Icici Bank Limited Rep. By Its Sr...........

s Lakshminarayanan on 4 January, 2008

Madras High Court

Icici Bank Limited Rep. By Its Sr.......s Lakshminarayanan on 4 January, 2008
Author: S Mukhopadhaya
Bench: S Mukhopadhaya, M Venugopal
JUDGMENT S.J. Mukhopadhaya, J.

1. The respondent-Writ Petitioner, who was allowed voluntary retirement with effect from 1.2.1992
from the services of the appellant-Bank of Madura Limited (hereinafter referred to as 'the Bank') on
his request, preferred Writ Petition No.7744 of 2000, for direction to the appellant-Bank to pay
pension. The prayer in the said Writ Petition, having been allowed by the learned single Judge, the
present Writ Appeal has been preferred by the appellant-Bank.

2. It is seen that with effect from 10.3.2001, the Bank of Madura Limited merged with ICICI Bank
Limited; subsequently, by virtue of the Order of the Reserve Bank of India, dated 26.2.2002, the
Bank of Madura Limited was changed as ICICI Bank Limited; accordingly, the name of the appellant
in the cause title in the Memorandum of the Grounds of Writ Appeal was accepted by as ICICI Bank
Limited as per the Order of the Court dated 18.7.2002 in W.A.M.P.No.3581 of 2002 in
W.A.S.R.No.52118 of 2002.

3. The questions involved in this Writ Appeal for determination are:

(i) Whether a Writ Petition is maintainable against a private Bank? and

(ii) Whether the respondent-Writ Petitioner was eligible for pension as per the Bank of Madura
Employees' Pension Regulations (for short, "Pension Regulations") ?

4. Relevant facts of the case are that the Bank floated "Voluntary Retirement Scheme" (for short,
'VRS'), vide Circular No. CO:STF:10:91-92, dated 21.5.1991, pursuant to which, the respondent-Writ
Petitioner applied for Voluntary Retirement on 2.11.1991; his application seeking for VRS having
been considered by the Bank, he was allowed to voluntarily retire and relieved with effect from
1.2.1992 by the letter of the Bank, contained in Ref.No.2310, dated 1.2.1992. Another VRS was
floated by the Bank by Circular No.CO:STF:39:94-95, dated 21.7.1994; thereafter, the
respondent-Writ Petitioner applied for "pension" under the Bank's Pension Scheme, on which no
action was taken by the Bank.

5. Learned Counsel appearing for the appellant-Bank relied on different decisions of the Supreme
Court in support of his plea that a Writ Petition against a "private Bank" is not maintainable. He also
placed reliance on the relevant Pension Regulations, namely "Bank of Madura Employees' Pension
Regulations" (in lieu of earlier Regulations of January 1995) in support of the stand of the Bank that
the respondent-Writ Petitioner was not even eligible for pension in terms of the said Pension
Regulations.

6. On the other hand, according to the learned Counsel for the respondent-Writ Petitioner, the Bank
cannot deny pension to its 'retired employees' and no discrimination can be made between "retired

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employees" and 'voluntarily retired employees'.

7. We have heard learned Counsel appearing for the parties and noticed the judgments referred by
one or other counsel, as also the relevant provisions of the said Pension Regulations.

8. Learned Counsel appearing for the respondent-Writ Petitioner relied on the decision of the
Supreme Court (D.S. Nakara v. Union of India), wherein the Supreme Court 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. Reliance
was also placed on the said judgment (Nakara's case) to suggest that the payment of pension is a
welfare measure, wherein the retiral benefits is allowed on considerations of State's obligation to its
citizens, for having rendered service during the useful span of life. The reasons underlining the grant
of pension as laid down in the said case, was also referred to.

9. Learned Counsel appearing for the respondent-Writ Petitioner, while submitting that payment of
pension is a "public function", amounting to "public duty", relied on the decision of the Supreme
Court (Andi Mukta S.M.V.S.S.J.M.S. Trust v. V.R. Rudani). In that case, the Supreme Court
determined the question as to when a "Writ of Mandamus" can be issued and whether it can be
issued on a 'private body'. The Supreme Court, having noticed the word "any person or authority"
used in Article 226 of the Constitution, held that a "Writ" be not confined only to statutory
authorities and instrumentalities of the State, but they may also cover any other person or body
performing public duties. The form of the body concerned is not very much relevant. What is
relevant is the nature of duty imposed on the body. Writ of Mandamus can be issued against a
person or body to carry out the duties placed on them by the statutes, even though they are not
public officials or statutory bodies.

