Banking Business Facilitators Association v. Chairman, State Bank of India
2016-11-30
AHSANUDDIN AMANULLAH, HEMANT GUPTA
body2016
DigiLaw.ai
JUDGMENT : Hemant Gupta, J. 1. This order shall dispose of L.P.A. No.1274 of 2015 and L.P.A. No.1516 of 2016 preferred by the writ applicants. 2. L.P.A. No.1516 of 2016 is directed against an order passed by the learned Single Judge on 8th of August, 2013, whereas L.P.A. No.1274 of 2015 is directed against an order dated 29th April, 2015, whereby a petition for review of the order dated 8th August, 2013 remained unsuccessful. 3. The brief facts, out of which the present appeals arise, are that the Reserve Bank of India on 25th January, 2006 issued a Circular to all Scheduled Commercial Banks for use of Business Facilitators and Correspondents for extension of Banking Services. The objective of the Scheme; the eligible entities and scope of activities contained therein are reproduced below:- "Financial inclusion by Extension of Banking Services-Use of Business Facilitators and Correspondents : With the objective of ensuring greater financial inclusion and increasing the outreach of the banking sector, it has been decided in public interest to enable banks to use the services of Non- Governmental Organisations/ Self Help Groups (NGOs/ SHGs), Micro Finance Institutions (MFIs) and other Civil Society Organisations (CSOs) as intermediaries in providing financial and banking services through the use of Business Facilitator and Correspondent models as indicated below. 2. Business Facilitator Model: Eligible Entities and Scope of Activities 2.1 Under the Business Facilitator model, banks may use intermediaries, such as, NGOs/ Farmers' Clubs, cooperatives, community based organisations, IT enabled rural outlets of corporate entities, Post Offices, insurance agents, well functioning Panchayats, Village Knowledge Centres, Agri Clinics/ Agri Business Centers, Krishi Vigyan Kendras and KVIC/ KVIB units, depending on the comfort level of the bank, for providing facilitation services. Such services may include (i) identification of borrowers and fitment of activities; (ii) collection and preliminary processing of loan applications including verification of primary information/data; (iii) creating awareness about savings and other products and education and advice on managing money and debt counselling; (iv) processing and submission of applications to banks; (v) promotion and nurturing Self Help Groups/ Joint Liability Groups; (vi) post-sanction monitoring; (vii) monitoring and handholding of Self Help Groups/ Joint Liability Groups/ Credit Groups/ others; and (viii) follow-up for recovery. 4. Payment of commission/ fees for engagement of Business Facilitators/ Correspondents Banks may pay reasonable commission/fee to the Business Facilitators/ Correspondents, the rate and quantum of which may be reviewed periodically.
4. Payment of commission/ fees for engagement of Business Facilitators/ Correspondents Banks may pay reasonable commission/fee to the Business Facilitators/ Correspondents, the rate and quantum of which may be reviewed periodically. RBI Master Circular DBOD.Dir.5/13. 07.00/2005-06 dated July 1, 2005 may be treated as modified to that extent. The agreement with the Business Facilitators/ Correspondents should specifically prohibit them from charging any fee to the customers directly for services rendered by them on behalf of the bank. 5. Other Terms and Conditions for Engagement of Business Facilitators and Correspondents 5.1 As the engagement of intermediaries as Business Facilitators / Correspondents involves significant reputational, legal and operational risks, due consideration should be given by banks to those risks. They should also endeavour to adopt technology-based solutions for managing the risk, besides increasing the outreach in a cost effective manner. In formulating their schemes, banks may be guided by the recommendations made in the Khan Group Report as also the draft outsourcing guidelines released by Reserve Bank of India on December 6, 2005 (available on RBI website: www.rbi.org.in). 5.2 The arrangements with the Business Correspondents shall specify : (a) suitable limits on cash holding by intermediaries as also limits on individual customer payments and receipts, (b) the requirement that the transactions are accounted for and reflected in the bank's books by end of day or next working day, and (c) all agreements/contracts with the customer shall clearly specify that the bank is responsible to the customer for acts of omission and commission of the Business Facilitator/ Correspondent.? 4. It is on the basis of the said decision, the respondent-Bank issued a Circular on 3rd April, 2007 for engagement of Business Facilitators and Correspondents. The Scheme delineates objective, selection procedure, eligible entities and the fee for the Business Facilitators. The relevant objectives and the fee rates are as under: 1. Objectives : To substantially increase our rural business base and market share. To market various financial products of the State Bank Group including insurance and mutual funds across the nation. To extend Micro Finance services for uplifting the poor. To extend banking facilities in untapped/unbanked areas through the use of existing branch network and new technology in combination with outsourcing. To emerge as the leader in 'Financial Inclusion' and be acknowledged as one. 6.
