K.C THARAKAN WRIT PETITION IN Hon’b;e Supreme Court U/s Article 32 of Indian Constitution

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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.          OF 2022

[UNDER ARTICLE 32 OF THE CONSTITTUTION OF INDIA]

IN THE MATTER OF –

K.C THARAKAN                                    …PETITIONERS

VERSUS

STATE BANK OF INDIA & ORS            …RESPONDENTS

Drafted by Adv Mathews J Nedumpara

PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONERS: MANJU JETLEY SHARMA

RECORD OF PROCEEDINGS

Sl

No.         DATE OF RECORD OF PROCEEDINGS        PAGES

1.                           

2.                           

3.                           

4.                           

5.                           

6.                           

7.                           

8.                           

9.                           

10.                         

11.                         

12.                         

I N D E X

S.No.     PARTICULARS    Page No. of part to which it belongs

                                Part – I  Part – II

(i)            (ii)           (iii)          (iv)

1.            Court fees                          

2.            Listing Proforma               A-A1     

3.            Cover Page of Paper-Book           A2          

4.            Index of Record of proceedings               

5.            Defect List                          

6.            Note Sheet                        

7.            Synopsis and List of Dates            B-D        

8.            Writ Petition along with supporting Affidavit       1-           

9.            ANNEXURE P-1:

Copy of the Order dated 09.04.2018 of the Supreme Court rejecting W.P no. 07 of 2018                

10.          ANNEXURE P-2:

Copy of the W.P no. 07 of 2018                 

11.          Filing Memo                      

12.          Vakalatnama                     

13.          Memo of Appearance                  

PROFORMA FOR FIRST LISTING

SECTION – X

The case pertains to (Please tick/check the correct box)

o             Central Act: (Title): The Constitution of India

o             Article: 32

o             Central Rule: (Title): NA

o             Rule No (s): NA

o             State Act: (Title): NA

o             Section: NA

o             Impugned Final Order/Decree: (Date): NA

o             High Court: (Name): NA

o             Name of Judge: NA

o             Tribunal/Authority: (Name): NA

1.            Nature of matter: CIVIL

2.            (a) Petitioner/Appellant: K.C. THARAKAN

(b)          Email ID: tharakankc111@gmail.com

(c)           Mobile Phone No.: +91 7896293101

3.            (a) Respondent: STATE BANK OF INDIA & ORS

(b)          Email ID: NA

(c)           Mobile Phone No.: NA

4.            (a) Main Category Classification: —

(b)          Sub Classification: —

5.            Not to be Listed Before: NA

6.            (a) Similar Disposed of matter with citation, if any and case details: No similar matter disposed of.

(b)          Similar Pending Matter: No similar matter pending in any court.

7.            Criminal Matters: NO

(a)          Whether accused/convict has surrendered: NA

(b)          FIR No. and Date: NA

(c)           Police Station: NA

(d)          Sentence Awarded: NA

(e)          Period of Sentence undergone including period of detention/ custody undergone: NA

8.            Land Acquisition Matters: NA

(a)          Date of Section 4 Notification: NA

(b)          Date of Section 6 Notification: NA

(c)           Date of Section 1 Notification: NA

9.            Tax Matters: State the tax effect: NA

10.          Special Category (First Petitioner/Appellant Only) N/A

Senior Citizen, SC/ST, Women/Child, Disabled, Legal Aid Case, In custody

11.          Vehicle Number (In case of Motor Accident Claim matters): NA

Date:          August 2022.

Manju Jetley Sharma

AOR Code 350 Advocate for petitioner

                SYNOPSIS AND LIST OF DATES

The Instant is an extraordinary case where our justice delivery system has failed to do justice to an upright citizen who fought for justice literally his entire lifespan in the unstinted faith that our courts will unfailingly do justice.

The Petitioner who joined the service of SBI in 1963 at the age of 19 as a clerk was eventually dismissed from service and denied pension and all other benefits. The “crime” he did was to address a letter pointing out several malpractices which he noticed while appearing for the CAIIB exam in the year 1969.

