HIGH COURT OF ORISSA: CUTTACK.
                              W.P.(C) Nos. 10057 & 22133 of 2010

                   In the matter of application under Article 226 and  of the
                                       Constitution of India.
                                                    ---------

Pravas Chandra Mohanty (in W.P.(C) No.10057 of 2010) Nitai Chandra Patnaik (in W.P.(C) No.22133 of 2010) ...... Petitioners.

- Versus-

ING Vysya Bank Limited and Others (in both the cases) ... Opposite Parties Counsel for Petitioners : M/s. K. C. Kanungo, HVBRK Dora; M/s.

Bimbisar Dash, Chhabilendu Mohanta & A.

Nayak (in W.P.(C) No.10057 of 2010).

M/s. Sudarshan Nanda, S. P. Panda, S.

Pattnaik, R. R. Swain (in W.P.(C) No.22133 of 2010).

Counsel for Opp.Parties : M/s. M. Balkrishna Rao and R. K. Pattnaik (in both the cases) PRESENT:

THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD

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Date of hearing and judgment: 08.08.2018

------------------------------------------------------------------------------------- S. N. Prasad, J. Since the issue pertains in both the writ petitions are similar in nature, both the writ petitions are heard together and are being disposed of by this common order.

2. W.P.(C) No.10057 of 2010 has been filed challenging the memorandum of charge dtd.12.3.2008, Enquiry Report dtd.3.11.2008, punishment order dtd.30.12.2008, appellate order dtd.17.06.2009 and the 2 order passed on 26.2.2010 whereby and where under the petitioner has been inflicted with the punishment of compulsory retirement which has been confirmed by the higher authorities.

W.P.(C) No.22133 of 2010 has been filed challenging the show- cause notice under Annexure-1, order dtd.1.3.2010 under Annexure-2, appellate order dtd.28.6.2010 under Annexure-5 and the revisional order dtd.27.8.2010 under Annexure-7 whereby and where under the petitioner has been terminated from service which has been confirmed by the higher authorities.

3. The petitioners who were working in the ING Vysya Bank Ltd., Bhubaneswar assailed the charge-sheet, enquiry report and the order of punishment inter alia on the ground of violation of principle of natural justice, thereby invoked the jurisdiction of this court conferred under Article 226 of the constitution of India.

4. The opposite party - Bank has appeared and raised serious objection regarding maintainability of writ petitions by putting reliance upon the judgment rendered by Hon‟ble Apex court in the case of Federal Bank Ltd. Vrs. Sagar Thomas and Others, reported in AIR 2003 Supreme Court 4325.

5. This court, while hearing the matter on 16.5.2018, has passed an order providing an opportunity to the learned counsel for the petitioners to argue on maintainability of the writ petitions, pursuant to the same, learned counsel for the petitioners has argued out the case by submitting that the writ petitions are maintainable since there is violation of principle of natural justice and the ratio laid down in the case of Federal Bank Ltd. (supra) is not 3 applicable in the facts and circumstances of their cases since according to them, the aforesaid judgment has been rendered in the context of provision of Article 12 of the Constitution of India but here the question of maintainability is to be tested on the basis of the principles as to whether the opposite party - Bank is coming under the fold of other public authorities or not.

According to them, the bank is coming under the fold of other public authority and since the Constitution mandates that before taking any action which is having its civil consequence, the principle of natural justice is to be followed and since in these writ petitions the principle of natural justice has not been followed, as such the writ petitions are maintainable.

6. This Court, after hearing learned counsel for the parties, thinks it proper to first decide the issue of maintainability since this fact has been taken by way of preliminary objection by the opposite party by putting reliance upon the judgment rendered by Hon‟ble Apex Court in the case of Federal Bank Ltd. (supra) This court, prior to going into the factual aspect involved in the Federal Bank Ltd., has also thinks it proper to discus about the scope of Article 226 of the Constitution of India, vis-à-vis definition of „State‟ within the meaning of Article 12 of the constitution of India and other public authorities as stipulated under the provision of Article 226 of the constitution of India.

7. This Court has examined the judgment rendered by the constitution Bench of the Hon‟ble Supreme Court rendered in the case of Ajay Hasia vrs. Khalid Mujib Sehravardi reported in 1981 (1) SCC 722, wherein this tests were culled out from its earlier judgment in the case of Ramana 4 Dayaram Shetty vrs. International Airport Authority of India, (1979) 3 SCC 489, in the case of Ajay Hasia (supra) at para-9 it has been held as follows:-

"(1) One thing is clear that if the entire share capital of the corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government.

