Raj Kumar De vs State Bank Of Hyderabad & Ors on 5 April, 2017

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05/04/2017
PA
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side

W.P. 1021(W) of 2016

Raj Kumar De
-Vs-
State Bank of Hyderabad Ors.

Mr. Pankaj Agarwal
Mr. J.D. Roy
…..For the Petitioner

Mr. Subrata Kumar Dutt
Ms. Riya Banerjee
…..For the Respondentss

While invited to pass final orders in the above noted writ

petition this Court finds that the writ petition rambles away

in its content and scope. The pleadings placed on behalf of

the petitioner purport to touch several aspects of his service

with the respondents/State of Hyderabad (for short only the

Bank or SBH), oscillating from one to the other. As a

consequence several seriously disputed facts are presented

for the consideration of the Writ Court and, the reliefs

ranging from alleged unauthorized salary deductions to

protection extended to whistle blowers are thrown into one

basket.

From a conjoint reading of the pleadings and

submissions advanced on behalf of the writ petitioner the

following emerge:-

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First, the writ petitioner availed of a house building loan

from the Bank which was erroneously declared as a Non-

Performing Asset and, such error has been subsequently

rectified by the Bank. The petitioner alleges that the Bank

failed to offer an explanation connected to the raise in his

Equal Monthly Installments (EMIs) connected to the loan.

Second, the petitioner approached the Consumer District

Forum in connection with a dispute with his Developer

related to the construction and allotment of an apartment

purchased by him. An appeal from the adjudication of the

Forum is presently pending before the State Consumer

Disputes Redressal Commission.

Third, due to non-cooperation of the Bank and, the

litigation surrounding the purchase of the flat, the Title

Deeds of the flat could not be deposited by the petitioner with

the Bank for creating an equitable mortgage.

Fourth, beginning August, 2012 the Bank commenced

deducting from the salary account of the petitioner, thereby

compelling him to approach this Hon’ble Court by way of WP

10609(W) of 2013.

Fifth, on or about March, 2013 the Bank revived the

Disciplinary Proceeding (for short DP) which, according to the

petitioner, relates to a stale charge. The Memos of the Bank

connected to the DP were replied to by the writ petitioner

and, for a passage of time travelled back and forth between

the parties.

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Sixth, the DP, which was postponed in May, 2013, was

revived in March, 2014 and, by an ex parte order of the

Disciplinary Authority (DA), the petitioner was held guilty of

the charges. The DP was also the subject matter of heated

correspondence between the petitioner and Bank.

Seventh, the petitioner claims to have taken steps to

expose the alleged misuse of powers by the higher authorities

of the Bank. Particularly, in July, 2014 the petitioner

complained against one Ms. Joyeeta Sarkar, Assistant

Manager of the Howrah Branch of the Bank. The petitioner

alleges that as a counterblast to his complaint against her in

July, 2014, the said Joyeeta Sarkar lodged a complaint of

sexual harassment against the petitioner with the Bank and

also lodged a FIR under Section 354 / IPC with the police.

Eighth, in view of the police complaint the petitioner had

to apply for anticipatory bail, both before the Ld. Sessions

Court at Howrah and, this Hon’ble Court, without success.

Therefore, in June, 2015 the petitioner surrendered before

the Ld. Chief Judicial Magistrate, Howrah and, was in

custody till 11th June, 2015, when he was granted bail with

conditions.

Ninth, the Bank conducted an investigation into the

complaint of sexual harassment through is Internal

Complaints Committee (for short ICC) which concluded the

issue against the petitioner.

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The above recorded narrative shall be amply evident

from the roving prayers in the writ petition which are as

follows:-

“Under this circumstances your petitioner prayed for an
order that :

(a) Writ of mandamus directing the respondent authorities
to allow the petitioner to resume his duties during the
pendency of the disciplinary proceedings.

(b) Writ of mandamus directing the respondent authorities
to credit Rs. 8.00 Lacs to the account of the petitioner.

(c) Writ of mandamus directing the respondent authorities
to provide the petitioner with all the evidence.

(d) Order directing the competent authority under the
Whistle Blower Protection Act, 2011 to initiate
proceedings for the protection of the petitioner.

(e) Writ of mandamus directing the respondent authorities
to conclude the disciplinary proceedings with regard to
the charges sexual harassment against the petitioner.

(f) Ad interim orders in terms of prayers (a) and (b) herein
above.

(g) Any other order and/or orders as your lordships may
deem fit, proper and necessary in furtherance of
justice, equity and good conscience.

And for this act of kindness your petitioners as in duty
bound shall ever pray.”

The writ petition has been padded up by the petitioner

with several Supplementary Affidavits which repeat, in

different narrative formats, the nine issues elucidated above.

