Calcutta High Court (Appellete Side)
Sulekha Chatterjee & Anr vs Union Of India & Ors on 1 August, 2023
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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Shekhar B. Saraf
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SULEKHA CHATTERJEE & ANR.
VERSUS
UNION OF INDIA & ORS.
For the Petitioners: Mr. Sanjoy Mukherjee, Adv.
Mr. Jayabrata Mukherjee, Adv.
For the Respondents: Mrs. Indrani Chokraborty, Adv.
Ms. Sarda Jha, Adv.
Last Heard On: July 25, 2023
Judgement On: August 01, 2023
Shekhar B. Saraf, J.:
1. The instant writ petition has been filed by the petitioners, Sulekha
Chatterjee (hereinafter referred to as the "Petitioner No. 1") and
Smt. Payel Chaterjee (hereinafter referred to as the 'Petitioner No.
2') praying for writ of and/or a writ in the nature of Mandamus
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and a writ of certiorari upon the respondents with prayers for a
writ of and/or a writ in the nature of Mandamus commanding the
respondents to settle the claim of INR 6,99,500/- (Six lakhs ninety
nine thousand and five hundred only) along with interest at the
rate of 18% per annum from the date of deposit till the settlement
of such claim or within such time as may be fixed by this Court.
Facts
2. I have laid down the factual matrix of the instant case below:
a. Petitioner No. 1 is the wife of Shaheed Ashok Kumar
Chatterjee, who was an Overseer in Border Road Organization
and was attached to 69, Road Construction Company.
Shaheed Ashok Kumar Chatterjee was engaged in the
"Construction of 'Basoli Bani' highway in the State of Jammu
& Kashmir".
b. On September 2, 2003, Shaheed Ashok Kumar Chatterjee,
along with three other colleagues while proceeding to the work
site was severely injured as a result of an IED Blast, which
was a terrorist attack. Sri Chatterjee was initially evacuated
to the District Hospital, Kathua with severe injuries on the left
arm, left eye, shoulder and head. Subsequently, he was then
evacuated to the Government Medical College, Jammu and
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then to his home town at Asansol, West Bengal.
Unfortunately, Shri Chatterjee succumbed to his injuries on
October 2, 2003 at the Daffodil Medical Centre, Asansol at a
young age of 43 years.
c. Subsequently, in the form of Compensation, Death Benefit,
etc., the petitioners received certain amount of money from
various Departments and the State and Central Government
totalling up to INR 13,64,405/- (Thirteen lakhs sixty four
thousand four hundred five only). The petitioners decided to
invest some of the amount received to the tune of INR
7,00,000/- (Seven lakhs only) in the local Burnpur Post Office
in MIS Scheme as well as in Fixed Deposit.
d. Accordingly, the petitioners handed over INR 7,00,000/-
(Seven lakhs only) to one Mr. Soumen Routh, an Authorised
Postal Agent under Burnpur Market Sub-Post office, for
investing in M.I.S. and Term Deposit (T.D). The above amount
included a Cheque of INR 4,99,500/- (Four lakhs ninety nine
thousand five hundred only) which was paid by the petitioner
vide Cheque No. 789463 for making an MIS Account in
Burnpur Market Sub- Post Office and the said cheque was
drawn in the name of Sri Soumen Routh and handed over to
him.
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e. The petitioners were then handed over a MIS Passbook
depicting an Account No. being 14201 dated September 13,
2010 by Sri Soumen Routh, and the said pass book reflected
a MIS investment amount of INR 4,99,500/- (Four lakhs
ninety nine thousand five hundred only) and the petitioners
started to draw monthly interest from the Post Office from
October 20, 2010 onwards @ INR 3,330/- (Three thousand
three hundred thirty only) per month for every month until
June 2012. Sometime around June 2012, petitioners state
that the said passbook was taken by Sri Routh on the pretext
of computerizing the Account in the said Post Office and was
never returned back. The said passbook was recovered
subsequently from the police authorities.
f. From July 2012, the Post office refused to give the MIS
payment and when the petitioners confronted the concerned
authorities at the post office, they were told that the accounts
were not genuine and hence no further payments can be
made. The petitioners gave a letter dated September 5, 2012
to the local post office seeking refund of INR 4,99,500/- (Four
lakhs ninety nine thousand five hundred only) and this
communication was allegedly never responded to by the post
office.