To cut a long story short, disciplinary proceedings where instituted against him in 1969 for lodging a complaint against certain officers of the Indian Institute of Bankers. The SBI dismissed him in the same year i.e., in 1969, holding his act as whistle blower to be a major act of indiscipline.

He was reinstated to service in 2000 in compliance of the judgment of Gauhati High Court in his favour, but at a lower rank without any benefit. He instituted a contempt of court case against the senior officers of the Bank complaining that the order was not fully complied with. His contempt Petition against senior officers of the Bank meant the SBI in its full might determining to liquidate him.

The judgement of the HC in his favour was taken in appeal before the Supreme Court. The SBI engaged the country’s highest paid lawyers. The Petitioner being in penury was unable to engage a lawyer of any competence and was left with no choice but to appear as party in person. The Supreme Court in a situation as where Goliath is pitted against David, found in favor of Goliath and set aside the above mentioned Gauhati High Court order.

The net result is that the Petitioner who was made to retire as a clerk in the very same Bank he joined in 1963 and was given no pension or any other benefits. The Petitioner then filed a Petition in 2018 seeking a review and appeared as party-in-person. The court dismissed his petition in the open court without him being allowed to speak a word.

The Petitioner, in spite of the extremely bitter and painful experience he had and herein above described, continues to repose faith in the majesty of the law and the institution of the Supreme Court. Hence the instant Writ Petition seeking to be treated as a curative petition, to do justice exdebito justitiae.

LIST OF DATES

Sr. No.  Date      Particulars

1.            10.04.1963           The Petitioner joined State Bank of India as a Clerk- typist at Dhanbad Branch.

2.            06.12.1969           The Petitioner was dismissed from service by the State Bank of India.

3              10.07.2000           The State Bank of India reinstated Petitioner as a Clerk-typist without even giving back his promotional post

4.            31.03.2004           State Bank of India serves the Petitioner a letter retiring him from the bank’s service as a clerk-typist.

5              04.10.2005           The final Judgement in Civil Appeal 665 of 2002 upholding the dismissal of the Petitioner.

6              09.04.2018           Supreme Court dismissed the WP filed by the Petitioner seeking the review of Judgement.

                                Hence this Writ Petition.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.          OF 2022

[UNDER ARTICLE 32 OF THE CONSTITTUTION OF INDIA]

IN THE MATTER OF:

K.C. Tharakan,

S/o Late K.C. Cheriyan,

G.M.C House No.55,

K.K. Bhattacharya Road,

Hathigaon, Guwahati- 781 038

Email: tharakankc111@gmail.com                             …Petitioners

                                                Versus

1.            The 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,

… Respondents                

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. The Petitioner, in extreme penury had no means of engaging a senior counsel. Therefore, he could not file the curative petition. The writ petition which he filed where he appeared in person was dismissed in a matter of seconds.

16.          This Court under Article 32 strikes down Acts of Parliament, even constitutional amendments. In A.R Antulay’s case, this Hon’ble Court held it has all the powers to do justice even if it means reviewing a judgment, even of a 5-judge constitution bench in an independent proceeding, ex debito justitiae. The principles evolved in Antulay’s case squarely applies to the instant case.

17.          Copy of the Order dated 09.04.2018 of the Supreme Court rejecting W.P no. 07 of 2018 is produced as Annexure P-1 (pages __ to ___).