The writ petition is further accompanied by an

Application for Addition of Party by the said Ms. Joyeeta

Sarkar, the complainant in the sexual harassment case. The

Application for Addition of Party has been opposed by use of

a standard counter affidavit on behalf of the petitioner.
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Amongst the several pleadings on record, specific

mention can be made of a Supplementary Affidavit directed

to be filed by the respondents/Bank through the order of this

Court dated 6th of September, 2016. By further order of this

Court dated 27th of September, 2016 this Court recorded,

inter alia, that the Supplementary Affidavit filed on behalf of

the respondents/Bank has disclosed the reasons for

deductions in his salary account. However, for the ends of

further adjudication this Court permitted the

respondents/Bank to present a transparent chart showing in

tabular form the deductions made from the salary account of

the petitioner.

The order of this Court dated 27th September, 2016

(supra) was complied with by the respondents/Bank and, the

matter has been thereafter finally heard.

At the hearing Learned Counsel for petitioner submitted

that the petitioner did not wish to press any relief connected

to the sexual harassment charge since, the petitioner has

now opted to file a regular appeal before the Appellate

Authority. Ld. Counsel for the petitioner has narrowed the

relief to the allegedly illegal deductions made from the salary

account of the writ petitioner.

Arguing on behalf of the respondents/Bank, Mr.

Subrata Kumar Dutt, Ld. Counsel with Mrs. Riya Banerjee,

Ld. Advocate submits that the Bank has demonstrated

cogent reasons for effecting salary deductions from the
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account of the petitioner. Mr. Dutt has referred to several

factual aspects connected to the conduct of the petitioner

qua the Bank as disclosed through its counter affidavits.

Mr. Dutt makes the point that the petitioner did not

deposit the Title Deeds of the flat which was purchased from

the Developer with the help of a housing loan. In spite of

several requests made by the Bank the petitioner did not

furnish the original Title Deeds to the Bank for creating an

equitable mortgage. On the contrary, the petitioner created a

dispute with regard to the quantum of the EMIs payable to

the respondents/Bank.

Next, Mr. Dutt points out that the petitioner applied for

anticipatory bail in connection with the police complaint of

sexual harassment. Such prayer for anticipatory bail being

refused by two Courts, the petitioner spent time in custody.

He was enlarged on bail with a condition to report to the

Investigating Officer. Mr. Dutt submits that on the pretext of

reporting to the Investigating Officer, the petitioner

repeatedly failed to attend duties with the Bank. Mr. Dutt

points out that there is recorded evidence that the petitioner

only arrived to report for joining, leaving soon thereafter on

the ground of meeting the Investigating Officer. Therefore,

Mr. Dutt submits, that in view of the depletion in the leave

account as well as other service heads of the petitioner, the

Bank had to make the necessary adjustments from his salary

account.

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The further point is argued by Mr. Dutt that the ICC of

the Bank came to the finding that the petitioner is guilty of

sexual harassment. Therefore, even departmental action was

initiated against the petitioner.

Having heard the parties and considering the materials

placed, this Court first notices that the grievance of the

petitioner connected to the charge of sexual harassment

stands not pressed, on the strength of wiser subsequent legal

advice. Therefore, this Court expresses no opinion on the

merits of the departmental investigation into the sexual

harassment charge. However, this Court does observe, that

upon the failure of the Ld. Counsel for the petitioner to point

out to any jurisdictional flaw in the powers assumed by the

respondents/Bank to investigate the sexual harassment

charge, this Court, acting in exercise of jurisdiction under

Article 226 of the Constitution of India, is neither the

alternate nor the efficacious remedy.

Next, this Court notices that there is a police complaint

against the petitioner which has proceeded in terms of due

process. It is trite law that the avenue for redressal of a

grievance connected to a criminal proceeding does not

normal lie in the realm of a Writ Court. The petitioner

therefore is free to pursue his remedy, as advised, before the

appropriate Court/Forum without imputing any observation

on merits by this Court.

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Finally, this Court is required to comment on the

dispute connected to salary deductions. This Court finds

that such dispute connects to seriously contentious factual

issues raised by both parties. Such factual issues, which

have been put on record in details through affidavits filed by

both parties, can only be answered, in the opinion of this

Court, by adducing evidence, even oral, before a Court of civil

law jurisdiction.

The legal basis for the above noted view of this Court

can be culled from the principles laid down In Re: State of

Kerala Ors. Vs. M. K. Jose reported in 2015 (9) SCC 433

at Paragraphs 14 and 16.