To extend Micro Finance services for uplifting the poor. To extend banking facilities in untapped/unbanked areas through the use of existing branch network and new technology in combination with outsourcing. To emerge as the leader in 'Financial Inclusion' and be acknowledged as one. 6. Remuneration/Fees for engagement of Business Facilitators/Correspondents: (i) For each of the services entrusted to Business Facilitators/Business Correspondents, remuneration will be paid as indicated in Annexure-5. (ii) The Business Facilitators/Business Correspondents are prohibited from charging any fee from the customer directly for services rendered by them on behalf of the Bank, unless specifically approved by the Bank. (iii) BCs/BFs will also be given specific targets for the various products marketed by them and will be eligible for additional incentives for exceeding the targets. These numbers, as also the remuneration schedule as furnished in Annexure-5, will be finalized based on our expense we go ahead.? 5. Annexure-5 mentioned in the Circular provides for remuneration related to the work performed. It is in pursuance of such Scheme; an advertisement was published on 25th May, 2007. It is in pursuance of such an advertisement, the appellants responded and were called for interview and subsequently selected. After selection, an agreement was executed. One of such agreements is on record. The Business Facilitators, such as the appellants, have been termed as 'Service Providers'. The agreement contains relationship between the parties, fee and taxes payable and the terms and conditions of the termination of contract. The said clauses read as under: 4. Relationship between the parties: 4.1. It is specifically agreed that SP shall act as independent service provider and shall not be deemed to be the Agent of the Bank except in respect of the transactions/services which give rise to Principal Agent relationship by implication. 4.2. Neither SP nor its employees, agents, representatives, Sub Contractors shall hold out or represent as agents of the Bank. None of the employees, representatives or agents of SF shall be entitled to claim permanent absorption or any other claim or benefit against the Bank. 6. Fees, Taxes, Duties and Payments : 6.1. SP shall be paid fees and commission in the manner detailed in Schedule 'B' hereunder written subject to deduction of income tax thereon wherever required under the provisions of the Income Tax Act by the Bank. 6.2.
6. Fees, Taxes, Duties and Payments : 6.1. SP shall be paid fees and commission in the manner detailed in Schedule 'B' hereunder written subject to deduction of income tax thereon wherever required under the provisions of the Income Tax Act by the Bank. 6.2. All other taxes including service tax, duties and other charges which may levied shall be borne by the SP and the Bank shall not be liable for the same. 6.3. All expenses, stamp duty and other charges expenses in connection with execution of this agreement shall be borne by SP. 8. Term and Termination 8.1. The agreement shall be valid for a period of one year from the date of its execution and may be renewed for such further periods as may be mutually agreed between the parties. 8.2. The Bank as well as SP shall have right to terminate the agreement by giving a month notice in writing to the other party. In the event of termination of the agreement by SP, all record, information including documents etc. shall be returned by SP to the Bank as per instructions of the Bank. 8.3. The Bank shall have a right to terminate the agreement immediately by giving a notice in writing to SP in the following eventualities. xxx xxxx 8.4. In the event of the termination of the agreement by the Bank pursuant to clause 8.3. herein above, SP shall be liable and responsible to return all records and information in its possession as envisaged under clause 8.2. above.? 6. It was on 11th of April, 2012, the respondent-Bank decided, in view of the fact that the purpose of engaging the Business Facilitators in achieving grater financial inclusive goals has not been served, to discontinue the engagement of fresh individual Business Facilitators on expiry of their agreements. The Circular reads as under: "No.RB/AC/RKA/58 Date: 11.04.2012 Dear Sir, Review of functioning of Business Facilitators (BFs) Discontinuation of engagement of individual BFs Termination of individual BFs on expiry of agreement. As permitted by RBI in January, 2006, the engagement of outsourced channel of Business Facilitators was initiated to achieve greater Financial Inclusion and also to source business (deposit and loans) in rural and semi-urban areas. The objective for engaging BFs was primarily to achieve greater Financial incusion (FI) goals. 2.