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g. The petitioners then enquired about the balance of INR
2,00,000/- (Two lakhs only) which was given for Fixed
deposit. They allegedly learnt that the pass book which was
issued to them bearing Account No. 31822451 was not
genuine. The petitioners subsequently came to know that
another Savings Bank Account in their name being No.
388694 was opened at Burnpur Sub-Post Office and
transactions have been made in that Account, but the
petitioners state they never submitted any application for
opening and withdrawal for those transactions at all. On a
perusal of the transactions in the said account, it was
revealed that the postal cheque which was given for making
Fixed Deposit had already been enchased through this
account and the cash had been withdrawn on the same day
as the account was opened with merely INR 100/-.
h. The petitioners allege that they subsequently came to know
that criminal complaints have been lodged against Sri Routh
and that he had been arrested and investigations are
continuing in the matter, but the Post Office refused to take
any responsibility for the same.
i. Furthermore, the petitioners approached the Assistant
Director of Postal Services (S.B), West Bengal Circle and in
response to their complaint they had been assured by letter
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SB 3/L - 770/10/12 dated December 11, 2012 that the
matter is being forwarded to Senior Superintendent of Post
Offices, Asansol Division for necessary action. However, for a
long time, the petitioners state that they did not hear back
from the Senior Superintendent of Post Offices.
j. Being aggrieved by and dissatisfied with the aforesaid
inaction, the petitions have filed the instant writ application
under Article 226 of the Constitution of India before this
Court.
Contentions
3. Mr. Sanjoy Mukherjee, learned counsel for the petitioners made
the following submissions:
a. He argued that serious fraud has been committed involving
the retirement benefit, ex-gratia benefit and death benefit
received on account of the unfortunate demise of the Shaheed
Ashok Kumar Chatterjee and the respondent authorities have
failed to effectively resolve or take any steps for redressal of
the petitioners' grievance.
b. He further submitted that the respondent authorities should
have been vigilant about the fraudulent account being opened
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and operated with the petitioners' money. The failure of
respondent authorities to do the same seriously prejudiced
the interest of the petitioners herein. He further submitted
that proper checking mechanism had not been deployed by
the respondent authorities to prevent the said fraud and
forgery committed by the Standardised Agency System (SAS)
agent of the Post Office.
c. He also submitted that Sri Routh was an agent and
representative of the respondent authorities and it is
incumbent upon the respondent authorities to make good any
loss suffered by the petitioners on account of the misdeeds of
their agent. He then submitted that the petitioners are the
rightful and genuine claimants of the amount kept in deposit
in the Account in the Post Office and the respondent
authorities are liable to settle the claim with interest and
compensation of the petitioners. He also prayed that unless
an appropriate order is passed by this Court, directing the
respondent authorities to settle the claim of amount which
have been withheld in spite of assurances given by them, the
petitioners will suffer irreparable loss and will be highly
prejudiced.
d. He also submitted that no adequate, alternative, and
efficacious remedy other than the writ jurisdiction of this
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Court is available and the prayer made herein, if granted,
would afford complete remedy to the petitioners.
e. He placed on record the judgments of Hon'ble Supreme Court
in Pradeep Kumar and Anr. -v- Postmaster General and
Anr. reported in (2022) 6 SCC 351, and Canara Bank -v-
Canara Sales Corporation and Ors. reported in (1987) 2
SCC 666 in support of his contentions.
f. He further submitted that Sri Routh acted as an authorised
SAS agent of the Respondents attached to the concerned post
office at the relevant point in time. He also submitted that the
cheque had been issued in the name of the agent as it was a
common practice. He also submitted that it was within
knowledge of the then Post Master of concerned Post Office.
