VIJAYKUMAR S/O. VASUDEVRAO KULKARNI v. CHIEF EXECUTIVE OFFICER

The petitioner was working in Sangli bank from 18.6.1984 after resigning from Canara bank on 15.6.1984 wherein he was working from 26.9.1970. Sangli Bank was amalgamated with ICICI bank in 2007. The designations of employees of transferor bank were changed in transferee bank. The working hours were increased to 9 hours and allowance was paid instead of DA by the ICICI bank. Thereafter petitioner retired on 31.12.2012 on attaining the age of superannuation and was not paid his proper pension and gratuity by the ICICI bank. He made several correspondences with the bank requesting to include DA and consider length of his service as 46 years instead of 27 years for calculation of pension but in vain. Thereafter, petitioner sent a reminder to the bank to consider his post retirement queries vide letter dated 25.9.2012. In turn the bank rejected to consider the petitioners queries stating that all retiral benefits have been calculated and settled as per MoU between the management of ICICI bank and Sangli bank. Hence, this writ petition.

2. The Bombay High Court in the case of Chanda Deepak Kochhar -vs- ICICI Bank Ltd., Mumbai and Another reported in 2020 SCC OnLine Bom 374 reiterated by apex court in an appeal reported in 2020 SCC OnLine SC 969 has held as follows:

13. ICICI is a private bank. It is administered by its Board of Directors. ICICI is not established under any statutory instrument. ICICI receives no funds from the Government. Division Bench of this Court in the case of Ruchi Soya Industries Ltd. v. IDFC Bank Ltd., 2017 MhLJ Online 124 : 2017 SCC OnLine Bom 4252, in case of another private bank, Standard Chartered Bank, has held that it is not amenable to writ jurisdiction. ICICI is not an Authority under Article 12 of the Constitution of India.

15. ICICI has its Code of Business Conduct and Ethics. This Code of ethics governs its employees, officers and directors. The Code deals with issues such as conflicts of interest, personal investments, workplace responsibilities, duties of directors, disciplinary procedures. The appointment of the petitioner from time to time is with the resolutions of the Board of ICICI. Under the resolution appointments have been made wherein salaries, per-requisites, bonus have been fixed. The employer of the petitioner is the ICICI and the relationship between the petitioner and the ICICI Bank is governed by the contract of terms of the resolution and orders passed by the ICICI. The services of the petitioner are in terms of matter of contract of service with ICICI. In respect of the appointments, communications have been issued by the Reserve Bank under section 35-B(1)(b) of the Banking Regulation Act. The question is of the implications of the section 35-B(1)(b) of the Act.

3. The Apex Court observed that a writ would not lie to enforce purely private law rights. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. Before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such authority is in the domain of public law as distinguished from private law. Further it was observed that if the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced.

4. When employments in a private entity is regulated by contracts, the courts do not exercise the writ jurisdiction. For the petitioner, the legal implications of calculation of pension based on his length of service or based on his last drawn pay slip and inclusion of DA, as the case may be, would be grounds and arguments in the contractual dispute. Thus merely because non fulfillment of post retiral queries, 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. Since this writ petition is dismissed without going into the merits of the case, the decisions relied upon by the learned counsel for the petitioner are not applicable. ORDER

1) Writ petition is dismissed.

2) Liberty is reserved with the petitioner to agitate his claim in accordance with law. Petitioner is entitled for benefit under section 14 of Limitation Act for excluding the time spent in other proceedings. Sd/- JUDGE