“14. In State of Bihar v. Jain Plastics and Chemicals Ltd.,
a two-Judge Bench reiterating the exercise of power
under Article 226 of the Constitution in respect of
enforcement of contractual obligations has stated:- “It is
to be reiterated that writ petition under Article 226 is not
the proper proceedings for adjudicating such disputes.
Under the law, it was open to the respondent to approach
the court of competent jurisdiction for appropriate relief
for breach of contract. It is settled law that when an
alternative and equally efficacious remedy is open to the
litigant, he should be required to pursue that remedy and
not invoke the writ jurisdiction of the High Court. Equally,
the existence of alternative remedy does not affect the
jurisdiction of the court to issue writ, but ordinarily that
would be a good ground in refusing to exercise the
discretion under Article 226.” In the said case, it has
been further observed:-

“It is true that many matters could be decided after
referring to the contentions raised in the affidavits and
counter-affidavits, but that would hardly be a ground for
exercise of extraordinary jurisdiction under Article 226 of
the Constitution in case of alleged breach of contract.

Whether the alleged non-supply of road permits by the
appellants would justify breach of contract by the
respondent would depend upon facts and evidence and
is not required to be decided or dealt with in a writ
petition. Such seriously disputed questions or rival claims
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of the parties with regard to breach of contract are to be
investigated and determined on the basis of evidence
which may be led by the parties in a properly instituted
civil suit rather than by a court exercising prerogative of
issuing writs.”

16. Having referred to the aforesaid decisions, it is
obligatory on our part to refer to two other authorities of
this Court where it has been opined that under what
circumstances a disputed question of fact can be gone
into. In Gunwant Kaur v. Municipal Committee, Bhatinda,
it has been held thus:-

“14. The High Court observed that they will not determine
disputed question of fact in a writ petition. But what facts
were in dispute and what were admitted could only be
determined after an affidavit-in-reply was filed by the
State. The High Court, however, proceeded to dismiss the
petition in limine. The High Court is not deprived of its
jurisdiction to entertain a petition under Article
226
merely because in considering the petitioner’s right to
relief questions of fact may fall to be determined. In a
petition under Article 226 the High Court has jurisdiction
to try issues both of fact and law. Exercise of the
jurisdiction is, it is true, discretionary, but the discretion
must be exercised on sound judicial principles. When the
petition raises questions of fact of a complex nature,
which may for their determination require oral evidence to
be taken, and on that account the High Court is of the
view that the dispute may not appropriately be tried in a
writ petition, the High Court may decline to try a petition.
Rejection of a petition in limine will normally be justified,
where the High Court is of the view that the petition is
frivolous or because of the nature of the claim made
dispute sought to be agitated, or that the petition against
the party against whom relief is claimed is not
maintainable or that the dispute raised thereby is such
that it would be inappropriate to try it in the writ
jurisdiction, or for analogous reasons.

15. From the averments made in the petition filed by the
appellants it is clear that in proof of a large number of
allegations the appellants relied upon documentary
evidence and the only matter in respect of which conflict
of facts may possibly arise related to the due publication
of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, the High Court
was not justified in dismissing the petition on the ground
that it will not determine disputed question of fact. The
High Court has jurisdiction to determine questions of fact,
even if they are in dispute and the present, in our
judgment, is a case in which in the interests of both the
parties the High Court should have entertained the
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petition and called for an affidavit-in- reply from the
respondents, and should have proceeded to try the
petition instead of relegating the appellants to a separate
suit.” [Emphasis added]

Furthermore, In Re: State of Bihar Ors. Vs. Jain

Plastics and Chemicals Ltd. reported in 2002 (1) SCC

216, it was held at Paragraph 7 as follows:-

“7. In our view, it is apparent that the order passed by
the High Court is, on the face of it, illegal and erroneous.
It is true that many matters could be decided after
referring to the contentions raised in the affidavits and
counter-affidavits, but that would hardly be a ground for
exercise of extraordinary jurisdiction under Article 226 of
the Constitution in case of alleged breach of contract.
Whether the alleged non-supply of road permits by the
appellants would justify breach of contract by the
respondent would depend upon facts and evidence and
is not required to be decided or dealt with in a writ
petition. Such seriously disputed questions or rival
claims of the parties with regard to breach of contract are
to be investigated and determined on the basis of
evidence which may be led by the parties is a properly
instituted civil suit rather than by a court exercising
prerogative of issuing writs.”

Notwithstanding the reference to a seriously disputed

factual matrix arising out of an alleged breach of contract as

discussed in the above noted decisions of the Hon’ble Apex

Court, this Court is of the clear view that the multitude of

controversial factual issues which have surfaced in this writ

petition, can be also best resolved by applying the civil law

remedy.

In the backdrop of the above discussion WP 1021(W) of

2016 stands dismissed.

There will be, however, no order as to costs.
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Urgent Xerox certified photocopies of this judgment, if

applied for, be given to the parties upon compliance of all

requisite formalities.

(Subrata Talukdar, J.)

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