Bela M.Trivedi, J. - (1.) THE petitioner has filed the present writ petition under Article 226 of the Constitution of India, seeking direction against the respondents -ICICI Bank for quashing and setting aside the order dated 16/12/2013, and the order dated 14/4/2014 on the ground of being arbitrary and illegal, and further seeking direction to pay the full pension to the petitioner.
(2.) AT the outset, the learned counsel Mr. Ajeet Bhandari for the respondents appearing on caveat has raised the preliminary objection regarding the maintainability of the petition under Article 226 of the Constitution of India against the respondents -Bank, relying upon the decision of the Apex Court in case of Federal Bank Ltd. vs. Sagar Thomas & Ors., : (2003) 10 SCC 733, and the unreported judgments of this Court in S.B. Civil Writ Petition No. 1640/2013, Shivgiri Swami Vs. ICICI Bank Limited & Ors., S.B. Civil Writ Petition No. 18653/2012, Tej Singh Meena vs. General Manager, ICICI Bank, S.B. Civil Writ Petition No. 1349/2003, Smt. Meena Devi vs. Bank of Rajasthan & Ors. & S.B. Civil Writ Petition No. 5803/2014, Mahesh Kumar Somani vs. The ICICI Bank Limited & Ors. However, in response to the said objection, the learned counsel for the petitioner has relied upon the various decisions of the Apex Court in cases of Deokinandan Prasad vs. The State of Bihar & Ors, : AIR 1971 SC 1409(1), Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. vs. V.R. Rudani & Ors, : AIR 1989 SC 1607(1), M/s. Zee Tele Films Ltd. & Anr. vs. U.O.I. & Ors., : AIR 2005 SC 2677(1) & Akalakunnam Village Service Co -op. Bank Ltd. vs. Bindu N., 2014 9 Scale 473 to submit that the petition under Article 226 of the Constitution is maintainable against the State, or authorities or persons for enforcement of fundamental rights or for any other purpose. In the instant case, it appears that the petitioner was working with the erstwhile The Bank of Rajasthan Ltd., which was subsequently merged with the respondent -Bank. The services of the petitioner were continued with the respondent -Bank as per the order dated 21/8/2010, with the benefit of the pension scheme. The petitioner thereafter had sought voluntary retirement on 27/12/2011, and his said request was also accepted by the respondents vide the letter dated 13/01/2012. It appears that the petitioner after having been relieved by the respondent -Bank had joined the services of West Central Railway Employees Cooperative Credit Society, Kota with effect from 1/9/2012. Since there was violation of the condition imposed by the respondents -bank in the letter dated 21/8/2010 and violation of Rule 50(1) of the Bank of Rajasthan Limited (Employees') Pension Rules, 1996 and (Employees') Pension Fund Rules, 1996 to the effect that the petitioner could not take up any commercial assignment without obtaining written permission from the bank, he was served with the show cause notice dated 6/9/2013, calling upon him to explain as to why suitable action resulting into withdrawal of his pension benefits should not be initiated against him. The petitioner having replied to the show cause notice, the respondents -bank passed the order dated 16/12/2013 to the effect that the petitioner shall not be entitled to draw part of his monthly pension to the extent of Rs. 5800/ - for a period of one year with immediate effect. It appears that the petitioner had made representation to the Bank against the said order, under Rule 55 of the Pension Rules, 1996, but the said representation was also turned down being not maintainable vide letter dated 14/4/2014. The said orders are under challenge in the instant petition.
(3.) IT has been vehemently submitted by the learned counsel Mr. C.P. Sharma for the petitioner that the petition under Article 226 of the Constitution of India is maintainable against any authority including any person. It cannot be gain said that Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs, and such writs could be issued to any person or authority for the enforcement of fundamental rights and for any other purpose. However, if the rights are purely of a private character, no mandamus could be issued. The person or authority covered under Article 226 must owe an obligation to discharge a public duty. In the opinion of the Court, the decision of Apex Court in case of Federal Bank Ltd. vs. Sagar Thomas & Ors., (supra) relied upon by the learned counsel Mr. Ajeet Bhandari for the respondents clinches the issue. In the said case, the Apex Court considering all other earlier judgments has also held in para Nos. 26, 32 & 33, as under: - 26. A company registered under the Companies Act for the purposes of carrying on any trade or business is a private enterprise to earn livelihood and to make profits out of such activities. Banking is also a kind of profession and a commercial activity, the primary motive behind it can well be said to earn returns and profits. Since time immemorial, such activities have been carried on by individuals generally. It is a private affair of the company though case of nationalized banks stands on a different footing. There may, well be companies, in which majority of the share capital may be contributed out of the State funds and in that view of the matter there may be more participation or dominant participation of the State in managing the affairs of the company. But in the present case we are concerned with a banking company which has its own resources to raise its funds without any contribution or shareholding by the State. It has its own Board of Directors elected by its shareholders. It works like any other private company in the banking business having no monopoly status at all. Any company carrying on banking business with a capital of five lacs will become a scheduled bank. All the same, banking activity as a whole carried on by various banks undoubtedly has an impact and effect on the economy of the country in general. Money of the shareholders and the depositors is with such companies, carrying on banking activity. The banks finance the borrowers on any given rate of interest at a particular time. They advance loans as against securities. Therefore, it is obviously necessary to have regulatory check over such activities in the interest of the company itself, the shareholders, the depositors as well as to maintain the proper financial equilibrium of the national economy. The Banking companies have not been set up for the purposes of building the economy of the State; on the other hand such private companies have been voluntarily established for their own purposes and interest but their activities are kept under check so that their activities may not go wayward and harm the economy in general. A private banking company with all freedom that it has, has to act in a manner that it may not be in conflict with or against the fiscal policies of the State and for such purposes, guidelines are provided by the Reserve Bank so that a proper fiscal discipline, to conduct its affairs in carrying on its business, is maintained. So as to ensure adherence to such fiscal discipline, if need be, at times even the management of the company can be taken over. Nonetheless, as observed earlier, these are all regulatory measures to keep a check and provide guidelines and not a participatory dominance or control over the affairs of the company. For other companies in general carrying on other business activities may be manufacturing, other industries or any business, such checks are provided under the provisions of the Companies Act, as indicated earlier. There also, the main consideration is that the company itself may not sink because of its own mismanagement or the interest of the shareholders or people generally may not be jeopardized for that reason. Besides taking care of such interest as indicated above, there is no other interest of the State, to control the affairs and management of the private companies. Care is taken in regard to the industries covered under the Industries (Development and Regulation) Act, 1951 that their production which is important for the economy may, not go down, yet the business activity is carried on by such companies or corporations which only remains a private activity of the entrepreneurs/companies.;