He further argued that all the passbooks had been issued by
the Burnpur Market Post Office and were duly signed by the
Post Master under his seal and signature. Furthermore, he
said that, the petitioners collected the passbooks personally
from the post offices.
g. He further submitted that the respondent authorities have
falsely stated that the fraud has been committed by the SAS
agent. In the police investigation, he submits that it has been
revealed that the Post Master of the post office, Sri Tapan
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Mallick, is also involved and the officer had been arrested
also. He further submits that respondent authorities had filed
the FIR against the SAS Agent under Section 409 of the
Indian Penal Code, 1860 for Criminal Breach of Trust by an
Agent.
h. He finally argued that the respondents have admitted that a
massive fraud has been committed and intends to put the
entire blame on the "delinquent" agent, suppressing the fact
that the respondents' own men and employees and officers
are also directly involved and connived in the same fraudulent
practice. He further argued that the entire liability to
compensate the loss and refund of the principal amount lies
with the respondent authorities.
4. Mrs. Indrani Chokraborty, learned counsel for the respondents
made the following submissions:
a. She submitted that the instant writ petition should be
dismissed in limine as the instant writ petition suffers from
suppression of material facts and incorporation of incorrect
and misleading statements.
b. She further argued that while the writ petitioners have alleged
that they opened one MIS account bearing number 14201 for
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INR 4,99,500/- (Four lakhs ninety nine thousand five
hundred only) at Burnpur Market Post Office and one TD
account bearing number 31822451 amounting to INR
2,00,000/- (Two lakhs only) at Burnpur Market Post Office, it
revealed on enquiry that no MIS Passbook bearing account
number 14201 exists in the name of the petitioner and
others. She argued that since the MIS account number 14201
claimed to have been opened by the petitioners is a fake one,
hence the respondents will not accept any liability for a fake
account.
c. She stated that cheque of INR 4,99,500/- (Four lakhs ninety
nine thousand five hundred only) was drawn in favour of Sri
Routh, instead of the Sub Postmaster, Burnpur Market S.O.
and Sri Routh is not the employee of the postal department
and he was appointed by the State government. She further
stated that this proves that the amount was not paid to the
Post Office and Post Office cannot take any responsibility for
the amount paid to others.
d. She further submits that the S.B. account number 388694
was actually opened by the petitioners at Burnpur MDG on
September 16, 2011 with initial deposit of INR 100/- (One
hundred only) and further two transactions were made on the
same day. She also submits that since the petitioners are
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claiming not to have opened the said S.B. account, the
signatures appearing on the documents ought to be examined
by Government Examiner of Question Documents (GEQD).
e. She also submits that a large fraud case was unearthed in
departmental enquiry wherein it was found that the SAS
Agent duped a large number of investors in the name of Post
Office. She also submits that since neither the amount
claimed to have been invested came in the Government
account nor any of the monthly interests have been
accounted for and hence the Department is not in a position
to entertain the petitioners' claim. She also stated that there
is no direct control of the Department of Posts over the
appointment or conduct of an SAS Agent, who is appointed by
the Dy. Director of Small Savings, Government of West
Bengal.
f. She submits that for making investments in post office the
investors are required to issue the cheque for the amount of
investment drawn invariably in favour of the post office and
not in favour of any other person, as is the petitioners' case.
g. She finally submitted that both the MIS as well the TD
accounts claimed to have opened by the petitioners, were
actually not opened at Burnpur Market Sub Post Office. In
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both the cases, she argued that the transactions were
between the petitioners and the agent and the postal
department will not take any responsibility for these accounts
and the respondents have no liability to pay the money in
respect of the fake accounts.
Observations and Analysis
5. I have heard the learned counsel appearing for the parties and
perused the materials on record.
6. What transpired in this entire matters bewilders me. Trust is
the basic foundation on which the relationship between
citizenry and the government stands. When a citizen becomes
part of the nations' defence forces, be it manning it or
building it, it is not only their devotion for the nation that
drives them but also the trust that in case something
untoward happens and they have to make the Supreme
Sacrifice, their loved ones will be taken care of. Likewise, the
courage shown by the family of the ones who build our
defences, is no less than the ones that man it. That courage
needs to be respected and rewarded.
7. Although money can never compensate for the loss of a loved one,
recognising the same and honouring the sacrifice of Shaheed
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Ashok Kumar Chatterjee, various amounts were received by the
petitioners through Central and State Governments, and various
other departments. A portion of the received amount, up to the
tune of INR 7,00,000/- (Seven lakhs only) was invested by the
petitioners in the post office.
