Judgment :- In W.P.No.28833/2003 Petitioner seeks writ of certiorarified mandamus to quash the order dated 08.05.1997 rejecting the letter of resignation submitted by the Petitioner and directing the Respondents to pay all terminal benefits by treating the Petitioner as having resigned from services of the Respondent. W.P.No.28834/2003 has been filed to quash the order of punishment dated 02.01.1998 passed by the Respondent. 2. Brief facts which led to the filing of the writ petitions are as follows: .(i) The Petitioner joined the services of the Respondent Bank in 1977. In 1994 the Petitioner was working at Chandigarh branch of the Respondent Bank. On 29.01.1994 the Petitioner was transferred from Chandigarh to Bangkok, Thailand as Manager – Administration & Accounts. Subsequently on 09.04.1997 the Petitioner was transferred from Bangkok to Mumbai. On 21.04.1997 the Petitioner was relieved from his duties of Bangkok branch in order to enable the Petitioner to report at Mumbai Branch. In the said letter the Petitioner was advised to attend a Managers Conference at Chennai on 26th and 27th April 1997. The Petitioner came from Bangkok and attended the Managers Conference at Chennai on 26th and 27th April 1997. The Bank vide letter dated 08.05.1997 refused to accept the resignation on the ground that the resignation is not in accordance with Rule-13(i) of Bharat Overseas Bank Limited Officers Service Rules, 1990. .(ii) The Petitioner was to report for duty on 02.05.1997 and he was given ten days leave before he reported at Mumbai. The Petitioner has also attended the Managers Conference at Chennai on 26th and 27th of April 1997. (iii) The Petitioner was relieved at Bangkok and he came down to India and on 30.04.1997, petitioner had submitted a letter seeking 24 days leave due to alleged ill-health of his wife. The Respondent by letter dated 02.05.1997 declined to grant him leave due to exigencies of work. The Petitioner however tendered his resignation by the letter dated 02.05.1997 seeking to be relieved immediately and also enclosed a pay order for Rs.39,000/- towards three months salary in lieu of notice period. (iv) On 14.06.1997 a charge sheet was issued to the Petitioner for disobeying the transfer order and not joining duty at Mumbai and for other charges as mentioned in the charge sheet. The Petitioner received the communication informing him about the appointment of Enquiry Officer and enquiry. (iv) On 14.06.1997 a charge sheet was issued to the Petitioner for disobeying the transfer order and not joining duty at Mumbai and for other charges as mentioned in the charge sheet. The Petitioner received the communication informing him about the appointment of Enquiry Officer and enquiry. On 29.09.1997, petitioner requested for adjournment of the enquiry by three weeks and claiming for the cost of his travel. The Petitioner was informed by the Respondent Bank by the letter dated 010. 1997, that the Petitioner was entitled to claim travel expenses only from the place of posting to the place where enquiry is conducted. Petitioner was further informed that as he did not report for duty at Mumbai, he was not entitled to claim the cost of his travel from Bangkok to Chennai. Enquiry was adjourned to 11. 1997 and on that date also, the Petitioner did not appear for the enquiry nor did intimated the Respondent or the Enquiry Officer of his inability to attend. The Enquiry was held exparte and the witnessess were examined. The Enquiry Officer submitted his findings on 212. 1997 holding that the charges levelled against the Petitioner have been proved. By the proceedings dated 02.01.1998, Bank proposed to impose the punishment of reduction of scale of pay of the Petitioner. 3. By the letter dated 08.01.1998 Respondent-Bank informed the Petitioner that since the disciplinary proceedings were over, they would consider his resignation subject to three conditions: .(1) Petitioner should remit three months salary in Bahts viz., about Bahts 1,02,000/-in lieu of notice. .(2) Petitioner should reimburse to the Bank Bahts 5650/-being the advance received by the Petitioner from Bangkok towards air fare to India as the Petitioner did not report for duty at Fort branch, Mumbai. .(3) Petitioner should reimburse a sum of Bahts 91,800/-received by him towards encashment of overseas leave. 4. Petitioner by the letter dated 17.01.1998, had raised certain points asking for the grounds of above said claim. In fact the Petitioner had sent the reply by the letter dated 31.01.1998 explaining the basis of the claim. .5. By the letter dated 01.02.1999 enclosing a blank receipt in full and final settlement of his dues the Petitioner had stated the Bank could appropriate the amount out of terminal benefits and that the balance amount be paid to him. In fact the Petitioner had sent the reply by the letter dated 31.01.1998 explaining the basis of the claim. .5. By the letter dated 01.02.1999 enclosing a blank receipt in full and final settlement of his dues the Petitioner had stated the Bank could appropriate the amount out of terminal benefits and that the balance amount be paid to him. Bank therefore had appropriated the amount equivalent to Bahts 1,99,450/- i.e. Rs.2,28,610/-from the Petitioners terminal dues and informed the Petitioner of the same. 6. Challenging the order of rejection of the letter of resignation submitted by the Petitioner and imposing the punishment of reduction in rank Petitioner has filed these writ petitions. 