(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.

(3) It may also be a relevant factor ...whether the corporation enjoys monopoly status which is State conferred or State protected.

(4)Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.

(5) If the functions of the corporation are of public importance and closely related to governmental function, it would be a relevant factor in classifying the corporation as an instrumentality or agency of the Government.

(6) Specifically, if a department of the Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of the Government."

In the judgment rendered in the case of Pradeep Kumar Biswas vrs. Indian Institute of Chemical Biology, (2002) 5 SCC 111, wherein at para-40, it has been laid down that the picture that ultimately emerges is that the tests formulated in Ajaya Hasia (supra) are not rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found, then the body is a State within the meaning of Article 12, on the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.

In the case of Zee Telefilms Ltd. vrs. Union of India,(2005) 4 SCC 649, the Hon‟ble Supreme Court while dealing with the issue as to whether the Board of Control for Cricket in India (BCCI) is "State" within the meaning of Article 12 of the Constitution. After detailed discussion on the functioning of BCCI, the Constitution Bench of Hon‟ble Apex Court concluded that it was not a "State" under Article 12 and made following observations at para-30;

"30. However, it is true that the Union of India has been exercising certain control over the activities of the Board in regard to organizing cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot be construed as an administrative control. At best this is purely regulatory in nature and the same according to this Court in Pradeep Kumar Biswas (supra) case is not a factor indicating a pervasive State control of the Board."

8. It is evident from the aforesaid judgments as referred hereinabove that if the authority/body can be treated as "State" within the meaning of Article 12 of the Constitution of India, indubitably a writ petition under Article 226 would be maintainable against such an authority/body for enforcement of fundamental and other rights. Article 12 appears at Part III of the Constitution or it pertains to fundamental rights. Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part-III. Article 226 of the Constitution of India, which deals with powers of the High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Provision of Article 12 of the Constitution, as per the definition contained therein, the "State" includes the Government and Parliament of 6 India and the Government and legislature of each State as well as "all local or other authorities within the territory of India or under the control of the Government of India". The word "other authority" in Article 226 of the Constitution of India needs to be appreciated by this Court and the tests/principles which are to be applied for ascertaining as to whether a particular body can be treated as "other authority" or not is to be assessed, if an authority violates the fundamental right or other legal rights of any person or citizen, which has already been dealt with in the judgment referred hereinabove.

9. There is no confusion about the settled position of law that if such an authority violates the fundamental right or other legal rights of any person or citizen, as the case may be, a writ petition can be filed under Article 226 of the Constitution of India invoking extraordinary jurisdiction of the High Court seeking appropriate direction, order or writ. However, under Article 226 of the Constitution of India, the power of the High Court is not limited to the Government or authority which qualifies to be a "State" under Article 12. Power is extended to issue directions, orders or writs "to any person or authority".

The expression "any person or authority" is to be taken in the wider meaning as has been held in the case of Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust vrs. V.R. Rudani, (1989) 2 SCC 691, wherein dispute arose between the Trust which was managing and running science college and teachers of the said college. It pertained to payment of certain employment related benefits like basic pay etc. The matter was referred for its decision before the Chancellor of Gujarat University, who passed an order which has been accepted by the 7 University as well as the State Government and a direction was issued to all affiliated colleges to pay their teachers in terms of the said award. However, the aforesaid Trust running the science college did not implement the award. Teachers filed the writ petition seeking mandamus and direction to the Trust to pay them their dues of salary, allowances, provident fund and gratuity in accordance therewith. It is in this context an issue arose as to whether the writ petition under Article 226 of the Constitution was maintainable against the said Trust which is admittedly not a statutory body or „authority‟ under Article 12 of the Constitution as it was a private Trust running an educational institution. The High Court held that the writ petition was maintainable and the said view was upheld by this Court in the aforesaid judgment.

In the aforesaid judgment, observation made by the Hon‟ble Supreme Court in the aforesaid judgment as contained in Paras 15 to 20, are relevant for the present, as such the same are being reproduced herein below:-

"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. It has to be appreciated that the appellant Trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions, The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right- duty existence of this relationship, mandamus cannot be refused to the aggrieved party.

17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The „public authority‟ for them means everybody which is created by statute-and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory 8 undertakings and corporations, are all „public authorities‟. But there is no such limitation for our High Courts to issue the writ „in the nature of mandamus‟. Article 226 confers wide powers on the High Court to issue writs in the nature of prerogative writs. This a striking departure from the English law. Under Article 226, writs can be issued to „any person or authority‟. It can be issued „for the enforcement of any of the fundamental rights and for any other purpose.‟

20. The term „authority‟ used in Article 226, in the context, must receive a liberal meaning like 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 persons 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 persons or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied."

