application. After this decision of the Payment of Wages Authority the Municipality was advised that this decision was sound in law and that the Municipality had neither the power nor the duty to make deductions from the legal wages of its employees only on the strength of a letter from the Society alleging that certain sums were due from the employees and requisitioning that such sums should be deducted from the wages of the employees and such sums should be made over to the Society. After the decision of the Payment of Wages Authority and after duly considering the legal position the petitioner Municipality decided not to make any deductions from the wages of its employees in respect of the requisitions made by the Co-operative Society and hence no deductions were made from the wages of the employees for the months of July August and September 1966 In subsequent months also the Municipality did not make such deductions on a mere requisition by the Society. Thereafter on October 14 1966 the Society preferred an application to the District Registrar of Co-operative Societies the first respondent herein. This application purporting to be under sec. 50 of the Act requested the Registrar to issue a certificate under sec. 50(3) of the Act. A notice was issued by the first respondent to the Municipality calling upon the Municipality to show cause why a certificate for the recovery of the said amount from the Municipality personally should not be issued under sec. 50(3) of the Act. Thereafter the petitioner Municipality put forward its representation pointing out the facts stated above and also the decision of this High Court and on December 15 1966 the first respondent passed an order holding that the petitioner Municipality was bound to make deductions on the requisitions of the Co-operative Society and that a certificate should be issued for the recovery of Rs. 10 51 from the petitioner Municipality under the provisions of sec. 50 of the Act. Apprehending that after the issue a such a certificate this amount would be recovered as arrears of land revenue from the Municipality the petitioner has filed this Special Civil Application challenging the order of the Registrar passed on December 15 1966 copy of which has been annexed as Annexure B to the petition.
(2.) Though the vires of sec. 50 of the Act have been challenged in the petition at the hearing of the petition the main arguments which have been advanced are in connection with the decision of this High Court in Majoor Sahkari Banks case (supra). Mr. Daru on behalf of the petitioner has contended that though the decision in the above case was in connection with the provisions of sec. 24A and sec. 54 of the Bombay Co-operative Societies Act of 1925 and though the Act before us now is the Gujarat Co-operative Societies Act 1961 in fact the provisions of sec. 24A of the Bombay Act and sec. 50(1) of the Gujarat Act are practically identical and further that the provisions of sec. 54 of the Bombay Act and sec. 96 of the Gujarat Act are substantially the same for all practical purposes and hence the decision in Majoor Sahkari Banks case (supra) is still good law and would be applicable to the facts of the case.
(3.) In Majoor Sahkari Banks case (supra) at page 542 sec. 24A of the Bombay Act has been cited and sub-sec. (1) of that section was in these terms:- A member of a 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 to the society. Sec. 50(1) of the Gujarat Act is in these terms:- A member of a 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 to the society the amount so deducted in satisfaction of any debtor other demand of the society against the member. As Mr. Nanavati appearing on behalf of the second respondent Society urged before us it is clear that the words owing by the member to the Society occurring in sec. 24A(1) of the Bombay Act are replaced by the words:- of the Society against the member in sec. 50(1). Barring this change there is no other difference between the provisions of sec. 24A(1) of the Bombay Act and sec. 50(1) of the Gujarat Act. The difference in terminology between sec. 24A(1) of the Bombay Act and sec. 50(1) of the Gujarat Act is not material. The use of the word debt occurring in sec. 50(1) of the Gujarat Act clearly indicates that there must be a debt owed by a member to the Society. Unless some amount is owed there cannot be said to be a debt due by a member to the Society or a debt of the Society against a member. Therefore as we have indicated above the change in terminology makes no difference and the provisions of sec. 50(1) of the Gujarat Act are for all purposes the same as the provisions of sec. 24A(1) of the Bombay Act.;