Madras High Court
O.P.Mishra vs Bharat Overseas Bank Ltd on 19 April, 2011
Author: D.Murugesan
Bench: D.Murugesan, K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.04.2011 CORAM THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN W.A.Nos.841 and 842 of 2009 O.P.Mishra .. Appellant in both W.As. Vs 1. Bharat Overseas Bank Ltd., Habeeb Towers, 765, Anna Salai, Chennai, rep. By its Chief Manager. 2. The Chairman, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai. .. Respondents in both W.As. Writ Appeals against the common order of this Court dated 29.01.2009 made in W.P.Nos.28833 and 28834 of 2003. For Appellant : Mr.Balan Haridas For Respondents : Mr.V.Karthick for R-1 * * * * * J U D G M E N T
D.MURUGESAN, J.
These writ appeals are directed against the common order dated 29.01.2009 dismissing the writ petitions filed by the appellant herein.
2.The appellant, while he was working as Branch Manager of the Bharat Overseas Bank Limited at Chandigarh, was selected vide letter dated 10.12.1993 for the post of Manager Administration and Accounts at the Bangkok branch. He was relieved and transferred to Bangkok branch vide letter dated 29.01.1994. After a spell of three years service, he was relieved from Bangkok and transferred to Fort Branch, Mumbai, vide letter dated 09.04.1997. He was advised to attend a Managers' Conference at Chennai on 26th and 27th April, 1997. He attended the said conference and thereafter, he submitted his resignation vide his letter dated 2nd May, 1997. However, his request for resignation was not accepted by the first respondent-bank and the same was rejected vide letter dated 08.05.1997. On the ground that he has submitted his resignation, he did not report duty from 02.05.1997, viz., the date on which he submitted his resignation.
3.Therefore, the respondent bank in letter dated 15.05.1997 sent a show cause notice calling for explanation from the appellant on the ground that by his unauthorised absence, he violated Rule 16 of the Bharat Overseas Bank Ltd. Officers Conduct, Discipline and Appeal Rules, 1990. Not satisfied with the explanation offered by the appellant, the first respondent-bank levelled three charges against the appellant in their communication dated 14.06.1997. The appellant did not participate in the enquiry proceedings and ultimately, by order dated 02.01.1998, imposed the punishment of penalty of reduction in pay scale from scale III to scale II and fixing the basic pay at Rs.8280/- with immediate effect. It was against both the orders refusing to accept the resignation as well as the imposition of punishment, the appellant filed two writ petitions, which were dismissed by the common order dated 29.01.2009 on the ground that they are not maintainable.
4.We have heard Mr.Balan Haridas, learned counsel appearing for the appellant and Mr.V.Karthick, learned counsel appearing for the first respondent.
5.According to Mr.Balan Haridas, learned counsel for the appellant, the learned Judge ought not to have dismissed the writ petitions on the ground that they are not maintainable. The learned counsel would rely upon the Division Bench judgment of this Court reported in 2010 (2) LLN 260 (Indian Overseas Bank, rep. By General Manager, Personnel, Administration Department v. K.C.Kumar. According to the learned counsel, Bharat Overseas Bank Limited was amalgamated with Indian Overseas Bank and the same was notified on 12.03.2007. In terms of clause 14 of Bharat Overseas Bank (Transfer of undertaking to Indian Overseas Bank) Scheme, 2007, all proceedings of whatsoever nature by or against the Transferor Banking Company pending before the effective date shall be continued and be enforced against the Transferee Bank as effectively as if the same had been filed by or pending against the Transferree Bank. In view of the said clause, the proceedings which were pending on the date when the amalgamation was notified, shall inure to the benefit of the appellant in regard to the pending writ petitions as well. The learned counsel would also submit that since the writ petitions were dismissed on the ground of maintainability, the challenge to both the orders was not considered on merits. The learned counsel, therefore, advanced his arguments on the merits as well.
6.On the other hand, Mr.V.Karthick, learned counsel appearing for the first respondent would submit that the judgment relied upon by the learned counsel for the appellant was not rendered on a detailed discussion of the issue as to whether the writ petition is maintainable against a private limited banking company registered under the Companies Act. Further, the said judgment had not taken note of the judgments of the Apex Court holding that no writ is maintainable against the private limited banking company. In support of the above, the learned counsel would rely upon the judgment of the Apex Court reported in (2003) 10 SCC 733, Federal Bank Limited vs. Sagar Thomas and (2005) 6 SCC 657, Binny Mill v. B.Sadasivan and Others. The learned counsel for the first respondent-bank also argued on merits in support of both the orders that were passed against the appellant.
7.We have considered the above submissions of the learned counsel on either side. While considering the question whether a mandamus can be issued against a private company, the Apex Court in Praga Tools Corporation v. C.V.Imanual, A.I.R. 1969 SC 1306, observed as follows:-
" ... 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 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."
On a similar issue whether a writ would lie against the co-operative society, the Apex Court in General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP vs. Satrughan Nishad and Ors. (2003) 8 SCC 639, wherein the appellant being a co-operative society engaged in the manufacture of sugar challenged the maintainability of the writ petitions filed by the workers contending that they had to be treated as permanent workmen, applying the principles enunciated in VST Industries' case [(2001) 1 SCC 298], held that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution as the mill was engaged in the manufacture and sale of sugar which would not involve any public function.
8.In Federal Bank Limited vs. Sagar Thomas, [(2003) 10 SCC 733], referred supra, the Apex Court in paragraphs 24 and 27 observed as follows:-
" 24.From the decisions referred to above, the position thatemerges 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
(viii)a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function.
......
