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High Court Of Calcutta
J. K. Mathur
CHANDRA SEKHAR BANERJEE - Appellant
Versus
UNION OF INDIA - Respondent
C. O. 11130 (W) Of 1994
Decided On : 04/05/1995
MANDAMUS - HOUSE BUILDING LOAN - RECOVERY - ARTICLE 14 - PAYMENT OF WAGES ACT, 1936 - SECTION 7 - PUBLIC DUTY - ENFORCEMENT OF PRIVATE RIGHT - WRIT OF MANDAMUS - ARBITRARY AND UNREASONABLE RECOVERY - UNJUSTIFIED DEDUCTION OF SALARY - COURT'S INTERVENTION.
Fact of the Case:
Petitioner, an employee of Indian Oil Corporation, was sanctioned a house building loan. He did not raise any construction and the loan amount became repayable. The respondents started deducting larger amounts from his salary, leaving him with only Rs. 5/- in one month. The petitioner challenged this arbitrary deduction.
Finding of the Court:
The court held that the petitioner's challenge to the arbitrary deduction of his salary was maintainable as it was a violation of Article 14 of the Constitution. The court found that the act of the respondents in making such deductions without any statutory or contractual right to do so was unreasonable and liable to be struck down.
Issues: 1. Whether the petition was maintainable, as it sought to enforce a private right and not a public duty. 2. Whether the arbitrary deduction of the petitioner's salary was violative of Article 14 of the Constitution.
Ratio Decidendi: 1. The court held that the mandamus could be issued against the respondents as the dispute, though arising out of a contract, also fell within the domain of public law obligations. The State, while exercising its powers and discharging its functions, acts for public good and in public interest. 2. The court held that the act of the respondents in making such deductions without any statutory or contractual right to do so was unreasonable and liable to be struck down. The court considered the provisions of Section 7 of the Payment of Wages Act, 1936, which protects the salaries of wage earners, and held that the non-payment of salary is likely to threaten the very existence of the person getting a salary and his dependents.
Final Decision: The court directed the respondents not to make deductions from the petitioner's salary as may exceed 50% of his gross wages, in respect of the loan taken by him. It will however be without prejudice to other terms of the agreement.
( 1 ) THIS is a petition under Article 226 of the Constitution seeking a mandamus to command the respondents not to deduct any amount from the salary of the petitioner excepting the instalments agreed.
( 2 ) THE petitioner is an employee in the Indian Oil Corporation and was working as a technician in the Maintenance Department in Haldia Oil Refinery. He asked for and was sanctioned house building loan. It is not disputed that he did not raise any construction. There was an agreement in writing under the terms of which in case of non-utilisation of loan the entire amount was recoverable while in case of utilisation only instalments amounting to Rs. 2113/- per month were to be deducted from the petitioner's salary. The opposite parly however, started deducting larger amounts so that in the month of September, he was paid a salary of Rs. 5/- only. Aggrieved by this, he has come to the Court.
( 3 ) INTERIM Order was passed by this Court by which only Rs. 2113/- were permitted to be deducted from the salary in respect of the house building advance.
( 4 ) THE respondent moved an application for vacating this interim order. With the consent of the parties that application was treated as affidavit-in opposition and the matter heard finally. It was also stated by the Ld. Counsel for the respondents that the facts not specifically disputed in the application for vacating stay order were all denied.
( 5 ) ON behalf of the respondents a preliminary objection was taken that this petition was not maintainable. As pointed out above it is not disputed between the parties that the loan was sanctioned to the petitioner and an agreement was executed. Copy of the agreement has been filed with the affidavit-inreply as Annexure-A. The relevant clauses are terms C and h (iii ). The former stipulates that the amount would be recoverable in monthly instalments of Rs. 2113/- and would be deducted from the salary. Clause-h (iii), stipulates that in the event of non-utilisation the entire amount shall become repayable immediately and if not paid, and the loans would be liable to interest at 1% above the Corporation Borrowing Rate. The other consequences are also mentioned which are not relevant in this discussion.
( 6 ) IT has been argued that the recovery of the amount is in pursuance of contract between the parties and therefore, it cannot be challenged in writ petition. It was urged that the mandamus cannot be issued to protect a private right and therefore no writ petition would lie in the present case.
( 7 ) TO find the nature of the duty in the present case, it is not disputed that there was an agreement between the parties after the petitioner was given a loan for constructing a house. That agreement provided for payment of the money in specified instalments every month which money was to be deducted from the salary of the petitioner as given above.
( 8 ) IN the event of non-utilisation of the money, the entire amount was to become repayable immediately as mentioned above.
( 9 ) IT may however be pointed out that there is no stipulation about the mode in which the repayable amount was to be recovered in the event of non-utilisation as against manner of the recovery of the specific amount from the salary provided if amount was properly utilised.
( 10 ) IN the present case, the main challenge of the petitioner is the arbitrary manner in which that amount was being recovered by withholding almost the entire salary and paying only five rupees to the petitioner in one month. There is no term in the contract which governs this payment. This act has been challenged as unreasonable and unfair and thus violative of Article 14.
( 11 ) THE Ld. Counsel for the petitioner placed reliance on the decision of this Court in Sri Anupam Ghosh v. Union of India, 1991 (2) Calcutta High Court Notes 451. In this case it was held that mandamus, Prohibition and certiorari are public law remedies and are not available in enforcing private law rig
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