As permitted by RBI in January, 2006, the engagement of outsourced channel of Business Facilitators was initiated to achieve greater Financial Inclusion and also to source business (deposit and loans) in rural and semi-urban areas. The objective for engaging BFs was primarily to achieve greater Financial incusion (FI) goals. 2. However, over a period of time, it is observed that the purpose of engaging BFs in achieving the Financial Inclusion goal of the Bank has not been served. We have also been receiving complaints regarding BFs (individuals) not functioning as per laid down instructions and indulging in certain wrong practices. 3. In view of above and also the likely reputation risk to the Bank, the functioning of the BF channel has been reviewed by us and it has been decided to- (i) Discontinue the engagement of fresh individual BFs. (ii) Terminate existing individual BFs on expiry of their agreements. As regards existing entity BFs (Corporate and NGOs), each case may be reviewed separately based on their contribution to Financial inclusion objectives and appropriate action taken. New entity BFs may be continued to be engaged on selective basis. The Business Correspondents (BCs), may however be permitted to carry out BF activities in RUSU areas only. 4. Disngagement of individual BFs should result in reviving the marking potential of the Branches. 5. Please arrange to issue suitable instructions to operating staff, Administrative Units and Branches functioning under the jurisdiction of the Circle, for compliance." 7. It is thereafter, the contracts of individual Business Facilitators, such as the appellants, were terminated. The appellants as well as their Association filed a writ application before this Court which was dismissed. The order of the Bank was stayed, including termination, by this Court on 14.08.2012. As on now, services of all the Business Facilitators have come to an end on completion of their contract period and such contracts have not been renewed. Even the review application was dismissed. Still aggrieved, the writ applicants are in appeals before this Court. 8. The learned Single Judge dismissed the writ application, inter alia, on the ground that it is a policy decision as to whether the Bank would like to continue to avail the services of the Business Facilitators which policy decision does not warrant interference in the writ jurisdiction.
Still aggrieved, the writ applicants are in appeals before this Court. 8. The learned Single Judge dismissed the writ application, inter alia, on the ground that it is a policy decision as to whether the Bank would like to continue to avail the services of the Business Facilitators which policy decision does not warrant interference in the writ jurisdiction. The reliance of the appellants on the interim orders of different courts was not found to be meritorious in view of the judgments of Karnataka High Court as well as Madhya Pradesh High Court wherein the writ petitions filed by the Business Facilitators were dismissed. 9. Before this Court, the argument of learned counsel for the appellants is that the appellants were trained Insurance Agents and have left the said assignment to join the respondent-Bank. The appellants have worked satisfactorily, which the appellants support relying upon their performance appraisal. Therefore, there is no reason to terminate their contracts. It is also contended that the Bank has created artificial classification in respect of individual Business Facilitators whose contract was terminated, whereas contract of NGOs was not interfered with. Thus, in view of the parity of work by the individual Business Facilitators or through the NGOs, the classification made is unjustified. 10. In the unsigned written notes of arguments submitted on behalf of the appellants, it is, inter alia, asserted that by serving the Bank, the appellants eked out their livelihood and maintaining their children and old age parents. They have served the Bank more than its regular employees and though they were entitled for salaries, the Bank used their services on commission basis. It is also pointed out that along with the Business Facilitators, the Business Correspondents and Rural Marketing Recovery Officers were also recruited by the Bank. Though the Business Facilitators and Business Correspondents were recruited on commission basis, whereas the Rural Marketing Recovery Officers were recruited on salary basis, though on contract. It is asserted that the services of Rural Marketing Recovery Officers were regularised, services of Business Correspondents were allowed to continue, but in respect of Business Facilitators, it has been decided to terminate their services. Thus, the decision to terminate the services of Business Facilitators is arbitrary and illegal.
It is asserted that the services of Rural Marketing Recovery Officers were regularised, services of Business Correspondents were allowed to continue, but in respect of Business Facilitators, it has been decided to terminate their services. Thus, the decision to terminate the services of Business Facilitators is arbitrary and illegal. It is also asserted that it is not the case of the Bank that there is no requirement of Business Facilitators and that, in fact, the Bank has benefited very much. The Business Facilitators are paid in proportionate to their performance; therefore, the Business Facilitators are not at all burden on the Bank. 11. In the written argument filed on behalf of the appellants, there is an insuniation against the Bench that Court could not give time due to paucity of time as the Counsel tried to illustrate on the policy of the Reserve Bank of India and the State Bank of India. It is asserted that there is no reason to regularise the services of the Business Co-respondents, but to terminate the services of the Business Facilitators, there cannot be any such policy decision; nor is there any justification for making unreasonable discrimination with the individual Business Facilitators. In the written arguments, the appellants have referred to the act of conferring status of regular employees upon Technical Officers Farm Sector and Officers Marketing and Recovery on contract basis, therefore, no grievance was made in the writ application. 12. On the other hand, learned counsel for the Bank submitted that the engagement of the Business Facilitators was on contract basis and there was no employee and employer relationship. The Business Facilitators were engaged on commission basis and that it is a policy decision as to whether the Bank would like to continue to engage Business Facilitators with the object of having financial inclusion or not. Since the appointment of the appellants was contractual, purely on commission basis, and the fact that the appellants have joined the Business Facilitators knowing well the terms and conditions, there cannot be any plea of promissory estoppel as none was made at any stage. The engagement was purely contractual on commission basis and, thus, could be terminated at any point of time in terms of the agreement entered upon. Therefore, the appellants have no justified cause to invoke the extra-ordinary jurisdiction of this Court.