8. Post office, in many cases, do not only act as the nation's preferred
carrier of words and emotions, but also serve as the guardian of its
savings. It is the trust that has been built over decades that
citizens place on their local post offices and it is the sacred duty of
the postal department to forever and continuously uphold that
trust. The breach of that trust, is not just limited to only the
person who is affected by that breach, but can also affect the
conscious and trust of the citizenry towards the postal system,
which is the lifeblood of Indian republic, at large.
Coming to the facts of the case, as I see it, there are primarily two
issues that need to be determined in the present case before
arriving at the conclusion -
1. Issue No. 1 - Whether or not the respondent department
can be held liable for the actions of Sri Routh or not ?
2. Issue No. 2 - If answer to issue no. 1 is in affirmative, then
whether or not a Writ of Mandamus can be issued in the
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present case directing the respondents to settle the claim
of the petitioners ?
Issue No. 1
9. It is the case of the Postal Department that Sri Routh was
appointed by the Government of West Bengal, and hence, the
postal department cannot be held liable for the actions of Sri Rout.
Since Sri Rout was an official SAS agent authorised to act to
canvass for deposits in MIS account, the department cannot allege
and hold the petitioners to be at fault for trusting Sri Routh and
depositing their cheque in his name, in order to be further invested
into MIS.
Reliance in this regard can be placed on Ministry of Finance
(DEA) O.M. No. F1(53)/NS/57 dated 31.12.1959 and D.G.'s
Special P.O. Circular No. 66 dated 4.3.1960 and further
amended from time to time. Relevant portion on the scope of a
SAS agent has been reproduced below:
" 2. Scope of the Agency:- The agency at present is
confined to canvass for the sale of Kisan Vikas Patras, National
Savings Certificates (VIII-Issue), deposits in Time Deposits
Accounts, Monthly Income Savings Accounts and Senior
Citizens Savings Scheme Accounts. It may be extended to such
other small savings securities as may be notified by the
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Government of India from time to time as being saleable
through Authorized Agents."
10. At this juncture, this Court makes a reference to the decision of
the High Court of Jammu and Kashmir and Ladakh in United
India Insurance Co. Ltd. -v- Sajjad Hussain and Ors. reported
in MANU/JK/0200/2023 wherein it was held that contracts
which have been entered through an agent maybe enforced in the
same manner as if the contracts had been entered into by the
principal. Relevant paragraphs have been reproduced below:
"18. Section 226 of the Contract Act provides that contracts
entered into through an agent may be enforced in the same
manner and will have the same legal consequences, as if the
contracts had been entered into and the acts done by the
principal in person. In the instant case, admittedly, the
premium was collected by the agent of the appellant/Insurance
company from the attorney holder of the owner, whereafter the
policy of insurance came to be issued. Therefore, it would be
deemed as if the amount of the premium had been collected by
the insurance company, even though the agent may have
instead of depositing the premium with the company, issued a
cheque from his own account which ultimately got dishonored.
19. The Principal is bound by the acts of his agent and as such,
the appellant/Insurance company cannot wriggle out of its
liability by stating that it is the agent who had committed fraud
with the company. Whatever contracts the insurance company
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has entered into with the third parties through the agent are
enforceable against the company as if these contracts have
been entered into by the insurance company itself."
11. Furthermore, the judgment of the Hon'ble Supreme Court in
Canara Bank -v- Canara Sales Corporation and Others
(supra), reliance on which was placed by the petitioners also bears
relevance to the question at hand. The Hon'ble Supreme Court had
held in that case that an account holder's claim against the bank,
where the amount has been fraudulently drawn by a third person,
is valid. Relevant portions of the said judgment have been
extracted below -
"30. A case of acquiescence also cannot be flourished against
the plaintiff. In order to sustain a plea of acquiescence, it is
necessary to prove that the party against whom the said plea
is raised, had remained silent about the matter regarding
which the plea of acquiescence is raised, even after knowing
the truth of the matter. As indicated above, the plaintiff did not,
during the relevant period, when these 42 cheques were
encashed, know anything about the sinister design of the
second defendant. If the bank had proved to the satisfaction of
the court that the plaintiff had with full knowledge
acknowledged the correctness of the accounts for the relevant
period, a case of acquiescence against the plaintiff would be
available to the bank. That is not the case here.
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42. We adopt the reasoning indicated above with great respect.
