Amit Yadav vs Hdfc Bank Ltd And Anr
2021 Latest Caselaw 4498 Bom

                                                                 13.WP.3215.19.doc

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION

                        WRIT PETITION NO. 3215 OF 2019


   Amit Yadav                               ...     Petitioner
             Versus
   HDFC Bank Ltd. and Anr.                  ...     Respondents
                                        .........


   Mr. S.V. Sonawane, Trisha Singh for the Petitioner.
   Ms. Suvarna Joshi a/w Anushree Koparkar i/b Ashutosh Marathe for
   Respondent No.1.
                                     .........
                                     CORAM        :     K.K. TATED &
                                                        R.I. CHAGLA, JJ.

                                     DATE         :     11th MARCH, 2021.

   P.C. :-




   1              Heard learned Counsel for the parties.


   2              By this Petition under Article 226 of the Constitution of India,

the Petitioner is challenging the termination order dated 03.01.2015

issued by Respondent No.1 HDFC Bank and also seeking directions to

reinstate him in service.

3 It is the case of the Petitioner that the Respondent-Bank

issued termination letter dated 03.01.2015 without holding any enquiry

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same was issued only on the basis of Clause 12 of the agreement of

employment dated 10.11.2007. Clause 12 of the said agreement reads

thus :

"12. Notwithstanding anything to the contrary contained herein, the Managing Director of the Bank or his/her deputy nominated by him/her shall in his/her sole discretion be entitled to forthwith terminate the employment of the Employee without any notice or payment of any kind whatsoever in lieu of notice or otherwise in the case of

(a) any act of dishonesty, disobedience, insubordination, intemperance, or other misconduct or neglect of duty or incompetence in the discharge of duty on the part of the Employee or the breach by the Employee of any of the terms, conditions, or stipulations contained in this Agreement;

(b) the Employee being adjudged an insolvent or applying to be adjudged an insolvent or making a composition or arrangement with his/her creditors or being held guilty by a competent court for any offence involving mortal turpitude.

For the purpose of sub-clause (a) hereof the opinion of the Managing Director of the Bank or his/her deputy nominated by him/her as to whether any of the events

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mentioned therein have occurred shall be final and binding upon the Employee and the Employee shall not be entitled to question the same on any ground whatsoever."

4 The learned Counsel Ms. Suvarna Joshi appearing on behalf

of Respondent No.1 submits that the Petition as it is filed by the Petitioner

is not maintainable. She submits that there is no question of taking any

recourse under Article 226 of the Constitution of India against

Respondent No.1 who is a private party. In support of this contention, the

learned Counsel for the Respondent No.1 placed reliance on the judgment

in the matter of Federal Bank Limited vs. Sagar Thomas and others

reported in 2003 AIR (SC) pg. 4325.

"31. 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 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

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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. 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."

5 The learned Counsel for Respondent No.1 also relies on the

judgment of High Court in the matter of Chanda Deepak Kochhar vs.

ICICI Bank Limited, reported in 2020(5) Mh.L.J. 219 Bom DB. Para 23 of

the said Judgment reads thus :

"23. ICICI is a private body. It is not an instrumentality of the State. It receives no public funding. Service conditions of the Petitioner are not governed by any statute. The dispute raised in this Petition arises from a contract of personal service. The termination of the Petitioner is in the realm of contractual relationship. Since Section 35B(1)(b) does not regulate service conditions , approval for termination under it does not adjudicate the rights of the Petitioner as an employee.

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                                                                                         13.WP.3215.19.doc

                                     Though     Section    35B(1)(b)       postulates   that    the

termination would not come into effect if there is no prior approval of the Reserve Bank, the cause of action for the Petitioner is the termination by ICICI. For the Petitioner, the legal implications of the grant of approval, non-grant of approval or post-facto approval, as the case may be, would be grounds and arguments in the contractual dispute. Thus merely because the approval under Section 35B(1)(b) is questioned, that cannot infuse a public law element in this dispute, which remains a contractual dispute. For the contractual remedies, the Petitioner will have to approach the appropriate forum and not writ jurisdiction."

6 On the basis of these facts, the learned Counsel for

Respondent No.1 submits that the Petition is required to be dismissed only

on the ground that same is not maintainable in law.

7 When this Court declined to entertain the present Writ

Petition on the basis of submission made by learned Counsel for

Respondent No.1, the learned Advocate for the Petitioner submits that she

requires some time to take instructions from her client for further action.

8 On her request, matter to appear on board on 15.03.2021.

Digitally signed by Waishali Waishali S.

           Waghmare
S.         Date:
Waghmare   2021.03.14
           22:50:14
           +0530                  ( R.I. CHAGLA, J. )                             ( K.K. TATED, J. )

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