S.C. Khosla vs State Bank Of India And Ors.
2005 Latest Caselaw 1014 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioner in these proceedings under Article 226 of the Constitution of India has impugned a letter, dated 14.5.2002, by which the respondent (hereinafter called "SBI") decided to charge commercial rent at Rs. 8,000/- from him for the period 1.9.1999 to 15.11.2000 for occupying its premises. Another relief claimed is for refund/release of Rs. 1,27,345/-, being the amount recovered, along with interest.

2. Petitioner was working as Assistant General Manager in the SBI; on 29.10.1994, he was deputed to SBI Home Finance Ltd. During the period of his deputation, the petitioner was allotted residential quarters by the SBI, in his turn for allotment, as an officer of the Bank.

3. The petitioner suffered a severe heart attack in June - July, 1998 which also affected 50% his only functional kidney. It is averred that he was in Coma for four days and had to undergo Bypass surgery as well as a major operation of his kidney. Consequently, he was confined to bed for about four months. He completed his deputation tenure with SBI Home Finance in June, 1995 and he was repatriated to SBI, where he joined at the Vigilance Department, at its local Head Office in New Delhi. It is averred that the office where the petitioner had been deputed as well as the place of posting after repatriation were both in Delhi itself. After repatriation, the petitioner was asked, by SBI, on 20.6.1999 to vacate the official accommodation allotted to him, latest by 31.8.1999 and shift leased to accommodation as per his entitlement. He represented to the Bank for permission to continue residing in the quarters in view of his retirement in 2000. The petitioner also stated that the doctors had cautioned him not to exert physically. The representation was rejected on 21.8.1999 when the SBI stated that he could not retain the flat beyond three months. Another representation was made which too was rejected, on 15.9.1999 when the petitioner was informed that he would be charged Rs. 8,000/- per month for the period of occupation of the flat beyond 1.9.1999 and that the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 would be invoked.

4. The SBI ordered recovery of commercial rent at Rs. 8,000/- per month with effect from 1.9.1999 from the petitioner's salary by an order dated 1.11.1999. He represented stating that since he had no house in Delhi and that his house in Faridabad was incomplete, he ought to be allowed to continue in the Bank's quarter till alternative arrangements were made, or that he could be allotted a smaller flat at East of Kailash to enable him the benefit of easy excess to medical facilities in the event of medical emergencies as he was a patient in Apollo Hospital.

5. The petitioner retired from the SBI's services on attaining the age of superannuation on 30.9.2000; by then the bank had deducted nearly Rs. 50,000/- from his salary on account of standard rent and commercial rent. While disbursing his terminal dues, an amount of Rs. 89,067/- was withheld. The petitioner represented against this action. The bank rejected his pleas and stated that the withholding of amounts was justified. The petitioner claims that the deductions and withholding of amounts which work out to Rs. 1,27,345/- are arbitrary and unjustified.

6. The SBI in its response has taken the position that after the repatriation of an officer employed in its services, at the end of a tenure of deputation, he is required to surrender the premises occupied by him and await his turn for allotment of a quarter again. In this regard reliance has been placed upon Minutes of Meeting dated 12.4.1993 in which the SBI had decided that officers deputed to inspection and other department or transferred to a difficult centre base would have to vacate the premises on their return/repatriation and that they would be provided flats in one category lower than the entitled accommodation, within the bank's residential complex subject to availability of the bank's flat. In later pleadings the bank has also relied upon a Circular dated 19.12.1995 issued to all Branches/Offices in Delhi circle. The relevant portions of that Circular are extracted below:

"2. Central Office have reviewed the position and have decided that the Deputy General Manager of modules/special branches may consider the requests of officers working under their module/branch for granting permission to retain Bank's residential accommodation at the previous place of posting up to a period of two months. Such requests for periods beyond two months to four months, should be referred to the General Manager and beyond four months to six months, to the Chief General Manager for consideration on merits. Retention beyond six months will not be permitted at all.

3. As advised earlier, the following factors will continue to be given due weightage--

(i) Mid-academic transfers should be avoided as far as possible so that officers can shift their families well before the commencement of the academic session to minimise the requests for retention of accommodation.

