Unknown vs The Additional Secretary on 12 November, 2024

[Cites 18, Cited by 0]

Madras High Court

Unknown vs The Additional Secretary on 12 November, 2024

https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 This writ petition is filed seeking mandamus to direct the respondents to recompute the pensionary benefits to the petitioners, who are all retired from service under the 2nd respondent management on the basis of average salary drawn by them for the last 10 months prior to their retirement and also direct the second respondent to pay arrears of pension.

2. The facts in brief in this writ petition are that the petitioners originally joined their service at the Bank of Madura at various positions on different dates. The Bank of Madura was amalgamated with ICICI Bank Limited, the 2nd respondent herein by the Scheme of amalgamation with effect from 10.03.2001. As per the said scheme, all the employees of Bank of Madura stood transferred to the service of ICICI Bank Limited however, all the service conditions of the employees of Bank of Madura are protected.

3. The employees of the Bank of Madura were provided with two retiral benefits in vogue namely the Contributory Provident Fund and Gratuity. During 1995, the Banking Industry had undergone a major change and the 3rd respondent negotiated with various trade unions of Banking Industry in respect of Pension Scheme. Accordingly, by virtue of Bi-partite 6/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 Industry level settlement, pension regulations were framed and implemented across the country in all Banks irrespective of membership with the 3rd respondent.

4. The erstwhile Bank of Madura although not a party to the Bi-partite settlement had adopted the pension scheme introduced at the Industry level with effect from 30.01.1996 without any change and the petitioners herein are all have opted to join the pension scheme at that time itself. The Bank of Madura Employees Pension Regulations 1995 was continued to be in operation until the petitioners retired from their service with the 2nd respondent.

5. The petitioners are being paid only for the service rendered for the erstwhile Bank of Madura prior to amalgamation and the services rendered with the 2nd respondent was not taken into account for calculating pension. With regard to payment of pension, the erstwhile Bank of Madura employees do not get the benefit of the service rendered in ICICI Bank Ltd. i.e., 10 months average pay drawn by them for the service rendered in ICICI bank prior to retirement from the ICICI Bank Ltd., 7/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019

6. However, the second respondent / ICICI Bank deducted money from salary towards the employees contribution for PF/Pension fund at the rate of 10% of ICICI basic salary. The second respondent is holding 10% of salary deducted from every month's salary of each of the pension optees including all the Writ Petitioners herein when they were in the service of ICICI Bank till their retirement. The petitioners were not paid the pension based on the last drawn salary with ICICI Bank. It is pertinent to mention that the erstwhile Bank of Madura Pension Regulation was continue to be in force even after the amalgamation with the second respondent. A corpus was created and was entrusted on the fourth respondent to maintain the same. 10% basic salary proportionate to the petitioners' salary drawn from ICICI Bank was deducted by the ICICI Bank till the date of retirement, and the same was not paid back by any means and it is available with the Bank till date. Aggrieved by the same, the petitioners filed this present writ petition.

7. It is the contention of the respondents that the erstwhile Bank of Madura Ltd. was never a party to any Industry Level Bipartite Settlement and hence the Industry Level Bipartite Settlement is not applicable. Further, the 1st respondent has no control over the service conditions of the 8/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 employees of the private sector banks like the 2 nd respondent and the 3rd respondent is only an unregistered voluntary Association of Public and Private sector banks and it has no legal status, it was neither incorporated under Central laws nor State laws. Therefore, the present writ petition is not maintainable and filed without any locus standi and hence sought for dismissal on the ground of maintainability.

8. During the course of hearing, the learned Senior Counsel appearing for the second respondent Bank has raised a preliminary objection with respect to the maintainability of the Writ Petition stating that the second respondent/ICICI Bank Limited is a Private Bank and it is not amenable to the Writ Jurisdiction.

9. In contra, the learned counsel for the petitioners contended that the issue in this Writ Petition was already considered by the Apex Court and this Court and held that it is amenable to the Writ Jurisdiction. To substantiate his arguments, he relied on the following judgments:

i) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others vs. V.R.Rudani and Others 9/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 reported in (1989) 2 Supreme Court Cases 691. The relevant portion of the said oder is extracted hereunder:

“20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.”

ii) Federal Bank Ltd. vs. Sagar Thomas and Others reported in (2003) 10 Supreme Court Cases 733, wherein the Hon'ble Apex Court has observed as under:

10/24

https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 “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.” 11/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019

iii) Ramakrishna Mission and Another vs. Kago Kunya and Others reported in (2019) 16 Supreme Court Cases 303. The relevant portion of the said oder is extracted hereunder:

“34. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K K Saksena vs. International Commission on Irrigation and Drainage this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed.