It is evident from the aforesaid judgment that Hon‟ble Supreme Court has spelled out two exceptions to the writ of mandamus; (i) if the rights are purely of a private character, no mandamus can issue; and (ii) if the management of the college is purely a private body "with no public duty", mandamus will not lie. The Hon‟ble Supreme Court in the aforesaid case has clarified that since the Trust in the said case was an aiding institution, and due to that reason, it discharges public function, like government institution, by way of imparting education to students, more particularly when rules and regulations of the affiliating university are applicable to such an institution, being an aided institution. In such a situation, it has been held therein that the service conditions of academic staff were not purely of a private character as the staff had super-aided protection by university‟s decision creating a legal right and duty relationship between the staff and the management.

10. In the judgment referred in the case of K. Krishnamacharyuly vrs. Sri Venkateswara Hindu College of Engineering, (1997) 3 SCC 571, wherein at para-4, it has been held by the Hon‟ble Supreme Court that when 9 there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in performance of their duties. In such a situation, remedy provided under Article 226 would be available to the teachers. The aforesaid two cases pertain to educational institutions and the function of imparting education.

In the case of Binny Ltd. vrs. V. Sadasivan, (2005) 6 SCC 657, the Hon‟ble Supreme Court has clarified that though writ can be issued against any private body or person, the scope of mandamus is limited to enforcement of public duty. It is the nature of duty performed by such person/body which is the determinative factor as the Court is to enforce the said duty and the identity of authority against whom the right is sought is not relevant. Such duty can either be statutory or even otherwise, but, there has to be public law element in the action of that body.

In the case of K. K. Saksena vrs. International Commission on Irrigation & Drainage, (2015) 4 SCC 670, the International Commission on Irrigation & Drainage (in short ICID) since was not funded by the Government nor was discharging any public duties any function under any statute, as such the Hon‟ble Supreme Court has scrutinized the only question therein as to whether it is discharging public duty or positive application of public nature and the Hon‟ble Supreme Court agreeing and biased that it has not discharged public duty which is not amenable under Article 226 of the Constitution of India.

11. It is, thus, evident that the element of public duty is to be seen vis-à-vis if the rights are purely of a private character as has been held in the case of Anadi Mukta Sadguru (supra) by the Hon‟ble Supreme Court, hence 10 this Court in order to examine this aspect of the matter as to whether the right which is being claimed by the petitioners is purely of a private character or not?

If the answer will be that it is entirely private, mandamus will not be issued, but certainly if there will be public element, the petitioners are entitled for issuance of writ of mandamus upon the opposite parties for redressal of their grievance.

The judgment rendered by the Hon‟ble Apex Court in the case of Federal Bank Ltd. (supra) is also need to be discussed herein since the same has been relied upon by the Opposite Party - Bank. The factual aspect in that case is that the Federal Bank being a private company carrying on banking business as a schedule bank, can it be termed as an institution or company carrying on any statutory or public duty.

The Hon‟ble Apex Court, by dealing with the constitution of the Federal Bank and its control by the Reserve Bank of India, has been pleased to hold by taking aid of the judgments rendered in the case Sukhdev Singh Vrs. Bhagatram Sardar Singh Raghuvanshi reported in (1975) 1 SCC 421, Ramana Dayaram Shetty Vrs. International Airport Authority of India reported in (1979) 3 SCC 489, Ajay Hasia, Vrs. Khalid Mujib Sehravardi reported in AIR 1981 SC 487, has been pleased to hold at paragraph 17 as follows:-

"17. 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) 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 (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function."

In paragraph 26 it has been held therein as follows:-

"26. 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 Air (Prevention and Control of Pollution) Act, 1981 or 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 of those provisions. For instance, if a private employer dispense 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 have 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 of 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."

Thus it is evident that the Hon‟ble Apex Court in the aforesaid judgment, has been pleased to laid down that the private companies like the Federal bank, would normally not be amenable to the writ jurisdiction under Article 226 of the constitution of India, 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 Air (Prevention and Control of Pollution) Act, 1981 or 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 of those provisions. For instance, if a private employer dispense 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 have issued the writ to the 12 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 of 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.

12. Learned counsel for the petitioner has given much emphasis upon the observation made at paragraph 26 of the judgment as quoted above and submitted that since there is violation of principle of natural justice it is in violation to the mandate of the constitution, hence there is a statutory violation, as such writ will be maintainable before this court.