18.          Copy of the W.P no. 07 of 2018 is produced as Annexure P-2 (pages _ to _).

19.          Since the Writ petition contains the entire records, other documents are not separately produced. 

PRAYER

THE PETITIONER, THEREFORE, RESPECTFULLY PRAYS THAT THIS HON’BLE COURT BE GRACIOUSLY PLEASED TO:

a)            To treat the instant writ petition as a curative petition so that the great injustice done to the Petitioner is undone and the Petitioner is notionally reinstated in service with all back wages and consequential benefits;

b)            To declare that the requirement that a curative petition shall lie only upon a certificate of a Senior Counsel is unconstitutional and void, being violative of Articles 14 and 21 of the Constitution;

c)            To declare that the right conferred under Part III of the Constitution is not absolutely barred by the doctrine of res judicata and that a decision of the Supreme Court which has reached finality is amenable to Article 32, at least in cases of extreme injustice as in the instant case;

d)            Without prejudice to relief (a) to (c) above, nay, in the event of the aforesaid prayers being denied, to issue a writ in the nature of mandamus directing the Respondent, SBI, to grant the Petitioner the pension along with interest and other terminal benefits which he undoubtedly is entitled to but has been unjustly denied, even in the face of the judgement of the Supreme Court in Civil Appeal no. ___ of __ being final, binding and conclusive;

e) to pass such further and other reliefs as the nature and circumstances of the case may warrant.

AND FOR THIS ACT OF KINDNESS, THE HUMBLE PETITIONERS AS ARE DUTY BOUND SHALL EVER PRAY

                                                                                                                                                FILED BY:             

                                                                                                Manju Jetley Sharma

                                                                                                                Advocate for petitioners

                                                                                          AOR Code 350        

Drawn by:

                Mathews J Nedumpara

     9820535428

MUMBAI

DRAWN ON:       /08/2021

FILED ON:                            /08/2021

THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.          OF 2022

IN THE MATTER OF –

K.C THARAKAN                                     …PETITIONERS

VERSUS

STATE BANK OF INDIA & ORS           …RESPONDENTS

AFFIDAVIT

                I, K.C. Tharakan, S/o. Late K.C. Cheriyan, aged 78 years, Indian Inhabitant, residing at G.M.C. House No.55, Hathigaon, Guwahati- 781 038, do hereby solemnly affirm and declare as under –

1.            That I am the Petitioner in the accompanying Writ Petition and being so, I am well acquainted with the facts and circumstances of the instant case and thus duly competent to swear this Affidavit.

2.            That the contents of Synopsis and List of Dates contained at Page Nos. to        and the contents of the accompanying WP contained at Page Nos.  _  to   _  and the accompanying IAs have been drafted by my Counsel under my instructions and the averments made therein are true and correct to the best of my knowledge and belief.

3.            That the annexures annexed with the accompanying WP are the true copies of their respective originals.

                                                                                                          DEPONENT

VERIFICATION

Verified at Mumbai on this 12.08.2022, that the contents of the aforesaid Affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

                                                                                DEPONENT

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.          OF 2022

IN THE MATTER OF –

K.C THARAKAN                                     …PETITIONERS

VERSUS

STATE BANK OF INDIA  & ORS           …RESPONDENTS

INDEX

SRL. NO.               PARTICULARS

                COPIES PAGE NO.            COURT

FEE

1.            WRIT PETITION WITH

AFFIDAVIT          1+1                        

2.            ANNEXURE         1+1                        

3.            VAKALATNAMA                                              

                                                TOTAL   RS.

Certified that the copies are correct

Filed on:       .08.2021.                                                                        

                                                                                                                                   filed by                             

Manju Jetley Sharma

Advocate-on-Record

AOR CODE 350

For Petitioners

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.          OF 2022

IN THE MATTER OF –

K.C THARAKAN                                     …PETITIONERS

VERSUS

STATE BANK OF INDIA  & ORS           …RESPONDENTS

                              VAKALATNAMA

I, the Petitioner in the above Petition, do hereby appoint and retain Ms. Manju Jaitley, Advocate-on-Record of the Supreme Court to act and appear for me/us in the above Proceedings/Suit/ Appeal/ Petition/ Reference and or my /our behalf to conduct and prosecute (or defend) the same and all proceedings that may be taken in respect of my application connected with the same of any decree order passed therein, including proceedings in taxation and application for Review, to file and obtain return of documents, and to deposit and receive money on my/ or behalf in the said Suit Appeal/ Petition Reference and in application of Review, and to represent me/us and to take all necessary steps on my /our behalf in the above matter, I/We agree to ratify all acts done by the aforesaid Advocate in pursuance of this authority.

