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2018 DIGILAW 217 (CAL)

Raj Kumar Dey v. State Bank of India

2018-02-05

ARIJIT BANERJEE, JYORITMAY BHATTACHARYA

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JUDGMENT : ARIJIT BANERJEE, J. 1. The material facts of the case which are not in dispute are briefly as follows. 2. The appellant/writ petitioner joined the respondent Bank in the year 2000. In September, 2014 a lady employee of the Bank lodged an FIR against the appellant alleging commission of an offence under Section 354 of the Indian Penal Code (Outraging the modesty of a woman). A warrant of arrest was issued against the appellant. On 3 June, 2015 the appellant surrendered before the Chief Judicial Magistrate, Howrah, and was taken into custody. On 11 June, 2015 the appellant was granted bail. 3. On or about 18 January, 2016 the appellant approached the Learned Single Judge by filing WP No. 1021(W) of 2016 contending firstly, that although the management contemplated disciplinary action against him, such proceeding had not been completed; secondly, although he had not been placed under suspension he was prevented from joining his duty; and thirdly, that the Bank after crediting his account with salary for the period November, 2014 till January, 2016, had subsequently deducted the said such amount from his account held with the Bank. The prayers in the writ petition were as follows:- "(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." 4. On 2 February, 2016, a Learned Single Judge of this Court passed an order, the operative portion whereof reads as follows:- "Since the bank has said that the petitioner has not been suspended, the petitioner will be allowed to function in his usual post. The petitioner will also be paid the salary and emoluments to which the petitioner is entitled, subject to the bank deducting any amount that may be due from the petitioner to the bank in accordance with law. The petitioner will also be paid the salary and emoluments to which the petitioner is entitled, subject to the bank deducting any amount that may be due from the petitioner to the bank in accordance with law. Since the petitioner has already responded to the notice pertaining to sexual harassment by his reply of April 18, 2015, the bank will conclude the matter by forwarding a reasoned decision to the petitioner before the adjourned date." 5. A further order dated 9 June 2016 was passed by the same Learned Judge, the operative portion whereof reads as follows:- "Since the bank has indicated that the proceedings arising out of the complaint will be concluded as expeditiously as possible, such proceedings should be concluded in accordance with law within a period of eight weeks from date upon affording due opportunity to the petitioner to defend himself. In so far as the attempt in the petition is to make the proceedings arising out of the sexual harassment complaint a part of a pending petition before the court and, thereby, scuttle the same, the same will be disregarded. The petition will now be considered in respect of the petitioner's grievance of the salaries due to him not having been paid by the employer." 6. We are told that the disciplinary proceeding initiated against the appellant culminated in imposition of the penalty of compulsory retirement with superannuation benefits on the appellant. 7. When the matter next appeared before another learned Single Judge it was submitted on behalf of the appellant that the dispute between him and the Bank has narrowed down to the issue of unpaid salary, as recorded by the learned Judge in an order dated 27 September, 2016. 8. Subsequently, the writ petition came up for final disposal before the learned Judge who dismissed the same by a judgment and order dated 5 April 2017 primarily on the ground that seriously disputed and controversial factual issues were involved in the writ petition which could be best resolved before the Civil Forum. Being aggrieved the writ petitioner is before us by way of the present appeal. 9. We have heard Mr. Chakraborty, learned Counsel for the appellant and Mr. Dutt learned Counsel for the Bank. The short question that arises is whether or not the appellant is entitled to receive salary for the period November, 2014 till January, 2016. 10. Being aggrieved the writ petitioner is before us by way of the present appeal. 9. We have heard Mr. Chakraborty, learned Counsel for the appellant and Mr. Dutt learned Counsel for the Bank. The short question that arises is whether or not the appellant is entitled to receive salary for the period November, 2014 till January, 2016. 10. It is pertinent to note that by reason of the learned Single Judge's order dated 2 February, 2016, the Bank permitted the appellant to join his duty. The appellant continued to discharge his duty till he was compulsorily retired. For the said period of service he duly received his salary and there is no grievance of the appellant on that score. 11. It has not been disputed by learned Counsel for the appellant that between 15 October, 2014 and 13 June, 2015 the appellant did not report for work. The reason cited is that he was suffering from ill health. Learned Counsel submitted that after being enlarged on bail on 11 June, 2015 the appellant went to resume his duty at the Howrah branch of the Bank on 13 June, 2015 but was not allowed to do so. Learned Counsel referred to several representations made by the appellant dated 13 June, 2015, 15 June, 2015, 16 June, 2015, 20 June, 2015, 7 July, 2015, 7 August, 2015, 16 September, 2015, 2 November, 2015 and 7 December, 2015. Copies of such representations were annexed to a supplementary affidavit filed by the appellant before the learned Single Judge. It was submitted that in spite of such representations, the appellant was not permitted to join duty. 12. Learned Counsel for the appellant placed strong reliance on a letter dated 10 December, 2015 written by the learned Advocate of the Bank to the learned Advocate of the appellant in reply to the latter's letter dated 16 September, 2015. It was submitted that in spite of such representations, the appellant was not permitted to join duty. 12. Learned Counsel