47. 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 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 dont 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 puts 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. Respondents 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.
In (2005) 6 SCC 657, Binny Ltd. vs. V.Sadasivan and Others, the Apex Court held as follows:-
" 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 the 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.
From the above judgments, it has to be held that the writ against the Bharat Overseas Bank Limited is not maintainable.
9.The Division Bench judgment in 2010 (2) LLN 260, relied upon by the learned counsel for the appellant, holding that the writ petition is maintainable against the Bharat Overseas Bank Limited which was subsequently amalgamated with the Indian Overseas Bank was entirely on different set of facts. In that judgment, the Division Bench, having noticed that the disciplinary proceedings were pending and no final orders were passed on such disciplinary proceedings, applied Clause (iii) of Regulation 13 of the Bharat Overseas Bank Officers Service Regulations. In fact, in paragraph 20, the Division Bench has observed as follows:-
"20.It is submitted on behalf of the appellants that the writ petition itself is not maintainable as at the time of filing of the writ petition, the management was under the control of Bharat Overseas Bank which was a private entity and in the absence of any public duty on their part, the respondent herein cannot maintain the writ petition. It is further contended that as per Bharat Overseas Bank Service Regulations-13(ii), an officer against whom disciplinary proceedings are pending, shall not resign from his officer against whom disciplinary proceedings are pending, shall not resign from his service in the Bank without the prior approval in writing of the Chairman and sub-clause (iii) of Regulation 13 states that for the purpose of this rule, disciplinary proceedings shall be treated as pending against an Officer until final orders are passed on them. Admittedly, no orders have been passed by the management on the resignation letter submitted by the respondent and therefore, it cannot be construed that the petitioner was relieved from service so as to get the Provident Fund and Gratuity. It is also submitted on behalf of the appellants that with regard to his desertion of duty, charge memo was issued on 27.6.2006 and in respect of irregularity in operation of accounts relating to M/s.Sun Animation Studio Private Limited and M/s.Trust Global, show cause notices were issued on 1.7.2006 calling for his explanation. Therefore, in any event, pendency of the disciplinary proceedings and the show cause notices, it cannot be presumed that the petitioner is deemed to have resigned the post. Explanation to Regulation 13 reads that "A show cause notice or order of suspension or charge sheet signed by the Chairman and put on a course of transmission prior to or during the period of notice will be sufficient compliance with the requirements of clause (iii). The said Regulation was amended by means of Board Resolution dated 30.11.2000, wherein it has been provided that in the case of Scale IV Officers, instead of Chairman, General Manager became the disciplinary authority and the Chairman became the Appellate Authority. Since the General Manager has issued a charge memo on 27.6.2006 within three months of the notice period, the resignation does not take into effect and consequently the settlement of terminal benefits does not arise for consideration. It is the further submission on behalf of the appellants that the writ petition as framed is not maintainable and therefore, prayed for the setting aside of the impugned orders passed in the writ petition."
10.In the present case, the factual scenario is entirely different. Both the orders questioned in the writ petitions were issued much prior to the amalgamation. The request of the appellant for resignation was not accepted by the respondent-bank and the same was communicated as early as on 08.05.1997. The disciplinary proceedings also ended with the imposition of punishment by order dated 2.1.1998. The appellant has questioned both the above orders by filing two separate writ petitions in the year 2003. The amalgamation of Bharat Overseas Bank Limited with the Indian Overseas Bank was notified on 12.03.2007. On the date of notification, the disciplinary proceedings have come to an end and in fact, the writ petitions were pending. In these circumstances, clause 14 can be referred to. The said clause reads as follows:-
"On and from the Effective Date, all suits, actions and proceedings of whatsoever nature by or against the Transferor Banking Company pending and/or arising on or before the Effective Date shall be continued and be enforced by or against the Transferee Bank as effectively as if the same had been filed by, pending and/or arising against the Transferee Bank".
11.Of course, by that clause, on the effective date, all suits, actions and proceedings of whatsoever nature by or against the Transferor banking company pending before the effective date shall be continued as if the same had been filed pending against the Transferee company. In our opinion, this clause would be applicable only in respect of suits, actions and proceedings which are pending by or against the Bharat Overseas Bank Limited which could have been legally instituted. The said clause cannot be made applicable to a case where on the date of filing of the writ petition, such a writ petition could not have been entertained as it was not maintainable. If the said clause is read in the way in which Mr.Balan Haridas, learned counsel for the appellant, has wanted us to read, then it would amount to conferring a power as to the maintainability of a writ petition which was otherwise is not maintainable. Only such of those proceedings which can legally be sustained on the date of institution and are pending on the effective date, could be pursued/continued after the amalgamation and not otherwise. As, on the date when the writ petitions were filed, they were not maintainable in view of the judgments of the Apex Court which we have referred above, the contention that the writ petitions are maintainable cannot be accepted. In view of our above finding, we are not considering the arguments advanced on either side on merits.
12.Accordingly, both the writ appeals are dismissed on the ground that the writ petitions are not maintainable on the given set of facts. No costs.
sra ==================================================================== After the judgment was pronounced, Mr.Balan Haridas, learned counsel appearing for the appellant has submitted that now that the writ petitions are held to be not maintainable and consequently the writ appeals are dismissed, the dismissal of the writ petitions and the writ appeals shall not stand in the way of the appellant to avail the alternative remedy, if he is so advised.
2.We have heard Mr.Raveendran, learned counsel representing the first respondent on the above submission.
3.As we have dismissed the writ petitions and consequently, the writ appeals on the ground of maintainability, the period of pendency of the writ petitions and the writ appeals shall be excluded in case the appellant avails the alternative remedy.
sra