Pradeep Kant , Kamal Kishore, JJ. - (1.) HEARD the learned counsel for the petitioner and the learned counsel for the State, Basic Shiksha Adhikari, Sultanpur and the counsel for the District Co -operative Bank. The petitioner, a salary earners society known as Prathamik Vetan Bhogi Sahkari Rin Samiti Ltd., Sultanpur has filed the present writ petition for quashing the order dated 27th November, 2000 passed by the Basic Shiksha Adhikari, Sultanpur, contained in Annexure -11 to the writ petition and also for issuing a writ in the nature of mandamus commanding the Basic Shiksha Adhikari, the Accounts Officer, Sultanpur for deducting the instalments of loan from the teachers who are the members of the Prathmik Vetan Bhogi Sahkari Rin Samiti Limited and had taken loan.
(2.) SECTION 40 of the U.P. Co -operative Societies Act, 1965 reads as under: Section 40(1). Deduction from salary to meet society's claim in certain cases. - -(1) Notwithstanding anything contained in any law for the time being in force, but subject to such conditions, if any, as may from time to time be laid down by the State Government, a member of a co -operative 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. 40(2). Notwithstanding anything in any law for the time being in force, the employer shall, if so required by the Co -operative Society by requisition in writing and so long as such demand or any part of it remains unpaid, make the deduction in accordance with the agreement executed under sub -section (1) and pay the amounts so deducted to the society within fourteen days from the date of the deduction. 40(3). An employer who without sufficient cause fails to make the deduction in terms of sub -section (2), or having made, any such deduction fails to pay the amount so deducted to the society within fourteen days from the date of deduction, shall be liable to the society to the extent of the amount which the employer has failed to deduct or to pay, as the case may be. The above provisions make it obligatory upon the employer to deduct the loan amount or such other amount which is covered by the aforesaid provision while making payment of the salary to the teachers who are the members of the aforesaid Samiti and who had taken loan. Sub -section (3) of Section 40 makes the provision more stringent as it provides that if an employer who without sufficient cause fails to make the deduction in terms of sub -section (2) or having made any such deduction fails to pay the amount so deducted to the society within fourteen days from the date of deduction, shall be liable to the society to the extent of the amount which the employer has failed to deduct or to pay as the case may be.
(3.) IN the instant case it is admitted between the parties that the salary was being disbursed to the primary teachers who are the members of the present society without deducting the instalment of loan which was payable to the society, although an agreement was entered into between the society and the Bank and the then Basic Shiksha Adhikari also had given in writing that the instalment of loan of such teachers who have taken loan from the society shall be deducted and paid to the society while paying their monthly salary to the teachers. However, this agreement was never enforced as no deduction was made by the Basic Shiksha Adhikari concerned but few members have paid their instalments directly. Representations were made to the opposite parties 2 and 3 for deducting the instalment of loan amount while making payment of salary to the teachers but the opposite parties 2 and 3 have refused to make any such deduction. To the contrary the present Basic Shiksha Adhikari has written a letter dated 27th November, 2000 intimating the Registrar, District Co -operative Societies, Sultanpur that on resentment being made by the office bearers of the Prathamic Shiksha Sangh, the consent given for deducting the instalment of loan by the Basic Shiksha Adhikari is hereby withdrawn.;