Madras High Court
Unknown vs The Management Of Icici Bank Ltd on 12 November, 2024
Author: Battu Devanand
Bench: Battu Devanand
W.P.No.17797 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 11.09.2024
PRONOUNCED ON : 12.11.2024
CORAM
THE HON'BLE MR. JUSTICE BATTU DEVANAND
W.P.No.17797 of 2018
1. Valliappan R
2. Manimekalai S
3. Chockalingam AL
4. Murugappan R
5. Sathyamoorthy G N
6. Kannappan PL
7. Ramanathan L
8. Ramachandran RM
9. Muthiah M
10. Rajavel C
11. Annamalai L
12. Ramanathan L
13. Arunachalam RM
14. Meyappan N
15. Jayapal A
16. Alagappan V
17. Alagappan M
18. Narayanan N
19. Ramanathan PL
20. Annamalai K
21. Narayanan PL
22. Palaniappan PL
23. Chidambaram C
24. Andiappan KR
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W.P.No.17797 of 2018
25. Krishnappan AL
26. Thirunilai PR
27. Rajan
28. Baskaran M
29. Muthukaruppan T
30. Subbiah N
31. Subbiah M
32. Thiru Narayanan
33. Srinivasan R
34. Palanichamy D
35. Vellayappan M
36. Kumaresan S
37. Sathappan M
38. Palaniappan RM AL
39. Kumaravel K
40. Chidambaram S M
41. Ramanathan N
42. Alagappan AL
43. Kumarakuruparan SM M
44. Karuppan Chetty PL
45. Muthuraman C T S
46. Byravasubramanian K
47. Krishnamoorthy V
48. Govindan R
49. Ramanathan L
50. Muthu S
51. Ilango M
52. Somasundaram SP
53. Chinnaih A
54. Natarajan L
55. Meyyappan A
56. Ramanathan V
57. Solaiyappan S
58. Subramanian M
59. Subramanian S
60. Nachiappan S
61. Subramanian K
62. Ilango K
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W.P.No.17797 of 2018
63. Kaleel Rahman
64. Sambandhan AR
65. Andrew Solomon Rajendran
66. Ravi S
67. Thirunavukkarasu N
68. Jayakumar V
69. Natchiappan M
70. Moorthy V G S
71. Periyanan A
72. Dennis Ernest
73. Radhakrishnan C
74. Antonisamy A
75. Sundar M
76. Lakshmanan A
77. Venkatachalam N
78. Vijeyakumar R
79. Kannappan SP
80. Palaniappan RM
81. Lakshmanan T
82. Muthu S
83. Nagappan M
84. Muthalagappan M
85. Annamalai RM
86. Annadurai M
87. Amudan K
88. Subbiah RM
89. Dinavahi Diwakar
90. Dakshayani R
91. Vellayyan PL
92. Subramanian A
93. Ravichandran D
94. Alagusundaram G
95. Yegammai
96. Kannan AR
97. Karuppiah RM
98. Muthu V
99. Veerappan KN
100. Venkatasubramanian V K
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W.P.No.17797 of 2018
101. Alagappan RM
102. Santharam T R
103. Palaniappan N
104. Chokkalingam SM
105. Selvam M
106. Muthiah CT
107. Sathiamurthy V
108. Muthusamy K
109. Ramanathan TR
110. Veerappan SP
111. Manuel Xavier J
112. Annamalai L
113. Muthukrishnan
114. Ramasamy A
115. Sanjoy Mukherjee
116. Krishnamoorthy V
117. Mohan Kumar Menon
118. Surath Chandra Halder
119. Pradip Deb
120. Ashoke Chakrabarty
121. Ratan Kumar Das
122. Satindra Nath Basu
123. Tapan Kumar Gupta
124. Srimanta De
125. Sujal Chakraborty
126. Satya Ranjan Pal
127. Subrata KumarSarkar
128. ChandrabhanuSaha MR
129. Sandip Sanyal
130. Sushila Rajagopal
131. Muthuraman KR
132. Parvathi Dutta
133. Rabin Chandra Das
134. Pradip Kumar Chakraborty
135. Subodh Kumar Sharma
136. Shanta Venkitachalam
137. Sunita Wadhwa
138. Gulab Chand Bunkeer
4/26
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W.P.No.17797 of 2018
139. Ajit Kumar
140. Sant Ram
141. Ravinder Kumar
142. Hariom Gupta