10. In the above conteXt, reference was made to the decision of the Supreme Court (Zee Telefilms
Ltd. v. Union of India). That was a case in which the Supreme Court, while deciding the question
whether the Board of Control for Cricket in India (for short, 'the BCCI') is a State, noticed the tests
laid down by the Supreme Court (Pradeep Kumar Biswas v. Indian Institute of Chemical Biology)
and came to the conclusion that the BCCI is not shown to be "functionally" or "administratively
dominated" by or is under the control of the Government. It held that the e Xercise by the Board did
not pervade it, merely it is regulatory in nature and thus held that the BCCI is not "State" for the
purpose of Article 12 of the Constitution of India. However, taking into consideration the fact that
the BCCI discharges certain duties like the selection of an Indian Cricket team, controlling the
activities of the players and others involved in the game of Cricket, the Supreme Court held that
these activities can be said to be akin to public duties or State's functions and if there is violation of
any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not
have a relief by way of petition under Article 32 of the Constitution, but such 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 of India.
11. With regard to the maintainability of the Writ Petition against a private party, reliance was also
placed on the decision of the Supreme Court reported in 2005 (6) SCC 657 (Binny Ltd. v.
Sadasivan), wherein similar view was taken that the word "any person or authority" used in Article
226 of the Constitution of India be not confined only to statutory authorities and instrumentalities
of the State, but they may also cover any other person or body performing the public duties. The
Supreme Court further held that a Writ of Mandamus or a remedy under Article 226 of the
Constitution of India, is pre-eminently a "public law remedy" and is not generally available as a
remedy against private wrongs. The Supreme Court in that case (Binny Ltd's case-supra) made the
following observations:

29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently 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.
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. According to Halsbury's Laws of England,
3rd Edn., Vol.30, p.682, 1317. A public authority is a body, not necessarily a county council,
municipal corporation or other local authority, which has public or statutory duties to perform and
which perform those duties and carries out its transactions for the benefit of the public and not for
private profit.

There cannot be any general definition of public authority or public action. The facts of each case
decide the point.

12. Reliance was also placed on the decision of a Division Bench of this Court reported in 1999 (3)
L.L.N. 310 (A.K. Ansari v. Bharat Overseas Bank Ltd.), wherein this Court held that the right 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 this Court allowed the
pensionary benefits in favour of a retired employee of the Bharat Overseas Bank Limited.

13. We have also noticed the other decisions of the Supreme Court as referred to by the learned
Counsel appearing for the appellant-Bank.

14. A co-operative Society, whether amenable to Writ jurisdiction or not, fell for consideration
before a Full Bench of this Court (K. Marappan v. The Deputy Registrar of Co-operative Societies,
Namakkal and Anr.). In that decision, what are all the circumstances in which a Writ will lie against
a Co-operative Society, have been laid down, and this Court held that a Co-operative Society is not a
'State' under Article 12 of the Constitution of India.

15. The question whether a "Writ" can be issued on a private Company, which is not a statutory or
having any public duty or responsibility imposed by "statute", fell for consideration before the
Supreme Court in the decision (Praga Tools Corpn. v. 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 appertains 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 the duties placed on them by the statutes authorising 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).

7. The company being a non-statutory body and one incorporated under the Companies Act there
was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement
could be sought by means of a mandamus, nor was there in its workmen any corresponding legal
right for enforcement of any such statutory or public duty. The High Court, therefore, was right in
holding that no writ petition for a mandamus or an order in the nature of mandamus could lie
against the company.

9. In our view once the writ petition was held to be misconceived on the ground that it could not
lie against a company which was neither a statutory company nor one having public duties or
responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an
impugned agreement between it and its employees could be granted. The High Court in these
circumstances ought to have left the workmen to resort to the remedy available to them under the
Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to the
High Court was therefore to dismiss it. No such declaration against a company registered under the
Companies Act and not set up under any statute or having any public duties and responsibilities to
perform under such a statute could be issued in writ proceedings in respect of an agreement which
was essentially of a private character between it and its workmen. The High Court, therefore, was in
error in granting the said declaration.