for the appellant placed strong reliance on a letter dated 10 December, 2015 written by the learned Advocate of the Bank to the learned Advocate of the appellant in reply to the latter's letter dated 16 September, 2015. In paragraph 4 of the letter dated 16 September, 2015 written by the appellant's Advocate it was stated as follows:- "That immediately thereafter, getting bail, my client visited his office for joining but the branch manager did not permit him to join taking a plea that since the higher authority did not order him he was unable to permit my client to join, since then my client almost everyday paying regular visit to the branch office and putting his signature on a letter written to the Branch Manager stating therein my client's attendance on the relevant date. But unfortunately even in spite of receiving all letters you have chosen not to give reply to the said letters." Learned Counsel pointed out that in the letter dated 10 December, 2015 written on behalf of the Bank it was stated, inter alia, 'that to prevent every possibility of tampering of documents and inducing the witness of prosecution your client is not allow to join.' This, according to learned Counsel is an admission by the Bank that the appellant was prevented from joining his duty. Hence, it was not the appellant's fault that he could not render his service and therefore he cannot be deprived of salary for the period of his absence from work. 13. Learned Counsel further submitted that the learned Single Judge by his order dated 2 February, 2016 held that the petitioner shall be paid his salary and emoluments subject to the bank deducting any amount that may be due from him to the bank in accordance with law. According to the appellant, a sum of Rs. 3,14,569/- is payable by the Bank to him on account of arrear salary for the period November, 2014 till January, 2016 after deducting all instalments payable by him on account of loan taken by him from the Bank. 14. Mr. Dutt, learned Counsel for the Bank submitted that from 15 October, 2014 the appellant was absent from work without permission from the Competent Authority. 14. Mr. Dutt, learned Counsel for the Bank submitted that from 15 October, 2014 the appellant was absent from work without permission from the Competent Authority. After being released on bail on 11 June, 2015 he went to the Howrah branch of the Bank on 13 June, 2015 and submitted the bail order along with a joining letter. The conditions imposed for granting bail to the appellant required him to report to the Police Station on every Tuesday and Saturday for one month and thereafter once a week for next two months or till submission of charge-sheet which ever was earlier. Although the appellant went to the branch on 13 June, 2015, he immediately left the branch for reporting to the Police Station and thereafter did not go back to the branch. Thereafter on 16 June, 2015 (Tuesday), 20 June, 2015 (Saturday), 23 June, 2015 (Tuesday), 7 July, 2015 (Tuesday) and also on 3/4 subsequent days the appellant visited the said branch with a joining letter but left the branch immediately to report to the Police Station. After reporting to the Police, he never went back to the branch. Learned Counsel submitted that the appellant was never prevented by anybody from joining his duty on any of those days. 15. As regards the admission made in the letter dated 10 December, 2015 written by the Bank's Lawyer, learned Counsel submitted that such statement was made by the Learned Advocate without any such instruction from the Bank. The letter has to be read as a whole. The statements made in paragraphs 4 to 8 of the appellant's Advocate's letter have been denied and disputed in the reply letter. The Learned Advocate exceeded his authority in making statement to the effect that the appellant could not be allowed to join and the said learned Advocate has not been entrusted with any further work thereafter by the Bank. 16. As regards the observation of the learned Single Judge in the order dated 2 February, 2016, Mr. Dutt submitted that the direction was for payment of the salary and emoluments to the appellant/writ petitioner to which he 'is entitled'. There was no blanket or unconditional direction for payment of salary for the entire period of the appellant's absence from work. As regards the observation of the learned Single Judge in the order dated 2 February, 2016, Mr. Dutt submitted that the direction was for payment of the salary and emoluments to the appellant/writ petitioner to which he 'is entitled'. There was no blanket or unconditional direction for payment of salary for the entire period of the appellant's absence from work. Hence, although as per the rules of the Bank, the appellant's salary for the period November, 2014 till January, 2016 was credited to his account held with the Bank, a 'hold' was put on such account and subsequently such credit entries have been reversed on the principle of 'no work no pay'. 17. Mr. Dutt finally submitted that the learned Single Judge in the order under appeal rightly held 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'. Court's View:- 18. We have considered the rival contentions of the parties. 19. The sole ground on which the Bank has withheld the salary of the appellant for the period November, 2014 till January, 2016 is that the appellant did not render any service during the said period. According to the Bank only on a few days the appellant reported at the office but left immediately ostensibly to report to the Police. On the contrary, the appellant's contention is that on 13 June, 2015 and on various dates thereafter he went to join his office but was prevented from doing so. Both the parties have put their respective cases on affidavits. It is one party's statement on oath against the other party's statement on oath. In our view, such factual dispute cannot be resolved in an application under Article 226 of the Constitution of India. 