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2021 DIGILAW 1156 (ALL)

Saurabh Kumar Pandey v. Reserve Bank of India

2021-10-01

SUNEET KUMAR

body2021
JUDGMENT : 1. Heard Sri Lavlesh Kumar Shukla, learned counsel for the petitioner and Sri Pranjal Mehrotra, learned counsel appearing for the respondents. 2. Petitioner, by means of the instant petition, is assailing the order dated 31 March 2021, passed by second respondent, Senior Group Manager, Employee Relations, IndusInd Bank Limited, Corporate Office Human Resources Department, Mumbai, [“Bank”], terminating the services of the petitioner. 3. Learned counsel appearing for the respondents, at the outset, submits that the writ petition against an employer, a private bank, would not be maintainable. It is urged that service contract of a private bank employee cannot be enforced in writ jurisdiction. 4. Facts, briefly stated, is that petitioner was appointed Associate Service Delivery Manager, a Class-III post, on 29 October 2018 by the respondent Bank. On a complaint filed by a customer, a disciplinary enquiry came to be instituted against the petitioner by issuing a charge sheet on 01.02.2021. Petitioner responded by filing written statement/defence to the fourth respondent, enquiry officer/Branch Manager; IndusInd Bank Limited, Branch Robertsganj, District Sonbhadra. The inquiry officer, on completion of the enquiry, forwarded the enquiry report. Petitioner came to be terminated by the impugned order. The enquiry was initiated against the petitioner for breach of Discipline and Appeal Rules and Code of Conduct, as applicable to the employees of the Bank. It is noted in the impugned order that petitioner has a remedy of appeal before Zonal H.R. Partner, New Delhi. The appeal was to be made within 30 days of receipt of the order. 5. It is urged by learned counsel for the petitioner that Bank is ‘State’ within the meaning of Article 12 of the Constitution of India; it is performing public duty; Bank, though private, is amenable to writ jurisdiction under Article 226, falling within the expression ‘other authorities’; petitioner was not granted opportunity of hearing; the impugned order is arbitrary and has been passed without following principles of natural justice. Reliance has been placed on the decisions rendered in M/s Pearson Drums & Barrels Pvt. Ltd. Vs. The General Manager, Consumer Education Cell of Reserve Bank of India and others, [WPA No. 21710 of 2017, decided on 10.03.2021] and Roychan Abraham Vs. State of U.P. and others, 2019 (3) ADJ 391 (FB). 6. Reliance has been placed on the decisions rendered in M/s Pearson Drums & Barrels Pvt. Ltd. Vs. The General Manager, Consumer Education Cell of Reserve Bank of India and others, [WPA No. 21710 of 2017, decided on 10.03.2021] and Roychan Abraham Vs. State of U.P. and others, 2019 (3) ADJ 391 (FB). 6. It is not disputed by the learned counsel for the petitioner that respondent-bank is a private sector bank duly incorporated and having licence under Banking Regulation Act, 1949, [for short “Act, 1949”]. Reserve Bank of India, [for short “RBI”] is entrusted with the full responsibility for supervising and regulating the banks, including, private banks. Under Section 22 of the Act, 1949, private banks are required to obtain licence from RBI to carry out the banking business in India. On specific query, learned counsel for petitioner is unable to show that service conditions of the petitioner is governed under any statutory Rules applicable to the employees of a private bank. 7. The private banks would be amenable to the writ jurisdiction for breach of any of the statutory provision under which it is incorporated or bound to be governed, but the services of the employee of a private bank is contractual and governed as per the Rules framed by the Bank/ employer. In the instant case, petitioner is governed by Discipline and Appeal Rules, and the Code of Conduct, as applicable on the employees of the Bank. 8. Whether a private company engaged in banking business performs public function, in other words, does banking business as a scheduled bank involve public law element was considered by the Supreme Court in Federal Bank Ltd. Vs. Sagar Thomas and others, (2003) 10 SCC 733 , the Court held that a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or company carrying on any statutory or public function. 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. The statutory provisions governing a private bank is merely regulatory. To put it differently a company engaged in banking business is not required to perform public function, nor essential governmental function is placed upon it. 9. Supreme Court in Janet Jeyapaul Vs. The statutory provisions governing a private bank is merely regulatory. To put it differently a company engaged in banking business is not required to perform public function, nor essential governmental function is placed upon it. 9. Supreme Court in Janet Jeyapaul Vs. SRM University and others, (2015) 16 SCC 530 , quoted with approval the following extract from the decision of the English court in R. v. Panel on Takeovers and Mergers, ex parte Datafin Plc and another (Norton Opax Plc and another intervening, (1987) 1 All ER 564): "In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body's powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body's decisions......." 10. In Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R. Rudani and others, (1989) 2 SCC 691 the question before the Supreme Court was as to whether mandamus can be issued at the instance of an employee (teacher) against a Trust registered under Bombay Public Trust Act, 1950, which was running educational institutions. The main legal objection of the Trust while opposing the writ petition of their employee was that since the Trust is not a statutory body, hence, it cannot be subject of writ jurisdiction of the High Court. 11. The Supreme Court on the question of maintainability of the writ petition for writ of mandamus as against the management of the college held as under: "15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied." 12. The issue as to whether a private body, though not 'State' within the meaning of Article 12 of the Constitution, would be amenable to the writ jurisdiction of the High Court under Article 226 was examined by the Constitution Bench in Zee Telefilms Ltd. and another Vs. The issue as to whether a private body, though not 'State' within the meaning of Article 12 of the Constitution, would be amenable to the writ jurisdiction of the High Court under Article 226 was examined by the Constitution Bench in Zee Telefilms Ltd. and another Vs. Union of India and others, (2005) 4 SCC 649 . The question that fell for consideration was whether Board of Control for Cricket in India, [“BCCI”] falls within the definition of 'State'. The ratio laid down in Anandi Mukta was approved, but on the facts of the case, Supreme Court, by majority held that BCCI does not fall within the purview of the term 'State' but clarified that when a private body exercises public function 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. Para 31 of Zee Telefilm reads thus: "31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions …. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.” 13. In State of U.P. and another Vs. Johri Mal, 2004 (4) SCC 714 , the Supreme Court held that for a public law remedy enforceable under Article 226, the action of a person or the authority need to fall in the realm of public law. The question is required to be determined in each case. "The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. The question is required to be determined in each case. "The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law -be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having regard to the nature of and extent of authority vested in the State." 14. The private bank, as held in Federal Bank Ltd. (supra) is not imparting public duty. Even if it is assumed that a private bank is imparting public duty, the act complained of must have direct nexus with the discharge of public duty. It is undisputedly a public law action which confers a right upon the aggrieved to invoke extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through petition under Article 226. Wherever Courts have intervened in exercise of jurisdiction under Article 226, either the service conditions were regulated by statutory provisions or the employer had the status of 'State' within the expansive definition under Article 12 or it was found that the action complained of has public law element. 15. On specific query, learned counsel for the petitioner does not dispute that the conditions of service governing the petitioner are not statutory. The terms and conditions of employment are purely contractual governed under rules framed by the Bank. 16. In view thereof, the preliminary objection raised by learned Counsel for the respondent that the writ petition against the impugned termination order would not lie within the domain of writ jurisdiction under Article 226 of the Constitution of India is sustained and upheld. 17. The writ petition is, accordingly, dismissed, being not maintainable. 18. Dismissal of the writ petition, however, shall not preclude the petitioner to take remedy against the impugned order before the appropriate authority/forum, if so advised, in accordance with law. 19. No Cost.