16. Similar question relating to maintainable of a 'Writ' under Article 226 of the Constitution of
India, was considered by the Supreme Court in (Federal Bank Ltd. v. Sagar Thomas). In the said
case, the Supreme Court observed that a Writ Petition under Article 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 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. However, the Supreme Court, on appeal preferred by the Federal Bank
Ltd., reversed such finding with the following observation:

18. From the decisions referred to above, the position that emerges is that 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 public duty or positive obligation of public nature; and (viii) a
person or a body under liability to discharge any function under any statute, to compel it to perform
such a statutory function.

27. Such private companies would normally not be amenable to the writ jurisdiction under Article
226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or
persons as there may be statutes which need to be complied with by all concerned including the
private companies. For eXample, there are certain legislations like the Industrial Disputes Act, the
Minimum Wages Act, the Factories Act or for maintaining proper environment, say the Air
(Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution)
Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily
upon such private bodies which they are bound to comply with. If they violate such a statutory
provision a writ would certainly be issued for compliance with those provisions. For instance, if a
private employer dispenses with the service of its employee in violation of the provisions contained
under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued
the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ
may arise where there may not be any non-compliance with or violation of any statutory provision
by the private body. In that event a writ may not be issued at all. Other remedies, as may be
available, may have to be resorted to."

32. Merely because Reserve Bank of India lays the banking policy in the interest of the banking
system or in the interest of monetary stability or sound economic growth having due regard to the
interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does
not mean that the private companies carrying on the business or commercial activity of banking,
discharge any public function or public duty. These are all regulatory measures applicable to those
carrying on commercial activity in banking and these companies are to act according to these
provisions failing which certain consequences follow as indicated in the Act itself. As to the
provision regarding acquisition of a banking company by the Government, it may be pointed out
that any private property can be acquired by the Government in public interest. It is now a judicially
accepted norm that private interest has to give way to the public interest. If a private property is
acquired in public interest it does not mean that the party whose property is acquired is performing
or discharging any function or duty of public character though it would be so for the acquiring
authority.

33. For the discussion held above, in our view, a private company carrying on banking business as a
scheduled bank, cannot be termed as an 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 don't 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 Article 226 of the Constitution. Present is a case of
disciplinary action being taken against its employee by the appellant Bank. The respondent's service
with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing
a writ petition under Article 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.

17. In the present case also, as the appellant-Bank of Madura Ltd., is a private Company, carrying on
private banking business and not carrying on any statutory or public duty, no "Writ Petition" under
Article 226 of the Constitution of India is maintainable against the appellant-Bank of Madura Ltd.
Merely because the Bank has made provisions to grant "pension" on VRS, under the relevant
Pension Scheme, the same cannot be a ground to hold that the Bank is performing a public duty or
public function. Hence, the first question is answered in the negative against the respondent-Writ
Petitioner and in favour of the appellant-Bank of Madura Ltd. (now ICICI Bank Ltd.)

18. So far as the second question relating to the eligibility of the respondent-Writ Petitioner to claim
"Pension" under the Pension Regulations, is concerned, we also accept the submission as made by
the learned Counsel appearing for the appellant-Bank.

19. Regulation 2(w) of the Pension Regulations defines "retirement" and Clause (b) of Regulation
2(w) deals with the "Voluntary Retirement" in accordance with Regulation 29, while Clause (d) of
Regulation 2(w) related to VRS in terms of and subject to the provisions contained in Regulation
2(ze) and Regulation 35 and the same are quoted hereunder:

Regulation 2(w): "Retirement" means cessation from Bank's service,-

a) on attaining the age of superannuation specified in Service Rules or Settlements;

b) on voluntary retirement in accordance with provisions contained in regulation 29 of these

regulations;

c) on premature retirement by the Bank before attaining the age of superannuation specified in
Service Rules or Settlement;

d) on VRS in terms of and subject to provisions contained in Regulation 2(ze) and Regulation 35;

20. Regulation 2(ze) of the Pension Regulations, defines "VRS", which is based on the 1994 Pension
Scheme, as is evident from the said provision and reflected below:
Regulation 2(ze): 'V.R.S' means Bank of Madura Employees' Voluntary Retirement Scheme enclosed
to the circular CO.STF:39/94-95 dated July 21, 1994, or any other specific scheme that may be
implemented in future bringing such scheme under the definition of this regulation. The employees
who have completed 20 years of service in the bank and who have retired subsequent to the eXpiry
of the scheme mentioned in the Circular CO:GM:CIR:2/93-94 dated May 20, 1993, and who were
eXtended the additional benefits in addition to the normal retirement benefits shall be deemed and
considered to have retired under V.R.S.

