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TMI Blog1992 (4) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... ransport Corporation. He was dismissed from service in 1975. Action was taken under the provisions of the Tamil Nadu Civil Service (Classification, Control and Appeal) Rules which were applicable to the employees of the appellant -Transport Corporation which, as already stated, is a public sector undertaking of the State of Tamil Nadu. Questioning the order of dismissal, the third respondent filed a Writ Petition, OP 7486 of 1990 in the Madras High Court. A learned single Judge of that Court set aside the order of dismissal and directed reinstatement and also directed that the third respondent shall be entitled to monetary benefits only from the date of reinstatement and not for the anterior period. Third respondent was to be entitled to service seniority. Against the said judgment, the third respondent preferred WA 1269 of 1990 in the Madras High Court. The said Writ Appeal was disposed of by a Division Bench of that Court on 23 -1 -1991. The question before the Division Bench was whether the third respondent was entitled to back -wages from 4 -4 -1975, the date of dismissal or from the date of reinstatement. When the matter came up before the Division Bench, it was not clear whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w informed that the said time limit has since been extended by the Madras High Court. Thereafter, the third respondent filed an affidavit before the Managing Director of the appellant -Transport Corporation on 28 -1 -1991 as per Ext. P2. The third respondent received monetary benefits amounting to ₹ 1,53,567.16 and has been reinstated. The appellant -Transport Corporation made enquiries as to whether the third respondent was gainfully employed during the period he was out of service. From the enquiry, it appears that it was revealed that the third respondent was employed as a personal driver in Almalki and Company under the Director of Emigration, International Airport at Doha, Qatar from 1978 to 1984. He had gone abroad using his passport No. K442096 issued by the Regional Passport Officer, Madras. According to the appellant, the third respondent was receiving a good salary and had also made remittances to the State Bank of Travancore, Kollankode Branch, Kanyakumari District in Tamil Nadu. The account was being operated in the name of the third respondent and his wife, Vilasini. (3.) THE appellant then approached the Branch Manager of the State Bank of Travancore at Kolla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s necessary to refer to the statutory provisions. Section 52 of the State Bank of India (Subsidiary Banks) Act, 1959 (corresponding to Sec. 44 of the State Bank of India Act, 1955) reads as follows : 52. Obligation as to fidelity and secrecy : (1) A subsidiary bank shall observe, except as otherwise required by law, the practices and usages customary among bankers, and in particular, it shall not divulge any information relating to, or to the affairs of, its constituents except in circumstances in which it is, in accordance with the law or practice and usage customary among bankers, necessary or appropriate for that bank to divulge such information. (2) Every Director, Auditor, Adviser, Officer or other employee of a subsidiary bank shall, before entering upon his duties, make a declaration of fidelity and secrecy as in the form set out in the Second Schedule; Provided that....................... The aforesaid provision creates an obligation of fidelity and secrecy on the bank, but subject to the following exceptions : (1) as otherwise required by law, and / or (2) as required by the practices and usages customary among bankers. (5.) COMING to the first exception requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that the Bank has a statutory right under Sec. 6 of the Bankers' Books Evidence Act, 1891 to object to any order directing inspection of their books though the order is made under S. 94 of the Criminal P.C., 1898 (corresponding to Sec. 91 of the Criminal Procedure Code, 1973). It is necessary to hear the bank before any order is made under the provisions of the Criminal P.C. It is also observed that a prima facie case must be made out for such inspection of the bank accounts and that the Court should not order inspection as a matter of course in every case. Otherwise there is a danger of the provision being abused by business rivals. The effect of the judgment of the Bombay High Court is of two -fold (l) notice must be given to the bank before any inspection is ordered and (2) before such notice is given, the Court must come to a prima facie conclusion that the facts of the case justify an inspection. Coming to the second aspect of practices and usages customary among bankers, the position appears to be as follows : In Paget's Law of Banking , Tenth Edition, 1989 (Chapter 15, pages 254 to 257), it is stated that there is a general duty of secrecy on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkes, L.J. in Tournier's case, (1924) 1 KB 461, wherein Atkin, L.J. considered that the right to disclose exists to the extent to which it is reasonably necessary ..... for protecting the bank, or persons interested or the public, against fraud or crime . The author also refers to the report of the Committee on Privacy (the 'Younger Committee') (Cmnd 5012 (1972)). (7.) IN Tannan's Banking Law and Practice in INdia , 18th Edition, 1989 the banker's obligation to secrecy is considered and reference is made to the decision in Tournier case, (1924) 1 KB 461. The author states that there are limitations in the rule to the extent mentioned in Tournier's case. In Shankarlal Agarwalla v. State Bank of India, AIR 1987 Cal 29, Padma Khastgir, J. had occasion to deal with the issue of secrecy. In that case, the customer owned 261 bank currency notes of ₹ 1,000/ -each. He tendered these notes to the bank with declaration form under the High Denomination Bank Notes (Demonetisation) Act, 1978. The customer instructed the bank to make payment of the value of the bank notes to the credit of his Current Account. The bank made declaration made by the customer av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persede the duty of the agent to his principal, (c) of a bank issuing a writ claiming payment of an overdraft, stating on the face of it the amount of the overdraft, and. (d) the familiar case where the customer authorises a reference to his banker. So far as Sec. 6 of the Bankers' Books Evidence Act, 1891 is concerned, the words 'party to a legal proceeding' used there would enable inspection to be made only if such inspection was necessary for the 'purpose of such proceeding'. In other words, there should be a main proceeding in which the Court might come to the conclusion that such inspection was necessary and it would only in such a proceeding that order could be passed for inspection. It was argued that, so far as this O.P. is concerned, the validity of Ext. P4 can be treated as a main case in which the question of the inspection of account of the third respondent has incidentally arisen and that therefore S. 6 applies. But this is again difficult to accept for the following reasons. (9.) IT is, no doubt, true that one of the points in the present case is whether Ext. P4 letter dated 10 -9 -1991 issued by the Regional Office of the State Bank of Trava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, can it be said that it is not entitled to seek help from a Court of Law for discharging its legal obligations? In our view, the Corporation is entitled to seek the assistance of this Court for the aforesaid purposes. THE matter clearly comes within the four corners of duty owed by the bank to the public, and therefore, its private duty to the third respondent cannot prevail. It is, however, argued that this Court cannot issue any direction under Article 226 of the Constitution of India inasmuch as the contract between the third respondent and the bank is a private contract and no writ could be issued. It is also argued that since no other proceeding is pending in which the issue of inspection of bank account arises, we cannot entertain a Writ Petition only for the purpose of collection of information or evidence. We have considered this aspect carefully. It is true that no other main proceeding is pending before us. But, the question here is whether Ext. P4 letter of the first respondent -bank, could rely on S. 52 of the State Bank of India (Subsidiary Banks) Act, 1959 for claiming absolute protection to the bank. We have already held that there is no absolute protection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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