K.C THARAKAN WRIT PETITION IN Hon’b;e Supreme Court U/s Article 32 of Indian Constitution
K.C THARAKAN WRIT PETITION IN Hon’b;e Supreme Court U/s Article 32 of Indian Constitution
Mathews J Nedumpara
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. ______ OF 2022 UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
IN THE MATTER OF:
K.C. THARAKAN …Petitioner(s)
VERSUS
1. STATE BANK OF INDIA Represented by its Chairman, Corporate Office, Vidhan Bhavan Marg, Nariman Point, Mumbai- 400021
2. DEPUTY GENERAL MANAGER, State Bank of India, Zonal Office, Rawri Mansion, Dhankhoti, Shillong- 793 001, Meghalaya
3. THE INDIAN INSTITUTE OF BANKERS, Represented by its Chief Secretary, The Arcade, World Trade Centre, Cuffe Parade, Mumbai- 400 005 Maharashtra.
4. THE UNION OF INDIA, Represented by its Secretary in the Department of Banking & Finance 3rd Floor, Jeevan Deep Building Sansad Marg New Delhi-110001
5. SECRETARY IN THE MINISTRY OF PUBLIC GRIEVANCES & PENSIONS, Janpath Bhawan, B-Wing, 8th Floor, New Delhi – 110 001
6. THE PRESIDENT, All India State Bank of India Staff Federation, …Respondent(s)
MOST RESPECTFULLY SHOWETH:
1. The founding fathers, when they conceived of Article 32 of the Constitution, a provision whereunder a citizen whose fundamental rights are infringed could approach the Supreme Court of India without recourse to any other forum, certainly had in their mind the need for a mechanism to do justice where grave injustice has been caused as in the instant case.
2. This Hon’ble Court expanded the scope of Article 32 which by its text had only meant the investiture of the jurisdiction on this Court to grant writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari by granting declaratory remedies to grant, quash, even Act of Parliament, nay even Constitutional Amendments, by judicial pronouncements. Whether by judicial pronouncements the scope of Article 32 which was merely intended to grant the five writs stated above could be expanded or not, is a larger constitutional issue. The inevitable consequence of expansion of the scope of Article 32 by a long line of judicial pronouncements, particularly, Kesavananda Bharti, is that the rights conferred under Part III of the Constitution, particularly, Articles 14, 20 and 21, are paramount. The necessary concomitant is that the doctrine of res judicata, one of the fundamental principles based on which the justice delivery system is built, when pitted against fundamental rights, fundamental rights shall prevail. The Petitioner begs to state the facts of the case as briefly as possible, in the above background.
3. The Petitioner who was born in 1944, joined the State Bank of India, Dhanbad branch, Jharkhand, in the year 1963, at the age of 19 years after his matriculation in Kerala, as a clerk. As per the norms in force then, a clerk is entitled to promotion as ‘Officer’ after 5 years, subject to satisfactory performance. Qualifying the CAIIB conducted by the Indian Institute of Bankers is reckoned as an added qualification for consideration as promotion to ‘officer’. The Petitioner qualified Part-I of the CAIIB Examination in the year 1967 and with an excellent service record, was promoted as an officer in the year 1968. While matters stood thus, he sat for the CAIIB examination held at Shillong, in the year 1968. The Petitioner found the Superintendent of the Examination have indulged in certain malpractices and he addressed a letter to the Chief Secretary, Indian Institute of Bankers. The supervisor concerned was an employee of SBI. Apparently because of this, the Indian Institute of Bankers forwarded the Petitioner’s complaint to the State Bank of India. The subject matter belongs to the Indian Institute of Bankers, there was no cause of action for initiating disciplinary action against the Petitioner.
