# Saurabh Kumar Pandey v. R.B.I. & Ors

- **Citation:** (2021) 11 ILRA 654
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Writ A No. 7140 of 2021
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-kumar-pandey-v-r-b-i-ors-46605
- **Pages:** 5

## Headnote

A. Employment/Service Law - Termination -
Bombay Public Trust Act, 1950 - Banking
Regulation Act, 1949 - Section 22; Constitution
of India - Article 12.

Constitution of India: u/Art. 226 - Writ
jurisdiction - Maintainability - 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.
(Para 7)

Respondent-bank is a private sector bank duly
incorporated and having licence under Banking
Regulation Act, 1949. Reserve Bank of India is
entrusted with the full responsibility for supervising
and regulating the banks, including, private banks.
U/s 22 of the Act, 1949, private banks are required to
obtain licence from RBI to carry out the banking
business in India. 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. (Para 6, 15)

B. For a public law remedy enforceable
u/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. (Para 13)

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
11 All. Saurabh Kumar Pandey Vs. R.B.I. & Ors.
655
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. (Para 8)

The private bank 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
u/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 u/Art. 226.
Wherever Courts have intervened in exercise of
jurisdiction u/Art. 226, either the service conditions
were regulated by statutory provisions or the
employer had the status of 'State' within the
expansive definition u/Art. 12 or it was found that the
action complained of has public law element. (Para
14)

Writ petition dismissed.(E-4)

Precedent cited:

## Text

654 INDIAN LAW REPORTS ALLAHABAD SERIES
also consider relocating them to an alternative
property elsewhere.

vi)
The
District
Magistrate
is
authorised to use such other measures as may be
required to execute the directions given herein
above.

30. It is clarified that the petitioners no 3
and petitioner no 4 of Writ-C No. 14759 of 2021
will be at liberty to approach the Principal Court
of original civil jurisdiction in accordance with
law, if so advised, the other Petitioners in the
said petition shall also be at liberty to avail their
remedies before Civil Court in accordance with
law if so advised.

31. The writ petition being Writ-C No.
14759 of 2021 is dismissed and Writ-A No.
13256 of 2021 is disposed off in terms of the
order passed above.

32. In view of the order passed above,
Writ-C No. 17749 of 2019 and Writ-C No.
17779 of 2019 are rendered infructuous as
pleaded in paragraph no. 40 of Writ Petition No.
14759 of 2021 and as I have held that all the
rights can be agitated only before the principal
Court of original civil jurisdiction, however, no
orders are being passed in the said two cases as I
have not heard the learned counsels in the said
cases. The said two petitions shall be placed
before the appropriate court.
----------
(2021)11ILR A654
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 7140 of 2021

Saurabh Kumar Pandey ...Petitioner
Versus
R.B.I. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Lavlesh Kumar Shukla

Counsel for the Respondents:
C.S.C., Sri Pranjal Mehrotra

A. Employment/Service Law - Termination -
Bombay Public Trust Act, 1950 - Banking
Regulation Act, 1949 - Section 22; Constitution
of India - Article 12.

Constitution of India: u/Art. 226 - Writ
jurisdiction - Maintainability - 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.
(Para 7)

Respondent-bank is a private sector bank duly
incorporated and having licence under Banking
Regulation Act, 1949. Reserve Bank of India is
entrusted with the full responsibility for supervising
and regulating the banks, including, private banks.
U/s 22 of the Act, 1949, private banks are required to
obtain licence from RBI to carry out the banking
business in India. 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. (Para 6, 15)

B. For a public law remedy enforceable
u/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. (Para 13)

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
11 All. Saurabh Kumar Pandey Vs. R.B.I. & Ors.
655
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. (Para 8)

The private bank 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
u/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 u/Art. 226.
Wherever Courts have intervened in exercise of
jurisdiction u/Art. 226, either the service conditions
were regulated by statutory provisions or the
employer had the status of 'State' within the
expansive definition u/Art. 12 or it was found that the
action complained of has public law element. (Para
14)

Writ petition dismissed.(E-4)

Precedent cited:

1. M/s Pearson Drums & Barrels Pvt. Ltd. Vs The
General Manager, Consumer Education Cell of
Reserve Bank of India & ors., WPA No. 21710 of
2017, decided on 10.03.2021 (Para 5)

2. Roychan Abraham Vs St. of U.P. & ors., 2019 (3)
ADJ 391 (FB) (Para 5)

Precedent followed:

1. Federal Bank of India Vs Sagar Thomas & ors.,
(2003) 10 SCC 733 (Para 8)

2. Janet Jeyapaul Vs SRM University & ors. (2015) 16
SCC 530 (Para 9)

3. R.V. Panel on Takeovers and Mergers, ex parte
Datafin Plc & anr. (Norton Opax Plc & anr.
intervening), (1987) 1 All ER 564 (Para 9)

4. Anandi Mukta-Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust &
ors. Vs V.R. Rudani & ors., (1989) 2 SCC 691 (Para
10)

5. Zee Telefilms Ltd. & anr. Vs U.O.I. & ors., (2005) 4
SCC 649 (Para 12)

6. St. of U.P. & anr. Vs Johri Mal, 2004 (4) SCC 714
(Para 13)

Present
petition
assails
order
dated
31.03.2021, passed by Senior Group Manager,
Employee Relations, IndusInd Bank Limited,
Corporate
Office
Human
Resources
Department, Mumbai.

(Delivered by Hon'ble Suneet Kumar, J.)

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, Mumbai1, 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
656 INDIAN LAW REPORTS ALLAHABAD SERIES
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 others2 and Roychan Abraham Vs.
State of U.P. and others3

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, 19494.
Reserve Bank of India5 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 others6, 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.
SRM University and others7 , 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
intervening8):

"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
11 All. Saurabh Kumar Pandey Vs. R.B.I. & Ors.
657
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 others9 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. Union of
India and others10. The question that fell for
consideration was whether Board of Control for
Cricket in India11 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 Mal12, 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. 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
658 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
----------
(2021)11ILR A658
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 5418 of 2019
connected with
Writ A Nos. 15523 of 2019 and 2593 of 2021

C/M Manorama Kanya Junior High School,
Moradabad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C., Sri Shyam Krishna Gupta

A. Service Law - Education - Abolition of posts
of Clerk and Class IV employees - Uttar
Pradesh Junior High Schools (Payment of
Salaries of Teachers and other Employees) Act,
1978 - Section 9 - Uttar Pradesh Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment and Condition of Service of
Ministerial Staff and Group 'D' Employees)
Rules, 1984 - Right of Children to Free and
Compulsory Education (RTE) Act, 2009 -
Sections 19, 25 & 27 - Constitution of India -
Article 21-A.

The GO dated 15.01.2019 completely omits to
consider the requirement of services of Class III and
Class IV employees in junior high schools and makes
no provision for such services. It is also silent about
the manner in which such services would be provided
in the school in the absence of these employees.

Constitution of India - Article 21-A - Quality
Education cannot be provided without caring to
provide for necessary supporting services and
staff in keeping with the requirements of
Schedule. Basic ingredients and requirements of
Schedule to the Act of 2009 have been completely
overlooked by the State. This shows complete lack of
application of mind on the part of the State
Government.
The
failure
has
direct
adverse
consequence for the existence of schools. The
functioning of these institutions would get paralyzed