Unless the bank is able to satisfy the court of either an express
condition in the contract with its customer or an unequivocal
ratification it will not be possible to save the bank from its
liability. The banks do business for their benefit. Customers
also get some benefit. If banks are to insist upon extreme care
by the customers in minutely looking into the pass book and
the statements sent by them, no bank perhaps can do
profitable business. It is common knowledge that the entries in
the pass books and the statements of account sent by the bank
are either not readable, decipherable or legible. There is
always an element of trust between the bank and its customer.
The bank's business depends upon this trust. Whenever a
cheque purporting to be by a customer is presented before a
bank it carries a mandate to the bank to pay. If a cheque is
forged there is no such mandate. The bank can escape liability
only if it can establish knowledge to the customer of the forgery
in the cheques. Inaction for continuously long period cannot by
itself afford a satisfactory ground for the bank to escape the
liability. The plaintiff in this case swung into action
immediately on the discovery of the fraud committed by its
accountant as in the case before the Privy Council.
****
44. This is how this Court understood how a plea of estoppel
based on negligence can be successfully put forward. We have
seen that there is no duty for a customer to inform the bank of
fraud committed on him, of which he was unaware. Nor can
inaction for a reasonably long time in not discovering fraud or
irregularity be made a defence to defeat a customer in an
action for loss. Thus the contentions put forward by the bank
cannot be accepted to defeat the plaintiff. The various
submissions made by the counsel for the bank based on
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constructive notice in the general law and on other branches of
law cannot be extended to relationship between a bank and its
customer."
12. In the instant case, the petitioners kept drawing monthly interest
from the post office starting from October 10, 2010 at the rate of
INR 3330/- (Three thousand three hundred thirty only) per month
for every month until June 2012. There was no reason for the
petitioners' to suspect any wrongdoing when the amount was
being received without fail for over a year and a half. As soon as
the fraud was discovered, the petitioners informed the local post
office and multiple letters were addressed by them in this regard.
As soon as the fraud perpetrated by Sri Routh in tandem with
certain postal officials came to notice of the petitioners, relevant
authorities were intimated in this regard, who failed to act and
take action on the petitioners' claim. Therefore, petitioners claim in
the instant writ petition cannot be rejected on the grounds that
their conduct was negligent in the instant case.
13. The judgment of the Hon'ble Supreme Court in Pradeep Kumar
Agarwal v. Postmaster General (supra), also helps the
petitioners' case wherein the Hon'ble Supreme Court held that acts
of post office/bank employees when done during their course of
employment, are binding on bank/post office at the instance of the
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person who is damnified by the fraud. Relevant portions have been
extracted below -
"57. We begin by noting that M.K. Singh is not a third person
but an officer and an employee of the Post Office. Post Office,
as an abstract entity, functions through its employees.
Employees, as individuals, are capable of being dishonest and
committing acts of fraud or wrongs themselves or in collusion
with others. [ See Punjab National Bank v. Durga Devi, 1977
SCC OnLine Del 93] Such acts of bank/post office employees,
when done during their course of employment, are binding on
the bank/post office at the instance of the person who is
damnified by the fraud and wrongful acts of the officers of the
bank/post office. Such acts of bank/post office employees
being within their course of employment will give a right to the
appellants to legally proceed for injury, as this is their only
remedy against the post office. Thus, the post office, like a
bank, can and is entitled to proceed against the officers for the
loss caused due to the fraud, etc. but this would not absolve
them from their liability if the employee involved was acting in
the course of his employment and duties.
58. This Court in SBI v. Shyama Devi [SBI v. Shyama Devi,
(1978) 3 SCC 399] held that for the employer to be liable, it is
not enough that the employment afforded the servant or agent
an opportunity of committing the crime, but what is relevant is
whether the crime, in the form of fraud, etc. was perpetrated by
the servant/employee during the course of his employment.
Once this is established, the employer would be liable for the
employee's wrongful act, even if they amount to a crime.
Whether the fraud is committed during the course of
employment would be a question of fact that needs to be
determined in the facts and circumstances of the case."