Dated this the                   day of August 2022.    

Petitioner

Accepted, Certified and satisfied

Place: Mumbai

Date:     .08.2021.

MEMO OF APPEARANCE

To,

The Registrar,

Supreme Court of India

New Delhi

Sir,

Please enter my appearance on behalf of the Petitioner(s) /Appellant(s)/ Respondent(s) /Intervener in the matter above mentioned.

Dated this the   day of August, 2021.

Yours Sincerely,

(Manju Jaitley)

Advocate-on-Record for the Petitioner

AoR.Reg.No.350,

Sai Krupa, A-491, Sarita Viharr, New Delhi – 110 076

M: 9212325285, E: manjusatsam@gmail.com.

                                                       MODIFIED CHECK LIST

SI. No.   Particulars           Yes/ No

1.            Writ Petition has been filed in form 32 with certificate?  Yes

2.            The petition is as per the provision of Order XXXVIII Rule 1?        Yes

3.            The paper of Writ Petition have been arranged as per order in Supreme Court Rules 2013?                          Yes

4.            Brief list of dates/ events has been filed?             Yes

5.            Paragraphs and pages of paper books have been numbered consecutively and correctly noted in Index?                Yes

6.            Proper and required numbers of paper-books (1+3)have been?               Yes

7.            The contents of the petition/appeal, applicationsand accompanying documents are clear, legible and typed in double space on one side of the paper.?          Yes

8.            The particulars of the impugned judgement passed by the courts below are Uniformly written in all documents ?      NA

9.            In case of appeal by certificate the appeal is accompanied by judgment and decree appealed from and order granting certificate?        NA

10.          If the petition is time barred, whether application for condonation of delay mentioning the no. of days of delay, with affidavit and court fee been filed?    NA

11.          The Annexures referred to in the petition are true copies of the documents before the Court below and are filed in chronological order as per list of dates.? Yes

12.          The Annexures referred to in the petition are filed and index separately and not marked collectively      Yes

13.          The relevant provisions of the Constitution, Statutes, Ordinances, Rules, Regulations, Bye-laws, Orders etc referred to in the impugned Judgement/order has been filed as appendix to the Writ Petition   Yes

14.          In Writ Petition against the order passed in second appeal, copies of the order by the Trial Court and first appellate court have been filed NA

15.          The complete listing proforma has been filled in, signed and included in paper book        Yes

16.          In a petition (PIL) filed under Clause (d) Rule 12(1) of Order XXXVIII The petitioner has disclosed:

(a) His full name, complete postal address, e-mail address,Phone number, proof regarding personal identification,Occupation and annual income, PAN Number and National Unique Identity card number if any;

(b) The facts constituting the cause of action;

(c) Nature of injury caused or likely to be caused to the public

(d) The nature and extent of personal interest if any of the Petitioners;

(e) Details regarding any civil, criminal or revenue litigation,Involving the petitioner or any other petitioners which has or Could have any legal nexus with the issue involved in the Public interest litigation.              NA

17.          If any identical matter is pending/disposed of by the Honourable Supreme Court, the complete particulars of such matter has been given?      NA

18.          The statement in terms of the order XIX Rule 3(1) of Supreme Court Rules 2013 has been given in the petition?              Yes

19.          Whether a bank draft of Rs. 50,000/ or 50% of the amount whichever is Less has been deposited by the person intending to appeal if required to be Paid as per the order of NCDRC, in term of Section 23 of the Consumer Protection act 1986?       NA

20.          In case of appeal under Armed forces tribunal Act, 2007 the petitioner/appellant Has moved the armed force tribunal for granting certificate for leave to appeal To the Supreme Court?           NA

21.          All the paper books to be filed after curing the defects shall be in Order?              Yes

Date :    .08.2021.

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