The engagement was purely contractual on commission basis and, thus, could be terminated at any point of time in terms of the agreement entered upon. Therefore, the appellants have no justified cause to invoke the extra-ordinary jurisdiction of this Court. Reliance is placed upon judgments of the Hon'ble Supreme Court in the cases of State of M.P. and others v. Nandal Jaiswal, (1986) 4 SCC 566 ; State of Orissa and Ors. v. Gopinath Das and Ors, (2005) 13 SCC 495 ; and M/s Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. and Ors. (2011) 1 SCC 640 . 13. It is also contended that writ will not lie in the contractual employment of personal service. Reference is made to the judgment of the Supreme Court in the case of Kerala State Electricity Board and Ors. v. Kurien E. Kalathil and Ors. (2000) 6 SCC 293 . 14. It is also contended that many High Court have upheld the action of Bank in terminating the services of the Business Facilitators, such as the appellants. 15. We have heard learned counsel for the parties and are unable to agree with the arguments raised by the learned counsel for the appellants. 16. The question to be examined is what is the nature of the employment? The process of appointment of Business Facilitators was initiated on the basis of the Circular of the Reserve Bank of India dated 25th January, 2006. The purpose was to ensure greater fiancial inclusion and to increase outreach of the Banking Sector. The Circular itself contemplated engagement of Business Facilitators on payment of reasonable commission. It is thereafter, the Bank circulated a Scheme on 3rd of April, 2007. The Scheme also contemplated payment of commission relating to work performed. In the advertisement issued, there is no promise that the Business Facilitators shall be conferred status of regular employees at any stage. After selection, the agreement executed again shows that it is a contract for a limited term which can be extended from time to time. There is a specific condition that the Business Facilitators shall act as an independent service provider and shall not be deemed to be an agent of the Bank, except in respect of transactions/ services which give rise to Principal Agent relationship by implication.
There is a specific condition that the Business Facilitators shall act as an independent service provider and shall not be deemed to be an agent of the Bank, except in respect of transactions/ services which give rise to Principal Agent relationship by implication. With such conditions, in the policy, circulars and in the agreement, the services of the appellants are nothing but purely contractual for a fixed period and on a commission corresponding to work performed. In terms of the conditions in the agreement, the appellants are not even the agents of the Bank and are independent service provider. Therefore, the appellants cannot claim to have any right of employment against the Bank either on basis of doctrine of promissory estoppel or in terms of the contract. 17. If such was the contract, whether the appellant could make a grievance of their termination of contracts vide Circular dated 11th April, 2012. Since the appointment was contractual with specified condition that it can be terminated in the manner prescribed in the agreement, therefore, the appellant could not claim any right to continue under the Bank. It is the decision taken by the appellants to leave the Insurance jobs and to join the Bank, but at no stage, the Bank has directly or indirectly promised any job security or the fact that the services will be regularised. 18. The stand of the appellants that the services of the Business Correspondents have not been terminated or that the services of Rural Marketing Recovery Officers have been regularised or that the contracts of NGOs working as Business Facilitators have not been terminated will not confer any enforceable right in favour of the appellants. Each of the categories is separate and distinct. The services of the appellants have been terminated or not extended keeping in view the agreements executed by them with the Bank. Since each of the categories, i.e. Business Facilitators, Business Correspondents and Rural Marketing Recovery Officers is separate and distinct, the Bank could frame a policy in respect of each or all of them in the manner which is suitable to the economic and the objective criteria of the Bank. In the matter of policy, where, the power of judicial review is limited. 19.
In the matter of policy, where, the power of judicial review is limited. 19. In Nandlal Jaiswal's case (supra), the Hon'ble Supreme Court has held that having regard to the nature of trade and business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. "34. But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government has done, unless it appears to be plainly arbitrary, irrational or mala fide. We had occasion to consider the scope of interference by the Court under Article 14 while dealing with laws relating to economic activities in R.K. Garg v. Union of India, (1981) 4 SCC 675 . We pointed out in that case that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. We observed that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. We quoted with approval the following admonition given by Frankfurter, J. in Morey v. Dond, 354 US 457: "In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct.