21. So far as the applicability of Regulations to the case of the appellant-Bank, is concerned, "as to
whom" it will apply, has been provided under Chapter II, Regulation 3 of the Pension Regulations of
the appellant-Bank; while under Clause (1)(a) of Regulation 3, the Regulations apply to employees
who were in the services of the appellant-Bank on or after 1st January, 1986, but retired before 1st
November, 1993, Clause (2)(a) of Regulation 3 relates to employees who retired on or after 1st
November, 1983 and the rest of the Clauses relate to those who were in the services of the
appellant-Bank before the notified date or those who joined the appellant-Bank on or after the
notified date.

22. Clause (9) of Regulation 3 of the Pension Regulations relates to employees retired under "VRS",
which reads as under:

Regulation 3(9):

(a) Retired under VRS as defined in Regulation 2(ze);

(b) eXercise an option in writing within the stipulated time as contained in Regulation 35 to become
member of the Fund and

(c) refund within thirty days from the date of superannuation the entire amount of the Bank's
contribution to the Provident Fund and interest accrued thereon together with a further simple
interest at the rate of siX percent per annum from the date of settlement of the Provident Fund
Account till the date of refund of the aforesaid amount to the Bank as contained in Regulation 35.

23. Under Chapter V relating to "Classes of Pension" in the Pension Regulations, while Regulation
29 deals with the "Pension of Voluntary Retirement", Regulation 35 relates to 'Pension to Employees
retiring under VRS. Those provisions being relevant, are quoted hereunder:

Regulation 29: Pension on Voluntary Retirement:

(1) on or after the 1st day of November, 1993, at any time after an employee has completed twenty
years of qualifying service he may, by giving notice of not less than three months in writing to the
Appointing Authority retire from service."

Regulation 35 : Pension to Employees retiring under VRS:

(i) An employee who has opted for pension and who retired under VRS enumerated in Regulation
2(ze) of these regulations and who has completed twenty years of service in the bank shall be eligible
for pension from the date of his attaining the age of superannuation i.e. the date on which he would
have retired had he continued in the employment if he is otherwise eligible under these regulations.

24. Admittedly, the respondent-Writ Petitioner voluntarily retired on 1.2.1992 pursuant to VRS
Scheme of 1991 under Circular No.CO:STF:10:91-92, dated 21.5.1991. He has not retired pursuant to
the subsequent VRS Scheme of 1994 in Circular No.CO:STF:39:94-95, dated 21.7.1994. Therefore,
he is not covered by Regulation 2(ze) of the Pension Regulations, which applies to VRS employees
retired pursuant to 1994 Scheme.

25. Regulation 29 of the Pension Regulations relates to "Pension on "Voluntarily Retirement" of

those who retired on or after 1.11.1993. The respondent-Writ Petitioner having been retired on
1.2.1992 pursuant to his notice to the appellant-Bank, dated 2.11.1991, and hence, he is also not
covered under Regulation 29, and thereby, he does not also come within the definition of
"Retirement" under Regulation 2(w)(b) of the Pension Regulations. Similarly, as Regulation 35 of
the Pension Regulations is covered for the employees retiring under the VRS enumerated under
Regulation 2(ze), the respondent-Writ Petitioner cannot even claim the benefit prescribed under
Regulation 35, nor he falls within the meaning of 'Retirement' under Regulation 2(w)(d) of the
Pension Regulations.

26. In view of the aforesaid findings, we answer the second question also in the negative, i.e. against
the respondent-Writ Petitioner-employee and in favour of the appellant-Bank.

27. As the learned single Judge has failed to notice the aforesaid provisions of law in proper
perspective and wrongly appreciated the findings of the Supreme Court, some of which have been
referred to in this judgment, we have no other option e Xcept to set aside the impugned order dated
16.4.2002 in W.P.No.7744 of 2000.

28. In the result, the Writ Appeal is allowed. But in the facts and circumstances, there shall be no
order as to costs.