20. It is true that in exceptional cases factual disputes may be adjudicated by the Writ Court on the basis of affidavit and counter affidavit. It is not that the Writ Court does not have jurisdiction to entertain disputed questions of fact. In Gunwant Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC 769 , the Apex Court has dilated on the circumstances in which disputed questions of fact can be gone into in a writ application. It is not that the Writ Court does not have jurisdiction to entertain disputed questions of fact. In Gunwant Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC 769 , the Apex Court has dilated on the circumstances in which disputed questions of fact can be gone into in a writ application. However, it has been time and again emphasised by the Apex Court that where seriously disputed questions or rival claims of the parties are involved, the same are to be investigated and determined on the basis of evidence which may be led by the parties in an appropriately instituted civil suit rather than by a Court exercising the prerogative of issuing writs. In this connection one may refer to the decisions of the Apex Court in the cases of State of Bihar v. Jain Plastics and Chemicals Limited, (2002) 1 SCC 216 and State of Kerala v. M. K. Jose, (2015) 9 SCC 433 . 21. In The Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, JT 1995 (8) SC 331, the Apex Court held that that where the adjudication involved disputed questions of fact which require investigation, proceedings under Article 226 can hardly be an appropriate remedy. In State of M.P. v. M.V. Vyavsaya & Co., (1997) 1 SCC 156 , the Apex Court observed that where there are disputed questions of fact the High Court does not normally go into or adjudicate upon the same in the exercise of jurisdiction under Article 226 of the Constitution of India. In Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745 , the Apex Court held that writ proceedings are summary in nature and a proper decision in a case involving disputed questions of fact cannot always be reached in the course of such proceeding. In ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553 , the Apex Court referred to its earlier decision in Gunwant Kaur (supra) and observed that a writ petition involving serious disputed questions of fact which require consideration of evidence which is not on record, will not normally be entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution, but there is no absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. In Sanjay Sitaram Khemka v. State of Maharashtra, (2006) 5 SCC 255 , the High Court, having regard to the allegations and counter-allegations made by the parties was of the opinion that a writ petition was not the remedy in view of the nature of the controversy and the disputed questions of fact. The Apex Court affirmed the High Court's order observing that a matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. 22. In the present case the nature of dispute is such as is incapable of being resolved on a writ application. Both parties have pledged their oaths in support of their respective cases. It is impossible for us exercising the jurisdiction of judicial review to decide who is speaking the truth and who is running a false case. In our view, a detailed trial involving examination of witnesses in an appropriately constituted civil action is required for coming to a finding as to whose version is correct. Whether or not the appellant was prevented from joining duty by the management of the Bank is a question of fact that the Writ Court is not equipped to decide. Just because the Writ Court is not devoid of jurisdiction to entertain disputed questions of fact, there is no reason or justification for undertaking such exercise where the factual dispute can be resolved only upon conducting a trial. In our view, in cases where such seriously disputed facts are involved, it will be a sound exercise of discretion to refrain from attempting to resolve such dispute in a writ application and to relegate the aggrieved party to a civil suit. This is what the learned Single Judge has done and we find no infirmity in his approach and decision. 23. The fulcrum of the appellant's case is the letter dated 10 December, 2015 written by the Bank's Advocate to the appellant's Advocate. We have adverted to the single sentence in the said letter which has been relied upon by learned Counsel for the appellant. In our view, the said sentence i.e., 'that to prevent every possibility of tampering of documents and inducing the witness of prosecution your client is not allow to join' cannot be read in isolation. We have adverted to the single sentence in the said letter which has been relied upon by learned Counsel for the appellant. In our view, the said sentence i.e., 'that to prevent every possibility of tampering of documents and inducing the witness of prosecution your client is not allow to join' cannot be read in isolation. The statements in paragraphs 4 to 8 of the appellant's Advocate's letter dated 16 September, 2015 have been denied in the Bank's Advocate's letter dated 10 December, 2015. It is true that there is no specific denial and there is only a general denial. However, the strict rules of pleadings applicable to Court proceedings can hardly be applied to letters exchanged between two parties. Further, the possibility that indeed the Bank's Advocate wrote that sentence without instruction to that effect as has been strenuously contended by the Bank, cannot be ruled out at this stage. The positive case of the Bank in its affidavit is also that nobody in the Bank prevented the appellant from joining work. The truth will come out only upon a detailed investigation involving examination and cross-examination of witnesses in a duly conducted trial in a civil suit. 24. It is not that the appellant is remediless. We are only affirming the learned Single Judge's view that the Writ Court is not the proper forum for redressal of the appellant's grievance given the nature of factual controversies involved in the matter. 25. Accordingly, this appeal fails and is dismissed. In the event, the appellant files an appropriate proceeding before an appropriate forum, the same shall be decided in accordance with law without being influenced by any observation made in this judgment and order. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. Jyotirmay Bhattacharya, ACJ. - I agree.