7. Opposing the Petitions, Respondent Bank has filed counter stating that in contravention to Bank rules, Petitioner had taken up employment in Bangkok with M/s. Indo Rama Group which is in contravention to Rule 16 (i) of Officers Conduct, Discipline & Appeal Rules 1990 and therefore Petitioner was proceeded with by way of disciplinary proceedings. Respondent Bank further averred that Petitioner ought to have joined duty in Mumbai and only to evade the same Petitioner has submitted his resignation. Stand of Respondent bank is that resignation submitted by the Petitioner was not in conformity with the Bank Service rules and therefore resignation was not accepted. Learned counsel for the Respondent Bank Mr. V. Karthik has interalia raised objection regarding the maintainability of the writ petitions. 8. Learned Counsel for the Petitioner Mr. C. Manohar Gupta submitted that once the resignation is accepted there is no question of disobedience of the transfer order and the charge sheet issued for the alleged absence is malafide and unsustainable. It was further submitted that when contract provides for three months notice Petitioner had sent his resignation and the same ought to have been accepted and there cannot be charges for disobedience. 9. Raising strong objection as to maintainability of the writ petition Mr. V. Karthic, learned counsel for the Respondent Bank contended that writ petition against nonscheduled Bank – Bharat Overseas Bank is not maintainable. It was further submitted that the scope of writ of mandamus is determined by the nature of duty to be enforced. It was further argued that no public duty is involved in the writ petitions and that the nature of dispute pertains to services and therefore writ petition is not maintainable .10. It was further submitted that the scope of writ of mandamus is determined by the nature of duty to be enforced. It was further argued that no public duty is involved in the writ petitions and that the nature of dispute pertains to services and therefore writ petition is not maintainable .10. Submitting that the Petitioners resignation was not in inconformity with Bank Service Rules the Bank has not accepted the resignation, learned counsel for the .Respondent Bank contended that since there was violation of Bank Service Rules for unauthorized absence charges were framed against Petitioner. The learned counsel further submitted that Petitioner having been relieved from Bangkok and having not joined duty on Mumbai was reckoned as Officer on duty at Bangkok and Bank was justified in directing the Petitioner to remit three months salary in Bahts and to reimburse 91,800/-Bahts received by the Petitioner towards encashment of overseas leave. 11. On the other hand learned counsel for the writ petitioner contended that though the dispute pertains to "service", it involves payment of provident fund and gratuity which is a "public function" amounting to "public duty" and therefore writ petition is not maintainable. 12. Learned counsel relied on the decision of the Supreme Court reported in 1983(1) L.L.N.289, D.S. Nakara and others vs. Union of India, wherein the Honble Supreme Court has held that the classification in revised pension formula among the pensioners on the basis of the date of retirement specified in memoranda, is violative and arbitrary of Article 14 of the Constitution of India, and the same being severable, beneficial part was retained and made applicable to all pensioners. 13. In 1999(3) L.L.N. 310 A.K.Ansari and another vs. Bharat Overseas Bank Ltd. (represented by its Chairman), Madras and another) wherein the High Court held that the eight of pension is a matter of livelihood and denial of such livelihood offends the Constitution and such a situation is monstrous in respect of retirees who lead a frugal life and the Court allowed the pensionary benefits in favour of a retired employee of the Bharat Overseas Bank, Ltd. .14. With regard to the maintainability of the writ petition against Bharat Overseas Bank reliance was also placed on the decision of Justice P.K. Misra in 2003(1) L.L.N. 372 K.S.P.Dora vs. Chairman & M.D., Bharat Overseas Bank Ltd., In the said case resignation letter of the Petitioner was rejected on the ground that the same was not in accordance with rules. In the said case issue involved was payment of provident fund and gratuity and question of rejection of resignation was involved and observing that resignation letter should have been accepted by the Bank. Learned Judged directed the terminal benefits to the Petitioner there on treating the Petitioner to have