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2025 DIGILAW 287 (RAJ)

Romesh Bhandari v. Axis Bank Limited

2025-02-11

DINESH MEHTA

body2025
Order : 1. The petitioner has approached this Court invoking its writ jurisdiction of this Court under Article 226 of the Constitution of India and assailed the order dated 30.12.2024, whereby he has been visited with an order of punishment of dismissal from services. Subsequent order dated 20.01.2025, whereby the appeal preferred against such order has been rejected by the respondent no.2 – Appellate Authority, Axis Bank Limited has also been challenged. 2. At the outset, the Court posed a question to Mr. Muktesh Maheshwari, learned counsel for the petitioner that how the writ petition laying challenge to the order of disciplinary authority or Appellate Authority of respondent-Bank (Axis Bank Limited), which is not a nationalized bank, is maintainable? To which, Mr. Maheshwari responded by submitting that the petitioner has been dismissed from service in violation of principles of natural justice and since his fundamental right under Article 16 of the Constitution of India has been infracted, he can maintain the writ petition. 3. Learned counsel further argued that since the petitioner has exhausted the remedy available under By-laws of the Bank, he has no other option but to approach this Court by invoking its writ jurisdiction under Article 226 of the Constitution of India. 4. Learned counsel submitted that in many a cases, civil courts have held that they would not sit as an Appellate Authority over the order(s) passed by the disciplinary authority and the Appellate Authority and, therefore, the writ petition be entertained. 5. Learned counsel further submitted that since the respondent–Bank is also discharging public functions, the present writ petition is maintainable in the light of the judgment of Hon’ble the Supreme Court rendered in the cases of Ramesh Ahluwalia vs. State of Punjab & Ors. , reported in (2012) 12 SCC 331 and Zee Telefilms Ltd. & Anr. vs. Union of India & Ors. reported in (2005) 4 SCC 649 . 6. Heard learned counsel for the petitioner. 7. It is not in dispute that the respondent – Bank is not a Nationalized Bank. Hence, barring exceptional cases, it cannot be treated to be a ‘State’ or ‘instrumentality of State’ within the meaning of Article 12 of the Constitution of India, more particularly when it comes to dispute relating to employer-employee relationship. 8. 7. It is not in dispute that the respondent – Bank is not a Nationalized Bank. Hence, barring exceptional cases, it cannot be treated to be a ‘State’ or ‘instrumentality of State’ within the meaning of Article 12 of the Constitution of India, more particularly when it comes to dispute relating to employer-employee relationship. 8. True it is, that in the cases of Zee Telefilms Ltd. (supra) and Ramesh Ahluwalia (supra), Hon’ble the Supreme Court has held that an instrumentality, which is discharging public functions is covered in the sweep of ‘State’ under Article 12 of the Constitution of India, but the first question to be considered is, as to whether the functions, which the respondent – Bank is discharging are public functions? 9. According to this Court, the respondent – Bank is accepting deposits, operating saving accounts and advancing loans, which can purely be defined as carrying of business or commercial activities and cannot be said to be public functions by any stretch of imagination. 10. A gainful reference of the judgment of Hon’ble the Supreme Court in the case of Federal Bank Ltd. vs. Sagar Thomas & Ors. , reported in (2003) 10 SCC 733 be made, wherein the Apex Court has observed thus: “There are a number of such companies carrying on the profession of banking. There is nothing which can be said to be close to the governmental functions. It is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs F as well as the profits. Any business or commercial activity, may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money are no doubt, are such which do have impact on the economy of the country in general. But such activities cannot be classified one falling G I in the category of discharging duties, functions of public nature. Thus the case does not fall in the fifth category of cases enumerated in the case of Ajay Hasia (supra). Again we find that the activity which is carried on by the appellant is not one which may have been earlier carried on by the government and transferred to the appellant company. For the sake of H 152 SUPREME COURT REPORTS [2003] SUPP. Again we find that the activity which is carried on by the appellant is not one which may have been earlier carried on by the government and transferred to the appellant company. For the sake of H 152 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R. A argument even if it may be assumed that one or the other test as provided in the case of Ajay Hasia (supra) may be attracted that by itself would not be sufficient to hold that it is an agency of the State or a company carrying on the functions of public nature.” 11. In cases of Zee Telefilms Ltd. (supra) so also Ramesh Ahluwalia (supra), the facts were starkly different, if compared with the facts of the present case. 12. In the case of Ramesh Ahluwalia’s (supra), it was observed by Hon’ble the Supreme Court that the respondents were performing public functions by way of providing education to children and the respondent – institution was held to be ‘State’ under Article 12 of the Constitution of India despite the fact that it was unaided private educational institution. Whereas, in the case of Zee Telefilms Ltd. (supra), it was held by Hon’ble the Supreme Court that merely because some element of public duty is involved in discharge of the Board’s function, that by itself would not suffice for bringing the Board within the net of ‘State’ under Article 12 of the Constitution of India. Per contra, in the present case, the respondent – Bank cannot be even said to have performed the public functions. 13. This Court is cognizant of legal position that no person can be rendered remediless, but in each case the writ petition cannot be entertained, as panacea for all ills. The petitioner or any citizen for that matter being aggrieved of any order can file a civil suit on the permissible grounds, including laying challenge to the order of dismissal from service passed by the disciplinary authority and the order of the Appellate Authority. 14. Section 9 of the Code of Civil Procedure, 1908 confers wide powers upon the civil courts to try and decide all civil suits unless they are expressly or impliedly barred by any statute. According to this Court, since the Banking Regulations do not bar a civil suit, the petitioner can very well file a civil suit alongwith the application for injunction, if so advised. 15. According to this Court, since the Banking Regulations do not bar a civil suit, the petitioner can very well file a civil suit alongwith the application for injunction, if so advised. 15. This Court is of the considered view that the present writ petition preferred under Article 226 of the Constitution of India or invocation of supervisory jurisdiction under Article 227 of the Constitution of India is not permissible, even if petitioner’s fundamental right to earn livelihood under Article 21 of the Constitution of India has been infracted. 16. So far as the argument of Mr. Maheshwari that civil courts have held that they will not sit as an Appellate Authority is concerned, such finding depends upon facts and circumstances of each case. If in a given case, civil court has held that it will not sit as an Appellate Authority, such decision per-se cannot make a writ petition maintainable. Because in any event, even the High Court can well say that it shall not sit as an Appellate Authority over the orders passed by the disciplinary authority and departmental appellate authority. 17. The writ petition filed against a private entity is, therefore, dismissed as not maintainable. 18. The petitioner shall, however, be free to file a civil suit before the competent court. In case, civil suit alongwith an application for temporary injunction is filed, the competent court shall consider the same in accordance with law, preferably at an early date given that the petitioner has been dismissed from the service. 19. It is, hereby, made clear that the discussion made hereinabove is only confined to maintainability of the writ petition. Any observation made hereinabove shall not affect or prejudice the decision and discretion of the civil court, as merit of petitioner’s case has not been examined. 20. Stay application also stands dismissed, accordingly.