13. This court, after going through the judgment rendered by Hon‟ble Supreme Court as has been discussed in the preceding paragraphs, has come to finding on the basis of the judgment rendered in the case of Anadi Mukta Sadguru's case (supra) that if the dispute is entirely private, mandamus will not be issued but certainly if there will be a public element the petitioners are entitled to issuance of writ of mandamus upon the opposite parities for redressal of their grievance.

This court has also gone across the judgment rendered in the case of State Of Himachal Pradesh vs H.P. State Recognised And Aided School Managing Committee, reported in 1995 4 SCC 507 wherein also the writ petition has been held to be maintainable against private educational institution if the public law element is involved.

Likewise in the judgment rendered in the case of K.

Krishnamacharyulu Vrs. Sri Venkateswara Hindu College of Engineering, reported in (1997) 3 SCC 571 the writ petition under Article 226 of the 13 Constitution of India has been held to be maintainable if public law element is involved.

In the judgment rendered in the case of Satimbala Sharma and Others Vrs. St. Paul's Senior Secondary School and Others, reported in (2011) 13 SCC 760 Hon‟ble Apex Court, at paragraph 23 held that the writ petition has been held to be not maintainable if public law element is not involved and if the grievance related to the salary and allowances of the employees which is exclusively the matter of contract between the teacher and the school and not within the domain of public law, for ready reference the same is being referred herein below:-

"23. We also do not think that the Court could issua a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances payable to teachers of government schools or government-aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law."

In the judgment rendered in the case of Ramesh Ahluwalia Vrs.

State of Punjab and Others, reported in (2012) 12 SCC 331, the writ petition has been held to be maintainable against the private schools if performing public functions.

14. This court, therefore has examined the factual aspect in the light of the ratio laid down by the Hon‟ble Apex Court in those cases to examine as to whether the dispute raised in these writ petitions is private or there is any public element.

It is evident from the pleading made in the writ petition as also in the prayer that the petitioners have come forward in these writ petitions by assailing the orders of compulsory retirement which admittedly cannot be said to be having any public element, rather it is entirely private, hence in view of 14 the aforesaid proposition of law as discussed above, writ will held not to be maintainable.

The writ will also not lie in view of the judgment rendered by Hon‟ble Apex Court in the case of Federal Bank (supra) even on the basis of the observation made at paragraph 26 of the aforesaid judgment for the reason that there it has been held that the writ can lie in case of non- compliance or violation of any statutory provision by the private body but it is not the case of the petitioners that there is violation of any statutory rule as provided under any statutory provision, rather their cases are that there is violation of principle of natural justice while from the pleading made in the writ petitions, specifically from the enquiry report, it is evident that not only the petitioners have given their defence reply but also cross-examined witnesses, hence it is not understandable to the court as to how the finding of the enquiry officer or the order of punishment is without following the principle of natural justice.

It is also evident from the order of compulsory retirement that even 2nd show cause notice was given to the petitioner and after taking into consideration the response to the finding of the enquiry report submitted by the petitioners, the order of punishment has been passed, therefore it is not a case of violation of principle of natural justice, rather the petitioners want to assail the aforesaid orders on its merit.

15. This court, after going through the factual aspect involved in the case of Federal Bank, specifically the constitution of the Federal Bank, the parties have not disputed that the opposite party - Bank herein also is the creation in the same nature as that of the Federal Bank Ltd., i.e. it is also a schedule bank, controlled and governed by the RBI regulation, hence 15 according to my considered view there is no difference in the constitution of the opposite party bank vis-à-vis the Federal Bank and also there is no violation of any statutory provision, as such the case of the petitioners cannot said to be governed in view of the exception stipulated at paragraph 26 in the judgment rendered in the case of Federal Bank Ltd.

16. This court, after taking into consideration the factual aspect vis- à-vis the ratio laid down by Hon‟ble Apex Court as discussed above, is of the view that since the dispute raised by the petitioners is totally private in nature and even though the opposite party - bank is a public authority, writ will not lie since there is absence of any public element and further in view of the ratio laid down by Hon‟ble Apex Court in the case of Federal Bank Ltd.

Accordingly writ petition is held to be not maintainable under the provision of Article 226 of the constitution of India for the reasons aforesaid.

In the result the writ petitions stand dismissed, however, reserving liberty to the petitioners to search out their forum to ventilate their grievance.

Accordingly the writ petitions stand disposed of.

...................

S.N.Prasad, J.

Orissa High Court, Cuttack, Dated the 8th August, 2018 / Manas.