Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 439 (RAJ)

Vaibhav Samuel v. Union of India

2019-02-06

SANJEEV PRAKASH SHARMA

body2019
JUDGMENT : Sanjeev Prakash Sharma, J. 1. The preliminary question which arises in this petition is that whether the writ petition would lie against the respondent HDFC Bank which is admittedly a private Corporate Bank registered under the Companies Act and has not been incorporated under a Statute. Learned counsel for the petitioner was confronted with the Full Bench Judgment of this Court in the case of Gopal Prasad Varshney Versus Bank of Rajasthan Ltd., 2009 (2) ILR (Raj.) 601, wherein Full Bench of this Court held that writ petition would not be maintainable against a Bank incorporated under the Companies Act namely Bank of Rajasthan. Learned counsel for the petitioner submits that the judgment passed by the Supreme Court in M/s. Zee Tele Films Ltd. and Another vs. Union of India and Others, AIR 2005 Supreme Court 2677, has held as under:- "33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226. Therefore, merely because a nongovernmental body exercises some public duty that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case (supra), hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable." 2. This Court is of the view that judicial discipline demands that once a Full Bench of this Court has taken a view, a Single Judge would not question the same unless there is a subsequent judgment which has come from the Supreme Court taking a different view. This Court is of the view that judicial discipline demands that once a Full Bench of this Court has taken a view, a Single Judge would not question the same unless there is a subsequent judgment which has come from the Supreme Court taking a different view. Judicial Discipline and law of precedents have been aptly discussed by the Apex Court in Official Liquidator vs. Dayanand and Others, (2008) 10 SCC 1 that apart in another case reported in (2003) 10 SCC 733 , Federal Bank Limited vs. Sagar Thomas and Ors., the Apex Court has held as under:- "A writ petition under Article 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 a public duty or positive obligation of a public nature; and (viii) a person or a body under a liability to discharge any function under any statute, to compel it to perform such statutory function. It is no doubt true that a mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party." 3. The said judgment was considered by the Full Bench in the case of Gopal Prasad Varshney vs. Bank of Rajasthan Ltd. (supra), and it was held as under:- "80. Therefore, in view of the ratio decided by the Hon'ble Supreme Court in the case of Federal Bank Ltd. vs. Sagar Thomas and Ors. (supra), we answer the question referred by the learned Single Judge in the terms that the respondent Bank of Rajasthan Limited is not a State within Article 12 of the Constitution of India and is not amenable to the writ jurisdiction under Article 226 of the Constitution of India." 4. Learned counsel for the petitioner has submitted written submissions. While he challenges Clause 12 of the document (Annexure-3) and the consequential termination order dt. Learned counsel for the petitioner has submitted written submissions. While he challenges Clause 12 of the document (Annexure-3) and the consequential termination order dt. 31/03/2018 on the ground of being arbitrary and being draconian and such a condition being part of the document of employment to be treated as void ab-initio, keeping in view the judgment passed by the Supreme Court in the case of Central Inland Water Transport Corporation vs. Brojo Nath Ganguly & Anr., AIR 1986 SC 1571 , the arguments have also been advanced on the maintainability of the writ petition. 5. Learned counsel for the petitioner submits that the respondent is a banking organization carrying out activities similar to public sector banks and is dealing with the public money thereby discharging public functions under the edges of Union of India and Reserve Bank of India. They are governed by the policies framed by the Reserve Bank of India and they cannot be distinguished from the public sector banks discharging similar functions. He further submits that in view of the law laid down by the Apex Court in the case of M/s. Zee Tele Flints Ltd. And Anr. vs. Union of India and Ors. (supra), even if the respondent-Bank is not a State within the meaning of Article 12 of the Constitution of India, writ petition under Article 226 of the Constitution of India would lie. He also relies on the law laid down by the Apex Court in the case of Anandi Mukta Sadguru Shree Mukherjee Vandas Swami Suvania Jayanti Mahotsava Smarak Trust and Ors. vs. V.R. Rudani & Ors., (1989) 2 SCC 691 . 6. I have given my thoughtful consideration to the averments. A writ petition under Article 226 of the Constitution of India would lie where there is a violation of the individual's rights as enshrined in the Constitution of India. Part 3 of the Constitution of India lays down the fundamental rights available to its citizens. These fundamental rights operate as against the State and the State as defined under Article 12 of the Constitution of India is required to protect the rights as enshrined under the various Articles in Part 3 of the Constitution of India. 7. That apart, the rights of a citizen or an individual may be available under a particular statute or under the Rules framed therein. 7. That apart, the rights of a citizen or an individual may be available under a particular statute or under the Rules framed therein. These statutes and Rules framed by the State or its authorities are, therefore, amenable and enforceable as against the State. A writ would, therefore, lie against the authority as defined under Article 12 of the Constitution of India or other authorities therein. 8. In the case of Anandi Mukta Sadguru Shree Mukherjee Vandas Swami Suvarna Jayanti Mahotsava Smarak Trust and Ors. vs. V.R. Rudani & Ors. (supra), the Apex Court has held that any private organization which is performing public functions and is bound by the Rules framed by the State, would also be amenable to writ jurisdiction. In the case of M/s. Zee Tele Films Ltd. And Another vs. Union of India and Ors. (supra), the Apex Court has also reiterated the same law. However, the question arises whether banking can be said to be a public function. Admittedly, banking is one of the commercial activities which may be performed by a statutory bank, nationalized bank, corporate bank formed under the Companies Act as well as by non-banking financial companies. Each of the above has a different constitution. They are governed by different provisions. While Banks formed under the statute are governed by the statute framed by the State and thus would fall within the definition of State and other authorities under Article 12, corporate Banks formed under the Companies Act or non-banking financial companies also formed under the Companies Act, would be governed by its Article of Association and they, therefore, have a separate Constitution altogether. Their share capital is also relevant as to who would be the controlling body. A private corporate bank may take decision which may not strictly be in conformity with the constitutional goals which a welfare State is required to achieve. There may be certain vested interests of each Bank. However, so far as the control of the Reserve Bank of India is concerned, the same is only limited to the extent that are guidelines controlling over all interests, method and manner of banking may be regulated. Merely because there is certain regulations from Reserve Bank of India, the concerned corporate Bank itself would not become an authority controlled by the Government or by the State and it will not have a statutory flavour. 9. Merely because there is certain regulations from Reserve Bank of India, the concerned corporate Bank itself would not become an authority controlled by the Government or by the State and it will not have a statutory flavour. 9. Thus viewed, the contention as raised by learned counsel for the petitioner would not hold water. In the case of Gopal Prasad Varshney vs. Bank of Rajasthan Ltd. (supra), the Full Bench of this Court has already taken a similar view as noticed above. The same is binding on this Court and accordingly, this Court refrains from entertaining this writ petition as against the HDFC which is a private corporate Bank. 10. The writ petition is accordingly dismissed as not maintainable.