(ii) While retention of official residential accommodation for 2 months may be permitted in deserving cases to enable the officer to identify a suitable accommodation at the new place of posting and settle down, requests for period beyond 2 months should be critically examined keeping in view the following factors--

(a) Requests for retention of residential accommodation on the grounds of education of children/illness of dependent family member(s), etc. should be considered on merits of each case. Cases where children is/are studying in preparatory classes (primary Section) of up to standard IV, will generally not be considered."

7. The Bank has also relied upon another Circular/Minutes of Meeting dated 4.10.1997, which states that officers on deputation, inter alia, to other subsidiaries of the SBI would have to vacate the premises allotted to them and occupy leased accommodation as per rules. The provision was expressed to be prospective.

8. The further position of the SBI is that the petitioner was on deputation and had to comply with the deputation/other related rules and also is bound by the bank's policy including the one relating to accommodation, and its retention.

9. Mr. Ashok Bhalla, learned Counsel for the petitioner submits that the SBI's action in effecting the deductions from petitioner's salary when he was in employment and also withholding amounts from his terminal benefits was high-handed and arbitrary. He submits that the Minutes of Meeting of 1993 as well as of 4.10.1997 have no application to the facts of this case. Learned Counsel submits that the record of the respondents no where shows that the peculiar and special nature of the petitioner's case namely, of his being allotted the bank's quarter during the period of his deputation and also his suffering major medical complications just before his repatriation, and superannuation were considered, much less in a proper perspective. Learned Counsel submits that the petitioner was allotted the flat by SBI after he had been sent on deputation, in accordance with his seniority position as an officer of the Bank. The reliance placed upon the Circular of 1997, he says is of no consequence since that circular, in terms, was applicable prospectively.

10. Learned Counsel submits that the request made by the petitioner to retain his quarter could not be characterized as frivolous or unmerited, having regard to the serious medical problems faced by him. The request was emine(sic) justified having regard to the circumstance that the petitioner was to retire within a short span of time after repatriation. Hence, the insistence of the bank that he ought to vacate the flat allotted to him, shift to leased accommodation and thereafter, within a period of one year again shift out from such accommodation, was most unreasonable. Learned Counsel also submitted that in his representations the petitioner had highlighted several instances where officers had been allowed to reside in the bank's quarter for considerable period of time, even up to more than a year after their deputation to other departments, came to an end.

11. Mr. Rajiv Kapur, learned Counsel for the SBI submitted that the action of SBI was in accordance with its policies. He relied upon the circular of 1995 and submitted that SBI was bound to follow it, being a norm that had been evolved and made applicable to all cases. Learned Counsel further submitted that the petitioner could not have claimed to continue residing in the flat as a matter of a right, particularly when as per the policy of SBI, he had to await his turn for allotment after repatriation. As far as the complaint with regard to discrimination was concerned, learned Counsel submitted that all these aspects were gone into by the bank and each of the cases highlighted by the petitioner had been adequately explained in a note submitted to the Chief General Manager which was considered at the time of rejection of the petitioner's application. He, therefore, stated that there was no infirmity in the order or action of the bank.

12. The first policy placed on record in these proceedings namely, the Minutes of Meeting dated 12.4.1993, to my mind, does not strictly apply to instances like the present one. It concerns itself with instances where officers are deputed to inspection and other departments or transferred to "difficult centres. Moreover, discretion is given, in the circular, to pass orders on a case to case basis. The requirement of vacating the bank's premises on allotment/ repatriation had to be, therefore, viewed in the context of the discretion or circumstantial flexibility conferred upon the authorities. As far as the second Circular/Minutes of Meeting dated 4.10.1997 is concerned, the same expressly states that it was applicable to prospective cases. Even, as per this policy (Para (g)) the maximum duration for which an officer could occupy a bank's flat in Delhi was stated to be seven years.

13. The third and last circular relied upon in these proceedings is dated 19.12.1995. It generally deals with the issue of retention of bank's residential accommodation. The basic period granted in respect of those who are required to surrender their premises is between 2 and 4 months. Beyond the period of four months every case, has to be examined by the Chief General Manager. As per Para 3(ii)(a) the request for retaining flats beyond two months can be examined on grounds of education as well as illness in the family of the official.