143. Parameswaran N S
144. Chanderpal
145. Chandrakant G Valanju
146. Dayanand M Gokarn
147. Suthakar M N
148. Subramanian L
149. Ravindra Ganesh Khare
150. Purnima Nair
151. Achla Sethi
152. Jegadeesan G C
153. Dinkar Narayanan Shenoy
154. Ramesh P S
155. Bernard Viji A M
156. Suresh Babu
157. Mohanan Nair K
158. Susan P Abraham
159. Mohana Kumar B S
160. Gopakumar R
161. Harish Govind D
162. Shridar Ramachandra Rao
163. Sampangi C
164. Sandhya Rao M R
165. Kamath B J
166. Padmakar Shriram BhattBhatt
167. Shashi Agarwal
168. Abhay Kumar Das
169. Ashwani Kumar Vyas
170. Ashim Kumar Chowdhury
171. Suman Nath Sharma
172. Mahesh Chander Tiwari
173. Lakshanan L
174. Mr. Ramanathan M
175. Mr. Lakshmanan T ...
Petitioners
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W.P.No.17797 of 2018
Vs.
1. The Management of ICICI Bank Ltd.
Rep. by its Managing Director,
ICICI Bank Towers,
Ambattur Estate, Chennai.
2. Indian Bank Association
Rep. by its Chairman
World Trade Centre, 6th Floor, Centre 1 Building,
Cuffe parade, Mumbai – 400 005.
3. ICICI Bank Limited Employees’ Pension Fund
Rep. by its Board of Trustees
ICICI Bank Towers, ICICI Towers, Industrial Towers,
Ambattur Estate, Chennai-600 058. ... Respondents
PRAYER: Writ Petitions filed under Article 226 of the Constitution of India,
to issue a Writ of Mandamus directing the respondents to extend for the
petitioners an opportunity to exercise option notionally with effect from
1.8.2003 or any subsequent dates based on the date of cession of service, in
any event as per the 9th bipartite settlement.
For Petitioner : Mr.V.Prakash, Senior Counsel
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W.P.No.17797 of 2018
for Mr.K.Krishnamurthy
For Respondents
for R1 : Mr.A.L.Somayaji, Senior Counsel
for Mr.V.Perumal
for R2 : No Appearance
for R3 : Mr.C.Chandrasekar
ORDER
This writ petition is filed seeking mandamus to direct the respondents
to extend the petitioners an opportunity to exercise option notionally with
effect from 1.8.2003 or any subsequent dates based on the date of cession of
service, in any event as per the 9th bipartite settlement.
2. The facts in brief in this writ petition are that the petitioners were
originally joined their service at the Bank of Madura at various positions on
different dates. The Bank of Madura was amalgamated with the
1st respondent Bank under the Scheme of amalgamation sanctioned by the
Reserve Bank of India with effect from 10.03.2001. As per the said scheme,
all the employees of Bank of Madura stood transferred to the service of
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ICICI Bank Limited however, all the service conditions of the employees
were protected.
3. 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 and the 2nd respondent herein had
entered into a settlement at the National Level with various bank unions for
creating pension as a superannuation benefit. At that point of time, the
employees at all India Level were not conversant with the pension scheme
and the benefits that flow from that scheme and so the petitioners did not
exercise option within 25.07.1995 or during the subsequently extended date
i.e. 30.05.1996.
