Calcutta High Court (Appellete Side)
Santosh Kumar Mukhia vs State Bank Of India & Others on 16 November, 2017
1
93 16.11.2017. W.P. 21482 (W) of 2017
BD
Santosh Kumar Mukhia
Vs
State Bank of India & Others
Mr. Subrata Roy Karmakar.
... For Petitioner
Ms. Deblina Lahiri.
... For Respondents
The petitioner was an employee of the State Bank of India and was dismissed from his service on January 20, 2013 from the employment of State Bank of India. He alleged that on February 27, 2013 he had filed an appeal before the appropriate authority but the appeal had not been disposed of for a very long period of time and that has compelled him to approach this Court. In this writ petition he primarily prays for an order directing the respondents to dispose of the appeal or to set aside the order of the disciplinary authority and to reinstate him in his earlier employment.
On September 13, 2017 I directed the bank authorities to file a report in the form of an affidavit specifically disclosing whether any such appeal had been filed by the petitioner.
Today when the matter is taken up for hearing, Ms. Lahiri, the learned advocate for the respondents, 2 submits that she is not filing any report, as directed, as she admits the factum of filing of an appeal by the petitioner within the specified period. She submits that it was only after an "extensive search" that the appeal could be found out.
Since the petitioner's appeal has been found out at last, I direct the bank authorities to dispose of appeal within a period of one month positively from the date of communication of the order. However, leaving the matter only with this direction may not do complete justice between the parties. It cannot be glossed over nor denied that a dismissed employee had taken out an appeal more than four and half years before and the appeal was misplaced by the bank authorities otherwise there would not have been any occasion for them to submit that after an "extensive search" the appeal has been traced out.
Obviously the petitioner is not to blame for this situation. In the process he has lost very precious years of his life, all the time expecting for disposal of the appeal. When the Regulation entitles a person to file an appeal and when such an appeal is filed it is the duty of the respondents to dispose of the same within the period and in the manner as prescribed in the relevant Regulation.
It is not only the fact that the appeal was pending for such an inordinately long period the then Deputy General Manager of the Bank by a communication, dated September 3, 2016 had 3 informed the petitioner that no such appeal had been filed by him. Even the subsequent representations made by the petitioner fell on deaf ears. This must be reckoned to be a very serious lapse on the part of the respondents-bank authorities in properly addressing the issue with which a very basic right of the petitioner relating to livelihood was involved. And also, in the process his cardinal right to have the appeal disposed of according to law and the Regulations has been taken away by the inaction and negligence on the part of the respondents. I direct the Deputy General Manager (B&O) of the concerned bank, Zonal Office, Bidhannagar, the respondent no. 4, to conduct an enquiry and to find out the person responsible for this so that no appellant may have to face such a situation in future. The Court expects that the respondent no. 4 shall take all necessary and corrective measures in passing the necessary order.
Such a direction, however, is of no consolation of the petitioner.
Undoubtedly, it is a case of complete misuse of statutory responsibility cast on the respondent bank authorities causing enormous loss of time and consequently pecuniary loss to the petitioner. The bank acting as a State within the meaning of the Article 12 of the Constitution of India could ill afford to act in such careless manner as to misplace an appeal filed by the petitioner, let alone in not disposing of it in accordance with the time frame fixed for it. When the bank decided not to file the report but to admit the filing of the appeal by the petitioner in Court in due time it had obviously exercised its 4 discretion of not giving the details and admitting its fault on oath. However, there is nothing distracting that there was failure to exercise the responsibility and to discharge the duty enjoined by the relevant Regulations and they constitute negligent acts amounting to misuse of power which can be accepted as res ipsa loquitur.
Compensating a party suffering either on account of inaction of an authority or an overt act on his part which he should not have done is a very well- accepted principle of law. It is permissible even in a writ proceeding. In umpteen number of cases the Supreme Court and various High Courts have awarded compensation to petitioners by way of relief in question as they suffered in the hands of different officials.
In the case of Peoples' Union for Democratic Rights Vs. State of Bihar, reported in AIR 1987 SC 355, the Supreme Court had declared that the Court can grant compensation to the suffering caused to the petitioner. In the case of N. Nagendra Rao & Co. Vs. State of A.P., reported in AIR 1994 SC 2663, the Supreme Court had occasion to lay down the law that a negligent officer is personally liable for compensation and the State is vicariously liable. It was observed that "no civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy". The permissibility of awarding compensation in a writ proceeding was considered in the case of Nilabati Behera Vs. State of Orissa, reported in AIR 1993 SC 1960, where the Supreme Court had held that the primary source of the public law proceedings stems from the prerogative writs and the courts has, 5 therefore, to evolve 'new tools' to give relief in public law by moulding it according to the situation with a view to preserve and protect the rule of law. Again in the case of D. K. Basu Vs. State of West Bengal, reported in AIR 1997 Sc 610, the Supreme Court laid down the proposition that compensation can be awarded under the public law by the High Court and the Supreme Court in addition to private law remedy for tortious action and punishment to wrong-doers under criminal law.
Thus the power to award compensation to persons who suffer at the hands of the officers of the government or a State within the meaning of the Article 12 of the Constitution of India has been very widely acknowledged. In the present case the suffering of the petitioner at the hands of and because of the negligence of the respondent bank and its officers is so obvious that it does not call for any independent proof. The right to get an appeal or a proceeding expeditiously disposed of is considered to be a part of a citizen's extended fundamental right. Here not only that has been denied to the petitioner, even the then Deputy General Manager flatly denied that the appellant had at all filed appeal. The authority should have asked for concrete evidence from the petitioner to prove his claim of filing an appeal. That would have been in fitness of things and certainly commensurate with the status of a senior public officer who was also the appellate authority. On the contrary what has been exhibited was pure and simple administrative high handedness.
Ms. Lahiri faintly tried to suggest that the petitioner also did not inquire about the appeal. I don't find the submission to be sufficiently convincing. Under the law it is the responsibility of the appellate authority to dispose of the appeal within 6 a certain period. This cannot be treated to be a case of contributory negligence and the respondent cannot project the lack of an uncalled for exercise by the petitioner as the case for keeping the appeal pending or not disposing of at an early date.
The bank must, howsoever in a small manner, compensate the petitioner for the wrong that they had done to him. It is all the more in tune with the practice the bank follows in cases of delay on the part of others in re-paying the loans taken from the bank. If for any delayed re-payment of the loan the bank asks for interest I find no reason why the bank should not also equally compensate the petitioner not only for their lapses but also the resultant injury the petitioner had suffered for well-nigh five years.
I direct the bank authorities to pay to the petitioner a sum of Rs. 1 lakh (rupees one lakh) by way of compensation within a period of two weeks from the date of communication of the order.
The petitioner is directed to provide the bank authorities with the details of the bank with the Account No. where the amount is to be transmitted by the respondent-bank.
A caveat, before I part with. The Court expects and reposes its pious faith in the good conscience of the Bank that notwithstanding this order the appellate authority shall dispose of the appeal without being influenced by it.
With the directions as above, the writ petition is disposed of.
7Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.
(Dr. Sambuddha Chakrabarti, J.)