resigned w.e.f April 30,1993. Much reliance was placed upon these decisions to contend that the writ petition against Bharat Overseas Bank is maintainable. It is pertinent to note that in the said case, maintainability of writ petition was not raised and therefore the Learned Single Judge did not have occasion to go into the question of maintainability of the writ petition against a non-scheduled Bank. 15. In so far as maintainability of the writ petition is concerned, the learned counsel for the writ petitioner would further submit that during the pendency of the writ petition the shareholding of Bharat Overseas Bank was acquired by Indian Overseas Bank by a transfer scheme of 2007, which was published in the Government Gazette dated 12.03.2007. In view of acquisition of Bharat Overseas Bank by Indian Overseas Bank, Petitioner filed petitions to implead Indian Overseas Bank as party to the writ petitions and the same was allowed. According to the Petitioner, in view of acquisition of shares of Bharat Overseas Bank by Indian Overseas Bank the writ petition is maintainable. 16. In support of his contention as to maintainability of the writ petition, the learned counsel for the Petitioner has drawn Courts attention to the order of the High Court in W.P.No.49012 of 2006 (dated 12.03.2008) wherein Justice Chandru has held that the writ petition filed against the Bharat Overseas Bank is maintainable. Observing that in the light of subsequent developments and since under the Scheme of Merger dated 12.03.2007, all the liabilities and pending Court actions vest with the transferee bank (I.O.B), the question about maintainability would not arise the Learned Judge held that the writ petition filed against Bharat Overseas Bank is maintainable. 17. Observing that in the light of subsequent developments and since under the Scheme of Merger dated 12.03.2007, all the liabilities and pending Court actions vest with the transferee bank (I.O.B), the question about maintainability would not arise the Learned Judge held that the writ petition filed against Bharat Overseas Bank is maintainable. 17. Learned counsel for the Respondent Bank would submit that challenging the order in W.P.No.49012/2006 the Bank has filed W.A.No.738/2007 and the appeal is said to be pending. While the judgment in W.P.No.49012/2006 is under challenge, reliance cannot be placed upon the above decision with regard to the maintainability of the writ petition. 18. Learned counsel for the writ petitioner would also draw Courts attention to my judgment in ICICI Bank in (W.P.Nos.32502/2003 and batch matters) wherein I have held that the batch of writ petitions filed against the ICICI Bank is maintainable. The said batch of writ petitions related to payment of pension in which public element is involved. In view of such statutory obligation of ensuring payment of pension by the employer concerned and the Public element involved, in the batch of writ petitions referring to D.S. Nakaras case, I have taken the view that the writ petition is maintainable against ICICI Bank. The question pertaining to service and terms of employment, no public element is involved, so as to the writ petition under Article 226 of the Constitution of India. 19. The question whether a "writ" can be issued on a private company, which is not a statutory body or having any public duty or responsibility imposed by "statute", fell for consideration before the Supreme Court in the decision reported in A.I.R. 1969 S.C. 1306 Praga Tools Corporation vs C. V. Imanual, wherein the following observations were made by the Supreme Court: "6.......... Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal 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 pertains to his or their office and is in the nature of a public duty. 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 pertains 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 authorizing 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]" 20. Similar question relating to maintainable of a "writ" under Art.226 of the Constitution of India, was considered by the Supreme Court in 2003 (4) L.L.N. 469 (Federal Bank Ltd vs. Sagar Thomas and others). In the said case, the Honble Supreme Court observed that a writ petition under Art.226 of the Constitution of India may be maintained against a private body discharging public duty or positive obligation of public nature. Similar argument advanced on behalf of or an employee that the Federal Bank performs public duty, in the light of the control of the Reserve Bank of India over the banking industries, was accepted by the High Court. Honble Supreme Court on appeal preferred by the Federal Bank, Ltd reversed such finding with the following observations in paras 24 and 47: "24. From the decisions referred to above the position that emerges is that a writ petition under Art.226 of the Constitution of India may be maintainable against .(i) the State (Government) .(ii) an authority; (iii) a statutory body; .(iv) an instrumentality or agency of the State; .