4. After the amalgamation of the erstwhile Bank of Madura with the
1st respondent bank, the 1st respondent bank had introduced Early
Retirement Option Scheme on 17.06.2003 and as per the said ERO scheme
eligible employees who opted and whose options were accepted by the Bank
and retired before 31.07.2003 are entitled for pension. Most of the
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employees of erstwhile Bank of Madura including majority of the petitioners
herein had opted for Early Retirement Option and thus retired from service.
Some of the petitioners had duly retired on attaining superannuation and a
few had retired on VRS in the latter years.
5. Further, on 30.06.2003 certain amendments were introduced to the
Pension Regulation including the Early Retirement of ICICI Bank of 2003
and making it effective from the next month i.e., following the month of
retirement. Therefore option should have been called for by the
1st respondent Bank for opting the pension scheme, but it was not done by
the 1st respondent Bank.
6. The main grievance of the petitioners is that as an amendment was
carried out in the year 2003, the employees should have been given option at
that time and opt for pension or atleast permitted to exercise option by the
petitioner in 2003. Hence, the present writ petition.
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7. It is the contention of the respondents that as per eBoM
Employees’ Pension Regulation 1995, employees joined on or after
1.11.1993 were automatically covered under pension scheme in lieu of CPF.
However, employees who were already in the services of the Bank of
Erstwhile Bank of Madura as on 31.10.1993 were required to exercise
option to choose between CPF and Pension (in lieu of CPF) as both benefits
were not available. It was made clear that to become eligible to receive
pension benefit, an employee has to be a member of the Employees’ Pension
Fund trust and such membership can be obtained only by way of exercising
option for pension within given time frame. Consequently, eBoM issued first
staff circular on 25.01.1995 inviting pension option in lieu of CPF from all
employees who were in the services of the Bank on 31.10.1993 and the time
limit for exercising irrevocable option for pension in lieu of CPF got expired
on 30.05.1996. Therefore, not exercising such option within the given time
frame would mean that they are not interested in pension benefits and are
comfortable to remain a CPF optees.
8. The respondent further submits that the contention and the
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reason for not exercising pension option during the stipulated time frame is
without any merits and the petitioners are not entitled to the relief sought in
the present writ petition.
9. Further, the 1st and 2nd 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.
10. During the course of hearing, the learned Senior Counsel
appearing for the first respondent Bank has raised a preliminary objection
with respect to the maintainability of the Writ Petition stating that the first
respondent/ICICI Bank Limited is a Private Bank and it is not amenable to
the Writ Jurisdiction.
11. 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.
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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
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.”
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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:
“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
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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.”
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
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authority within the meaning of the Article. ”
12. The learned Senior Counsel for the first respondent in support of
his contentions relied on the following judgments:
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
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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
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.
13. Having heard the respective counsels, this Court intends to decide
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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.
14. 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.
15. On perusal of the judgments relied on by the learned Senior
counsel for the first 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 or for service issues is not maintainable.
16. In the judgment relied on by the learned Senior Counsel for the
first 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
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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
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
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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
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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
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
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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.
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
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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
any statutory duty on the part of the Bank. That
being the position, the appeal deserves to be
allowed.”
17. All the other judgments relied on by the learned Senior Counsel
for the first respondent also on the same lines.
18. 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.
19. Admittedly, the first 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
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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
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
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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.”
20. Considering the ratio laid down in the judgments relied on by
learned Senior counsel for the first 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 first
respondent/ICICI Bank Limited.
21. 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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To
1.The Managing Director,
The Management of ICICI Bank Ltd.
ICICI Bank Towers,
Ambattur Estate, Chennai.
2. The Chairman,
Indian Bank Association
World Trade Centre, 6th Floor, Centre 1 Building,
Cuffe parade, Mumbai – 400 005.
3.The Board of Trustees,
ICICI Bank Limited Employees’ Pension Fund,
ICICI Bank Towers, ICICI Towers, Industrial Towers,
Ambattur Estate, Chennai-600 058.
https://www.mhc.tn.gov.in/judis
BATTU DEVANAND.J.,
pvs
Pre-delivery order in
12.11.2024
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