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14. Sri Routh, although not an employee of the post office, was an
agent authorised to act for MIS Schemes and as such, the trust of
the petitioners on Sri Rout was not misplaced. It was the duty of
the post office and the government to constantly maintain strong
vigilance and disciplinary checks to ensure that is agents do not
act in a fraudulent manner. The submissions unravelled a blame
game wherein the post office tried to shrug off its liability by
stating that Sri Rout was appointed by the Government of West
Bengal.
15. As is evident in the instant case from the letter of Department of
Post O/o the Sr. Supdt of Post Offices, Asansol Division, no. -
CPT-C/WP 22608(W) of 2013/Sulekha Chatterjee & Anr/2023-24,
in the subsequent enquiry that took place, actions were initiated
against post officials posted at Burnpur Market SO during the
material period. Moreover, FIR was also lodged by the department
against Sri Routh, authorised SAS agent and Sri Tapan Kr Mallick,
then postmaster at Burnpur Market SO and Sri Kartick Ch
Mondal, then Postal Assistant, Burnpur Market SO. This proves
that Sri Routh's actions were not Sri Routh's alone and certain
officials who were employees of the Burnpur Market SO, who were
direct employees of the postal office, were involved in this
fraudulent practice too. As a result of the involvement of not only
the authorised Agent but also the employees of the Burnpur
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Market SO, liability of the postal department cannot be denied and
petitioners' claim against the department is maintainable.
16. In view of the aforesaid, Issue No. 1 is answered in the affirmative.
17. The contours of the Writ of Mandamus were defined by the
Supreme Court in the case of Praga Tool Corpn. -v- C.A. Imanual
reported in (1969) 1 SCC 585. Relevant portion from the aforesaid
judgment has been reproduced below:
"6. ........... No doubt, Article 226 provides that every High
Court shall have power to issue to any person or
authority orders and writs including writs in the nature
of habeas corpus, mandamus etc. or any of them for the
enforcement of any of the rights conferred by Part III of
the Constitution and for any other purpose. But it is well
understood that a mandamus lies to secure the
performance of a public or statutory duty in the
performance of which the one who applies for it has a
sufficient legal interest. Thus, an application for mandamus
will not lie for an order of reinstatement to an office which is
essentially of a private character nor can such an application
be maintained to secure performance of obligations owed by a
company towards its workmen or to resolve any private
dispute. (See Sohan Lal v. Union of India), [1957 SCR 738].
..................
Therefore, the condition precedent for the issue of
mandamus is that there is in one claiming it a legal
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right to the performance of a legal duty by one against
whom it is sought. An order of mandamus is, in form, a
command directed to a person, corporation or an inferior
tribunal requiring him or them to do a particular thing
therein specified which appertains to his or their office
and is in the nature of a public duty. It is, however, not
necessary that the person or the authority on whom the
statutory duty is imposed need be a public official or an official
body. A mandamus can issue, for instance, to an official of a
society to compel him to carry out the terms of the statute under
or by which the society is constituted or governed and also to
companies or corporations to carry out duties placed on them
by the statutes authorising their undertakings. A mandamus
would also lie against a company constituted by a statute for
the purposes of fulfilling public responsibilities. [Cf. Halsbury's
Laws of England, (3rd ed.), Vol. II, p. 52 and onwards]."
(Emphasis Added)
18. Furthermore, Halsbury's Laws of England (4th Edn., Vol. 1, p. 111,
para 89) delineate the nature and scope of the Writ of Mandamus
as follows:
"The order of mandamus is of a most extensive remedial
nature, and is in form, a command issuing from the High Court
of Justice, directed to any person, corporation, or inferior
tribunal, requiring him or them to do some particular thing
therein specified which appertains to his or their office and is in
the nature of a public duty. Its purpose is to supply defects of
justice; and accordingly it will issue to the end that justice may
be done, in all cases enforcing such right and it may issue in
cases where although there is an alternative legal remedy, yet
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such mode of redress is less convenient, beneficial and
effectual."
19. I, also find it prudent to refer to the Hon'ble Supreme Court's
decision in DN Jeevraj v Chief Secretary, Government of
Karnataka & Ors. reported in (2016) 2 SCC 653. Supreme
Court. In this case again, the Supreme Court defined the purview
of Writ of Mandamus. Relevant portions are extracted below:
"37. .......insofar as the issuance of a writ of mandamus is
concerned, this Court held in Union of India v. S.B.
Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150 : 2004
SCC (L&S) 363] that: (SCC p. 160, para 13)
"13. A writ of mandamus is issued in favour of a person who
establishes a legal right in himself. A writ of mandamus is
issued against a person who has a legal duty to perform but
has failed and/or neglected to do so. Such a legal duty
emanates from either in discharge of a public duty or by
operation of law. The writ of mandamus is of a most extensive
remedial nature. The object of mandamus is to prevent disorder
from a failure of justice and is required to be granted in all
cases where law has established no specific remedy and
whether justice despite demanded has not been granted."
38. A salutary principle or a well-recognised rule that needs to
be kept in mind before issuing a writ of mandamus was stated
in Saraswati Industrial Syndicate Ltd. v. Union of
India [Saraswati Industrial Syndicate Ltd. v. Union of India,
(1974) 2 SCC 630] in the following words: (SCC pp. 641-42,
paras 24-25)
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"24. ... The powers of the High Court under Article 226 are not
strictly confined to the limits to which proceedings for
prerogative writs are subject in English practice. Nevertheless,
the well-recognised rule that no writ or order in the nature of a
mandamus would issue when there is no failure to perform a
mandatory duty applies in this country as well. Even in cases
of alleged breaches of mandatory duties, the salutary general
rule, which is subject to certain exceptions, applied by us, as it
is in England, when a writ of mandamus is asked for, could be
stated as we find it set out in Halsbury's Laws of England (3rd
Edn.), Vol. 11, p. 106:
'198. Demand for performance must precede
application.--As a general rule the order will not be
granted unless the party complained of has known what
it was he was required to do, so that he had the means
of considering whether or not he should comply, and it
must be shown by evidence that there was a distinct
demand of that which the party seeking the mandamus
desires to enforce, and that that demand was met by a
refusal.'
25. In the cases before us there was no such demand or
refusal. Thus, no ground whatsoever is shown here for the
issue of any writ, order, or direction under Article 226 of the
Constitution."
(Emphasis Added)
20. In the instant case, demands for settlement of claim were first
made to postal authorities and having received no relief, the
petitioners approached this Court for issuance of appropriate
orders. It cannot be said that the petitioners have not first tried to
solve the matter with the Postal Department and have directly
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approached this Court for issuance of appropriate writs.
Accordingly, prayer for Writ of Mandamus against the postal
authorities is also maintainable.
21. Lastly, this Court makes reference to the power of the High Court
to issue Writ of Mandamus under Article 226 of the Constitution of
India which was defined by the Supreme Court in the case of
Director of Settlements, A.P. and Others -v- M.R. Apparao and
Anr., reported in (2002) 4 SCC 638. Relevant paragraph has been
extracted below for reference -
"17......... The powers of the High Courts under Article 226
though are discretionary and no limits can be placed upon their
discretion, they must be exercised along the recognised lines
and subject to certain self-imposed limitations. The expression
"for any other purpose" in Article 226, makes the jurisdiction of
the High Courts more extensive but yet the Courts must
exercise the same with certain restraints and within some
parameters. One of the conditions for exercising power under
Article 226 for issuance of a mandamus is that the Court must
come to the conclusion that the aggrieved person has a legal
right, which entitles him to any of the rights and that such right
has been infringed. In other words, existence of a legal right of
a citizen and performance of any corresponding legal duty by
the State or any public authority, could be enforced by issuance
of a writ of mandamus. "Mandamus" means a command. It
differs from the writs of prohibition or certiorari in its demand
for some activity on the part of the body or person to whom it is
addressed. Mandamus is a command issued to direct any
person, corporation, inferior courts or Government, requiring
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him or them to do some particular thing therein specified which
appertains to his or their office and is in the nature of a public
duty. A mandamus is available against any public authority
including administrative and local bodies, and it would lie to
any person who is under a duty imposed by a statute or by the
common law to do a particular act. In order to obtain a writ or
order in the nature of mandamus, the applicant has to satisfy
that he has a legal right to the performance of a legal duty by
the party against whom the mandamus is sought and such
right must be subsisting on the date of the petition (Kalyan
Singh v. State of U.P. [AIR 1962 SC 1183] ). The duty that may
be enjoined by mandamus may be one imposed by the
Constitution, a statute, common law or by rules or orders
having the force of law........"