4. The Senior authorities of the SBI, for reasons difficult to be fathomed, found the complaint of the Petitioner to be an act of indiscipline. Accordingly, they initiated a departmental enquiry and dismissed him from service, in the year 1969. An appeal was preferred to the Appellate Authority, within the SBI. The Appellate authority rejected the appeal. The Petitioner challenged the dismissal before the Central Government Industrial Tribunal. In 1975, the Petitioner’s appeal was rejected by the tribunal. He challenged the order of the Industrial Tribunal in the High Court of Guwahati. The High Court remanded the matter back to the Industrial Tribunal for fresh consideration. The State Industrial Tribunal, assuming the jurisdiction of the Central Industrial Tribunal, which was not vested in it, rejected the Petitioner’s Appeal in 1990.
5. The Petitioner approached the High Court of Guwahati for the second time in challenge of the order of the Industrial Tribunal of Assam dated 23.01.1990. The High Court allowed Writ Petition in 2000, which meant the Petitioner being entitled to be reinstated in service with consequential benefits, including back wages and promotion. The State Bank of India as well as Indian Institute of Bankers challenged the order of the Single bench by way of two separate Writ Appeals. The High Court admitted the writ appeals with a rider, namely, that the Petitioner be reinstated forthwith. The Petitioner was accordingly reinstated as merely clerk, without any other benefits. Eventually, both the writ appeals were dismissed in the year 2001.
6. The SBI did not extend to the Petitioner back wages and the promotion which it was duty bound to confer in compliance of the order of the High Court. The Petitioner, accordingly, filed a Contempt of Court case against one Shri. R. C. Oli, Deputy General Manager. The High Court issued notice to the Bank, simultaneously directing that the order be complied with within 24 hours. The Bank challenged the said order of the single bench before a division bench. The Division bench admitted the appeal and stayed the order of the single bench.
7. The institution of the contempt of court proceedings was not taken lightly by the Bank. It was treated as an act of recalcitrance. The Bank, in no loss of time, challenged the order of the Division bench upholding the judgment of the single bench directing reinstatement of the Petitioner with back wages and consequential benefits. The Supreme Court by its judgment dated 04.10.2005 has allowed the appeal of the Bank and upheld the dismissal of the Petitioner.
8. Before the judgment of the Supreme Court came, the Petitioner retired from service as a clerk on 31.03.2004. Since the case was pending in the Supreme Court, the Petitioner was not extended any post-retirement benefits.
9. In the Petitioner’s career, spanning over 41 years in the SBI, he has been out of service for more than 32 years. The Petitioner filed a review in 2005 which was rejected without a hearing, in the same year.
10. The Judgement and order of the Supreme Court allowing the SBI’s appeal, where the Bank engaged the most expensive lawyer in the country, amounted to an injustice which can have no parallel in Service jurisprudence. The only crime which the Petitioner committed was to lodge a complaint of a malpractice which he noticed, to the authorities concerned, i.e., The Indian Institute of Bankers. Assuming it to be an act of indiscipline, the severest of punishment that could have been passed was a reprimand. However, the Petitioner was dismissed from service and with his dismissal being upheld by the Supreme Court, he was denied everything that he was rightfully entitled.
11. The Supreme Court’s order, as aforesaid, has meant the entire lifetime of the Petitioner being wasted, all his time being spend on regaining the job which was snatched from him, leading to a situation where, at the age of 78, he is living in penury.
12. The Petitioner, placing great hope in the institution of judiciary, moved a petition under Article 32 and appeared as party-in-person. The Court did not hear the Petitioner at all and dismissed his case in less than a minute. That was the moment when he, the Petitioner is afraid to say, lost all faith in the concept of justice.
13. The Petitioner is advised that inspite of his extremely bitter experience, he should not be entirely hopeless and should still continue to place faith in the Supreme Court.
14. While the SBI could engage the most expensive lawyer in this country, the Petitioner could not afford a lawyer at all. He appeared party-in-person. The Petitioner believes that had he been able to engage a competent lawyer, he would not have lost his case, in which case he would have been given notional promotion and all other benefits post retirement and would have been able to at least have a comfortable living in the evening of his life. Since he could not afford a lawyer, he filed a review petition as a party-in-person. The same was also dismissed without affording him a hearing.
15. The Petitioner was advised that there is a provision for filing a curative petition even after the rejection of the review. He was told that no curative petition can be filed without a Senior Advocate’s Certificate.