(v) a company which is financed and owned by the State; .(vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any stature, to compel it to perform such a statutory function. ............. 47. ............. 47. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We dont find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Art.226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant-bank. The Respondents service with the bank stands terminated. The action of the bank was challenged by the Respondent by filing a writ petition under Art.226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the bank. That being the position, the appeal deserves to be allowed." 21. Observing that writ of mandamus is pre-eminently a public law remedy, in (2005) 6 SCC 657 Binny Ltd vs. V. Sadasivan and others the Honble Supreme Court has held as follows: "......... 21. Another decision on the same subject is G.M., Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad [ (2003) 8 SCC 639 ]. The appellant was a cooperative society and was engaged in the manufacture of sugar. The respondents were the workers of the appellant and they filed various writ petitions contending that they had to be treated as permanent workmen. The appellant challenged the maintainability of those writ petitions and applying the principles enunciated in VST Industries case, it was held by this Court that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution as the mill was engaged in the manufacture and sale of sugar which would not involve any public function. 22. In Federal Bank Ltd. v. Sagar Thomas [ (2003) 10 SCC 733 ] the respondent was working as a Branch Manager of the appellant Bank. 22. In Federal Bank Ltd. v. Sagar Thomas [ (2003) 10 SCC 733 ] the respondent was working as a Branch Manager of the appellant Bank. He was suspended and there was a disciplinary enquiry wherein he was found guilty and dismissed from service. The respondent challenged his dismissal by filing a writ petition. The learned Single Judge held that the Federal Bank was performing a public duty and as such it fell within the definition of “other authorities” under Article 12 of the Constitution. The appellant Bank preferred an appeal, but the same was dismissed and the decision of the Division Bench was challenged before this Court. This Court observed that a private company carrying on business as a scheduled bank cannot be termed as carrying on statutory or public duty and it was therefore held that any business or commercial activity, whether it may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money which do have an impact on the economy of the country in general, cannot be classified as one falling in the category of those discharging duties or functions of a public nature. It was held that the jurisdiction of the High Court under Article 226 could not have been invoked in that case. .......... 29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is preeminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies." 22. Referring to various decisions in 2008 (3) L.L.N. 320 ICICI Bank vs. Lakshminarayanan speaking for the Bench Justice S.J. Mukhopadhaya has held that, writ petition against ICICI is not maintainable. The Bench has observed that the grant of "Pension" on VRS under the relevant pension scheme cannot be a ground to hold that the Bank is performing a public duty or public function. 23. In Plethora of decisions, it is fairly well settled that writ of mandamus or remedy under Article 226 is pre-eminently a public law remedy is available against a public body or person performing a public function and is not generally available as a remedy against private Body. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity against whom it is sought. 24. In the instant case, the subject matter of dispute pertains to acceptance and resignation and whether the Petitioner should remit the amount is called upon by the Respondent Bank. According to the Respondent Bank the resignation letter was not in accordance with Rule 13(i) of Bank service Rules. Further case of Respondent Bank is that as the resignation was not in conformity with Bank service rules and therefore the Petitioner cannot insist to tender his resignation and instantaneously seek to be relieved. Controversy between parties relates to interpretation of service conditions and the disciplinary proceedings and the punishment imposed thereon. No public function or public element is involved in the subject matter of dispute between parties so as to maintain the writ petition. The writ petitions are liable to be dismissed as not maintainable. 25. Controversy between parties relates to interpretation of service conditions and the disciplinary proceedings and the punishment imposed thereon. No public function or public element is involved in the subject matter of dispute between parties so as to maintain the writ petition. The writ petitions are liable to be dismissed as not maintainable. 25. In the result, the writ petitions are dismissed as not maintainable.