We quoted with approval the following admonition given by Frankfurter, J. in Morey v. Dond, 354 US 457: "In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the Judges have been overruled by events - self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability." What we said in that case in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as legislative judgment insofar as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call "trial and error method" and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait jacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or "play in the joints" to the executive. "The problem of Government" as pointed out by the Supreme Court of the United States in Metropolis Theatre Co. v. State of Chicago, 57 L Ed 730" "are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void."" The Government, as was said in Permian Basin Area Rate cases 20 L ED (2d) 312 is entitled to make pragmatic adjustments which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical.
The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution." (Emphasis supplied) 20. In M/s. Bajaj Hindustan Ltd.'s case (supra), the Supreme Court held to the following effect:- "21. It is settled law that in the areas of economics and commerce, there is far greater latitude available to the executive than in other matters. The Court cannot sit in judgment over the wisdom of the policy of the legislature or the executive. Thus in BALCO Employees' Union (Regd.) v. Union of India, (2002) 2 SCC 333 , it was observed: (SCC pp. 381-82, paras 92-93) "92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. 93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved.? In the same decision in SCC para 39 it was observed: (BALCO Employees' case, (2002) 2 SCC 333 , SCC pp. 358-59) "39. In Premium Granites v. State of T.N, (1994) 2 SCC 691 while considering the court's powers in interfering with the policy decision, it was observed at p. 715 as under: (SCC para 54) "54. It is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved.
It is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be.' " . 21. In Gopinath Dash's case (supra), the Supreme Court held that scope of judicial review is confined on the question as to whether the decision taken by the Government is against the statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. The Court said as under:- "5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364: AIR 1989 SC 1899 , and Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 : AIR 1990 SC 1277 ). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere. 6. The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles.
7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government." 22. In another judgment, reported as Brij Mohal Lal v. Union of India, (2012) 6 SCC 502 , the Supreme Court was considering the matter whether the Fast Track Court established under the Scheme of the Central Government can be directed to be continued by the Government. It was held that is matter of policy having financial implications; therefore, there cannot be any direction to continue with such Scheme. The Court held to the following effect:- "96. It is a settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide. 97. In bringing out the distinction between policy matters amenable to judicial review and those where the courts would decline to exercise their jurisdiction, this Court in Bennett Coleman and Co. v. Union of India, (1972) 2 SCC 788 , held as under: (SCC p. 834, para 125) "125. ...
97. In bringing out the distinction between policy matters amenable to judicial review and those where the courts would decline to exercise their jurisdiction, this Court in Bennett Coleman and Co. v. Union of India, (1972) 2 SCC 788 , held as under: (SCC p. 834, para 125) "125. ... The argument of the petitioners that Government should have accorded greater priority to the import of newsprint to supply the need of all newspaper proprietors to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of governmental policy.? 98. We must examine the cases where this Court has stepped in and exercised limited power of judicial review in matters of policy. In Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364, this Court noticed that, where a challenge is to the action of the State, the court must act in accordance with law and determine whether the State has acted within the powers and functions assigned to it under the Constitution. If not, it must strike down the action, of course, with due caution. Normally, the courts do not give directions or advise in such matters. This Court held as under: (SCC p. 374, para 19) "19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.? (emphasis supplied) 99. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same.
(emphasis supplied) 99. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions. 100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as: (I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional. (II) The change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention. (III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc. (IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions. (V) It is dehors the provisions of the Act or legislations. (VI) If the delegate has acted beyond its power of delegation. 101. Cases of this nature can be classified into two main classes: one class being the matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land; while in the latter class of cases, the scope of such judicial review is far narrower. Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the courts will step in to interfere with government policy?. 23. In view of the judgments referred to above, none of the conditions to challenge the policy decision to do away the Business Facilitator is satisfied.
23. In view of the judgments referred to above, none of the conditions to challenge the policy decision to do away the Business Facilitator is satisfied. Therefore, we find that the decision of the Bank in terminating the services of the appellants cannot be said to be illegal, arbitrary, irrational as such is in terms of the agreement entered upon by the appellants with the Bank. 24. Before parting, we must record that the comments in the written argument submitted on behalf of the appellants raising insinuation against the Bench are uncalled for. We heard learned counsel for the appellant on 25.10.2016 and, particularly, wanted to find out the extent of power of judicial review in the policy matter. The learned counsel stated that he will give a list of books, but in the written arguments filed, there is no reference to any precedent. 25. Consequently, both the appeals are dismissed. Ahsanuddin Amanullah, J. - I agree.