22. To answer the issue at hand, the condition precedent for issuance
of a Writ of Mandamus is that whether or not, a legal right has
been violated? Based on the material on record, I cannot help but
conclude that whenever a citizen deposits or invests, either directly
or through an authorised SAS agent, she is legally entitled to
receive the benefit of the same. However, for no fault of her own, if
a fraud is committed by the said authorised SAS agent and the
employees of the department are involved in the same, she cannot
be deprived of her rightful claim. If the argument of the
respondents in the instant writ petition was to be accepted, great
prejudice would have been caused to the petitioner and a wrong
precedent would be set by this Court. As has already been
discussed, it was not just Sri Routh who was a part of this nexus
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of fraudulent activities being committed against the petitioners,
but involvement of other postal officials has also been established.
23. In view of the same, Issue No. 2 is also answered in the affirmative.
Summary and Conclusion
24. For ease of reference and for the sake of brevity, I have extracted
the relevant principles emerging from the abovesaid discussion of
the law:
a. A principal cannot elude from its responsibility towards the
acts committed and contracts entered into by its agents. (See:
United India Insurance Co. Ltd. -v- Sajjad Hussain and
Ors., High Court of Jammu and Kashmir and Ladakh,
supra)
b. A person can file a claim against the bank (or as the case
maybe, post office) for recovery of the amount lying in the
bank/post office account if the said amount has been
withdrawn fraudulently by a third person. The said claim
cannot be dismissed by the bank/post office merely on the
ground of negligence. (See: Canara Bank -v- Canara Sales
Corporations and Others, Hon'ble Supreme Court of
India, supra)
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c. Banks and post offices can be held accountable and liable for
the conduct and actions of their agents and employees. (See:
Pradeep Kumar Agarwal -v- Postmaster General, Hon'ble
Supreme Court of India, supra)
d. Writ of Mandamus can be issued to secure the performance of
a public, statutory, or legal duty in favour of anyone who has
an interest in the performance of the said public, statutory, or
legal duty. (See: Praga Tool Corpn. -v- C.A. Imanual,
Hon'ble Supreme Court of India, supra)
e. Writ of Mandamus can be issued against a person who has
failed to perform his legal duties whether such duty is in the
nature of a public duty or emanates by the operation of law.
Furthermore, the scope of Writ of Mandamus is wide enough
and can be used to prevent the disorders emanating from a
failure of justice. (See: Halsbury's Laws of England: 4th
End, Vol. 1 and DN Jeevraj -v- Chief Secretary,
Government of Karnataka & Ors., Hon'ble Supreme Court
of India, supra)
25. Based on the unfortunate events that led to this writ petition, this
Court cannot help but conclude that the submissions made by the
respondents are nothing but an attempt to shrug off their legal
and ethical responsibility to compensate the petitioners for the loss
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suffered by them on account of the fraud perpetrated by Sri Routh,
the authorised SAS agent, acting in nexus with the concerned
officials of the post office.
26. This Court, in the strongest possible terms, condemns the actions
of Sri Routh, and other officials from the post office who were
involved in the entire scheme of fraud in the instant case. This
Court, also expresses its regret at the unnecessary and undue
suffering caused to the petitioners for no fault of their own.
27. Accordingly, this Court holds the respondents liable for the actions
of Sri Routh, and the concerned officials of the Burnpur Post
Office.
Order and Directions
28. In view of the aforesaid discussion, let there be a Writ of
Mandamus issued in terms of prayer (a) against the respondents.
Accordingly, this Court directs the respondent no. 2 being the
Chief Postmaster General to settle the claim of the petitioner to the
tune of INR 6,99,500/- (Six lakhs ninety nine thousand five
hundred only) along with interest at the rate of 9% per annum
applicable from the date of deposit i.e. September 13, 2010 till the
date of actual payment. Such payment is to be made within four
weeks from the date of this order.
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29. Accordingly, this Writ Petition being WPA/22608/2013 is disposed
of. There shall be no order as to the costs.
30. An urgent photostat-certified copy of this order, if applied for,
should be made available to the parties upon compliance with
requisite formalities.
(Shekhar B. Saraf, J.)