14. The harmonious reading of the above three circulars, leads to the conclusion that an officer or employee repatriated to the bank after deputation has to surrender the premises. The wisdom of such a policy is not in challenge in these proceedings though does it seem strange that a person allotted the bank's official accommodation during the period of deputation, has to surrender that allotment, after his return to the bank's employment. Nevertheless what emerges on a cogent reading of the circular is that such a person is afforded a maximum period of six months. Undoubtedly, the six months period is an outer limit. The question, however, is that whether six months period is to be reckoned from the date of the employees' repatriation or rejoining the duties of the bank or after a reasonable time. I am of the opinion that it would be highly unreasonable to expect an officer or employee to surrender SBI accommodation, and lease or rent accommodation immediately upon his being posted back to the bank. In other words, reasonable breathing time would have to be given. In this case the bank seems to have considered a period of two months to be reasonable. Hence, the question of outer limit of six months to my mind had to be after the expiry of two months.

15. Counsel for the SBI has relied upon a letter/internal note dated 24.1.2002 to show that all aspects were considered when the petitioner's representation against the impugned order was rejected. That note deals with the issue of discrimination and seeks to distinguish the instances where officers had been permitted to stay on in the premises for long stretch of time. Apart from that there is no material on record to show that the petitioner's request on the basis of his medical condition and the circumstance that he was to retire shortly was ever the considered as a factor that had to be examined by the SBI. The SBI was merely harping on its existing policy and its position that a deviation from the policy could not be made.

16. The averments in the counter affidavit and the further pleadings of the respondent-SBI no where dispute the gravity of the petitioner's medical condition. In the light of these, I am of the view that the respondents did not apply their mind to the relevant factors and blindly took the position that the petitioner could not have stayed in flat beyond two months after the repatriation.

17. I am, therefore, of the view that the action of the respondents cannot be supported.

18. In view of the above finding, the Court under Article 226 of the Constitution of India would have relegated the issue for reconsideration to the respondent-SBI. However, having regard to the peculiar facts of the case, the circumstance that the petitioner underwent considerable trauma on account of his medical condition and suffered substantial deductions from his terminal benefits, I think it is appropriate that a quietus ought to be given to the entire controversy in these proceedings itself. As held earlier, every employee would be entitled to the reasonable breathing period. If that period were to be taken into consideration the petitioner was entitled to continue to reside in the flat allotted to him by the bank till the end of August, 1999 (which incidentally also is the time granted by SBI itself). After completing the outer limit of six months the petitioner could be said to overstayed, if at all after 1.4.2000. Hence, the deduction made, till 1.4.2000 cannot be justified. The respondent - SBI can insist upon payment of commercial rent for the period 1.4.2000 to 15.11.2000 [where the petitioner vacated the flat]. As far as the amount of Rs. 89,067/- is concerned, there is no averment as to what is the rationale for such deduction/ with holding from the terminal dues of the petitioner. An amount of about Rs. 50,000/- had already been deducted for the period September, 1999 to September, 2000. The petitioner vacated the premises on 15.11.2000. Hence, the retention or deduction of a sum of Rs. 89,067/- is in my opinion without any justification.

19. I am, therefore, of the view that the petition requires to be partly allowed. A direction is issued to the respondent - SBI to recalculate the commercial rent due from the petitioner along with standard rent @ Rs. 8,000/- and Rs. 249.50 per month respectively for the period 1.4.2000 to 15.11.2000. The bank shall be entitled to these amounts. The balance amounts being a difference between the amount so calculated and the sum of Rs. 1,27,345/- (i.e. the amounts deducted from salary and amounts witheld from terminal dues) shall be paid to the petitioner with interest at 7% per annum from the date of filing of this petition within a period of six weeks from today, in the event of non-compliance with these directions, the respondents shall pay interest at 10% per annum after the period of six weeks till the actual date of payment.

20. The writ petition is allowed in the above terms. The respondents are directed to pay Rs. 5,000/- as costs to the petitioner.