Back
2019 Supreme(Raj) 1128
IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
Sanjeev Prakash Sharma, J.
Vaibhav Samuel - Appellants
Vs.
Union of India and Ors. - Respondents
S.B. Civil Writ Petition No. 12368 of 2018
Decided On : 06-02-2019
For the Appellant :Sunil Samdaria, Advocate
Headnote:
Companies Act – Article 226 – Article 32 – Article 12 – Constitution of India – Writ petition against respondent HDFC Bank which is admittedly private Corporate Bank registered and has not incorporated under Statute. Learned counsel for petitioner confronted with the Full Bench Judgment of this Court wherein Full Bench of Court held that writ petition would no maintainable against Bank incorporated for petitioner submits that judgment passed by Supreme, it is clear that when private body exercises its public functions even if it is not State, aggrieved person has remedy not only under ordinary law but also under Constitution, by way of writ petition under Article 226, merely because nongovernmental body exercises some public duty that by itself would not suffice to make such body State for the purpose. In instant case activities of Board do not come under guidelines laid down by this Court, hence there is force in contention of this petition under Article 32 of the Constitution is not maintainable –Held, Control of Reserve Bank of India is concerned, same is only limited to extent that are guidelines controlling over all interests, method and manner of banking may be regulated because there is certain regulations from Reserve Bank of India, concerned corporate Bank itself would not become authority controlled by Government or by State and it will not have statutory flavor, contention as raised by learned counsel for petitioner would not hold water. Full Bench of this Court has already taken similar view as noticed above same is binding on this Court and accordingly, Court refrains from entertaining this writ petition as against the HDFC which is private corporate Bank – Writ petition is dismissed. (Para 8, 9, 10)
Facts of the case:
Writ petition against respondent HDFC Bank which is admittedly private Corporate Bank registered and has not incorporated under Statute. Learned counsel for petitioner confronted with the Full Bench Judgment of this Court wherein Full Bench of Court held that writ petition would no maintainable against Bank incorporated for petitioner submits that judgment passed by Supreme, it is clear that when private body exercises its public functions even if it is not State, aggrieved person has remedy not only under ordinary law but also under Constitution, by way of writ petition under Article 226, merely because nongovernmental body exercises some public duty that by itself would not suffice to make such body State for the purpose. In instant case activities of Board do not come under guidelines laid down by this Court, hence there is force in contention of this petition under Article 32 of the Constitution is not maintainable.
Findings of the court:
Control of Reserve Bank of India is concerned, same is only limited to extent that are guidelines controlling over all interests, method and manner of banking may be regulated because there is certain regulations from Reserve Bank of India, concerned corporate Bank itself would not become authority controlled by Government or by State and it will not have statutory flavor, contention as raised by learned counsel for petitioner would not hold water. Full Bench of this Court has already taken similar view as noticed above. same is binding on this Court and accordingly, Court refrains from entertaining this writ petition as against the HDFC which is private corporate Bank.
Result: Writ petition is dismissed.
JUDGMENT :
Sanjeev Prakash Sharma, J.
1. The preliminary question which arises in this petition is that whether the writ petition would lie against the respondent HDFC Bank which is admittedly a private Corporate Bank registered under the Companies Act and has not been incorporated under a Statute. Learned counsel for the petitioner was confronted with the Full Bench Judgment of this Court in the case of Gopal Prasad Varshney Versus Bank of Rajasthan Ltd., 2009 (2) ILR (Raj.) 601, wherein Full Bench of this Court held that writ petition would not be maintainable against a Bank incorporated under the Companies Act namely Bank of Rajasthan. Learned counsel for the petitioner submits that the judgment passed by the Supreme Court in M/s. Zee Tele Films Ltd. and Another vs. Union of India and Others, AIR 2005 Supreme Court 2677, has held as under:-
"33. Thus, it is clear that when a private body exercises its public functions 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. Therefore, merely because a nongovernmental body exercises some public duty that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case (supra), hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable."
2. This Court is of the view that judicial discipline demands that once a Full Bench of this Court has taken a view, a Single Judge would not question the same unless there is a subsequent judgment which has come from the Supreme Court taking a different view. Judicial Discipline and law of precedents have been aptly discussed by the Apex Court in Official Liquidator vs. Dayanand and Others, (2008) 10 SCC 1 that apart in another case reported in (2003) 10 SCC 733, Federal Bank Limited vs. Sagar Thomas and Ors., the Apex Court has held as under:-
"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 a public duty or positive obligation of a public nature; and (viii) a person or a body under a liability to discharge any function under any statute, to compel it to perform such statutory function. It is no doubt true that a mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party."
3. The said judgment was considered by the Full Bench in the case of Gopal Prasad Varshney vs. Bank of Rajasthan Ltd. (supra), and it was held as under:-
"80. Therefore, in view of the ratio decided by the Hon'ble Supreme Court in the case of Federal Bank Ltd. vs. Sagar Thomas and Ors. (supra), we answer the question referred by the learned Single Judge in the terms that the respondent Bank of Rajasthan Limited is not a State within Article 12 of the Constitution of India and is not amenable to the writ jurisdiction under Article 226 of the Constitution of India."
4. Learned counsel for the petitioner has submitted written submissions. While he challenges Clause 12 of the document (Annexure-3) and the consequential termination order dt. 31/03/2018 on the ground of being arbitrary and being draconian and such a condition being part of the document of employment to be treated as void ab-initio, keeping in view the judgment passed by the Supreme Court in the case of Central Inland Water Transport Corporation vs. Brojo Nath Ganguly & Anr., AIR 1986 SC 1571, the arguments have also been advanced on the maintainability of the writ petition.
5. Learned counsel for the petitioner submits th