36. For the above reasons, we are of the view that the Division Bench of the High Court was not justified in coming to the conclusion that the appellants are amenable to the writ jurisdiction under Article 226 of the Constitution as an authority within the meaning of the Article. ”

10. The learned Senior Counsel for the second respondent in support of his contentions relied on the following judgments: 12/24

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i) Rajkumar vs. State of M.P. reported in (2004) 12 Supreme Court Cases 77

ii) B. Anitha vs. General Manager-HRD reported in SCC Online Mad 25525

iii) S.Sundaram and others vs. ICICI Bank, Ltd. and another reported in 2007 (3) L.L.N.509

iv) Nadar Mahajana Sangam, Madurai vs. Reserve Bank of India and others reported in 2006(1) CTC 776

v) ICICI Bank Limited, Corporate Office, Chennai Unit, vs. Lakshminarayanan reported in 2009 (1) CTC 22

vi) Chanda Deepak Kochhar vs. ICICI Bank Limited and Another reported in (2020) SCC Online Bom 374

vii) Chanda Deepak Kochhar vs. ICICI Bank Limited and Another reported in (2021) 14 Supreme Court Cases 643

viii) R. Geethanjali an Others vs. Deputy General Manager, Disciplinary Authority, Karur Vysya Bank Limited reported in 2021 SCC OnLine Mad 9469

ix) U. Sukumar Shetty vs. Deputy Commissioner for Hindu Religious and Charitable Endowments reported in 2018 SCC OnLine SC 1273 13/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019

x) A. Varadarajan vs. The Deputy Registrar, Co-operative Societies (Milk), Cuddalore and another reported in 1992-2-

L.W.109

xi) R. V. Natarajan vs. Union of India and others in W.P.No.7779 of 2017 etc. batch, dated 14.03.2024

xii) V. Karthikesan vs. ICICI Bank Limited in W.P.No.38804 of 2015, dated 31.01.2024

xiii) S.Sundaram and 2 others vs. ICICI Bank Limited rep. by its Chairman and Managing Director and another in W.A.No.480 of 2007 dated 09.02.2009.

xiv) R.Anand Kumar vs. M/s.Dhanalakshmi Bank, Rep. by its Authorized Officer in W.P.No.4040 of 2018 dated 18.04.2018.

11. Having heard the respective counsels, this Court intends to decide the issue of maintainability of this Writ Petition at the first instance and proceed further on merits, if this Court comes to the conclusion that this Writ Petition is maintainable.

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12. This Court carefully perused the judgments relied on by the learned counsel for the petitioners. In the considered opinion of this Court, the said judgments are not applicable to the facts of the present case.

13. On perusal of the judgments relied on by the learned Senior counsel for the second respondent, the Apex and this Court time and again declared that the Writ Petition by an employee working in a Private Bank seeking payment of pension is not maintainable.

14. In the judgment relied on by the learned Senior Counsel for the second respondent in ICICI Bank Limited vs. Lakshmi Narayanan [2009 (1) CTC 22], a Division Bench of this Court held as follows:

“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. Vs. Sagar Thomas and Others, . 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 15/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 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 16/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 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 17/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 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 u/s 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.

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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 19/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed.”

15. All the other judgments relied on by the learned Senior Counsel for the second respondent also on the same lines.

16. In the present case also, the petitioners worked in the Bank of Madura Ltd., which was ultimately merged with the ICICI Bank Limited and the issue raised in this Writ Petition is also against the Private Bank and as such, the Writ Petition is not maintainable.

17. Admittedly, the second respondent/ICICI Bank Limited is a Private Bank and it cannot be treated as Scheduled Bank as it is not carrying on any statutory or public duties. Considering the similar issue, this Court by order dated 14.03.2004 dismissed a batch of Writ Petitions in WP.No.7779 of 2017 etc., holding that the Writ Petition is not maintainable against the Private bank, which is not performing public duty or public function. The relevant paragraphs of the said order are extracted hereunder:

“16. Admittedly, the third respondent Bank is a private Bank, it cannot be treated as a scheduled Bank carrying on any statutory or public duty. In the present case, the issue 20/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 involved is with regard to claiming pension to the petitioners who retired from service under Voluntarily Retirement Scheme, prior to formulation of the pension scheme. Now the question is whether the writ petitions are maintainable against a private Bank and writ can be issued against the private Bank which has no statutory or any public duty imposed by statute.

17. The same question arises for consideration before the Hon'ble Apex Court and this Court on several occasions.

The finding of the Division Bench of this Court in ICICI Bank Ltd., is very apt to the present cases, wherein, it is held that 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. The ratio laid down as stated above is squarely applicable to the present cases. As such, in our considered view, these Writ Petitions are not maintainable and this Court cannot issue any writ against the third respondent.” 21/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019

18. Considering the ratio laid down in the judgments relied on by learned Senior counsel for the second respondent, which are squarely applicable to the present case, in my considered view, this Writ Petition is not maintainable. This Court Court cannot issue any Writ against the second respondent/ICICI Bank Limited.

19. In view of the above, this Writ Petition is dismissed on the ground of maintainability without going into the merits of the case. No costs.





                                                                                         12.11.2024

                    Speaking/Non-speaking order
                    Index     : Yes/No
                    Internet : Yes/No
                    pvs




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                                                                             W.P.No.11415 of 2019

                    To

                    1.      The Additional Secretary

Ministry of Finance and Corporate Affairs Banking & Insurance No.235, Jeevandee Buildings, Sansand Marg New Delhi 110 001.

2. The Managing Director, The Management of ICICI Bank Ltd.

Corporate Office, ICICI Towers Bandra Kurla Complex Bundra East, Mumbai -400 051.

3. The Chairman Indian Bank Association World Trade Centre, 6th Floor, Centre 1 Building, Cuffe parade, Mumbai – 400 005.

4. Board of Trustees ICICI Bank Limited Employees Pension Fund ICICI Bank Towers, Ambattur Estate, Chennai.

23/24 https://www.mhc.tn.gov.in/judis W.P.No.11415 of 2019 BATTU DEVANAND.J., pvs Pre-delivery order in W.P.No.11415 of 2019 12.11.2024 24/24 https://www.mhc.tn.gov.in/judis

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