THE HONOURABLE MRS v. ICICI Bank Limited

the ground of maintainability and on merits. Hence the employeeshave filed this appeal.2.The facts are as follows:On 30.01.1996, the Bank of Madura introduced for the firsttime the Bank of Madura Employees' Pension Regulations(BoMPR). Thiswas modified in 1999, incorporating provisions relating to theoptees of Bank of Madura Employees' Voluntary Retirement Scheme(VRS in short). Then on 10-03-2001, the Scheme of amalgamation ofBoM with ICICI came into effect with the sanction of RBI as per theBanking Regulations Act. 3.On 29-06-2001, the representatives of BoM Associationand ICICI Bank worked out an agreement to facilitate theintegration process and certain clauses of this agreement arerelied on by the appellants. On 19-09-2002, another agreement wasentered into between the ICICI, Bank Officers' Association(BOA)and the ICICI Bank. In this, the earlier settlement is specificallyreferred to and it also states that all earlier agreements aresuperceded. In 2003, the appellants agreed to the Early RetirementOption. In 2005, the All India Bank Officers' federation issuedguidelines for calculating pension as per 8th bipartite settlement.This is the background against which the rights of the parties haveto be decided.4.The learned Counsel for the appellants submitted thatpension is a right which cannot be mutilated. Article 226 of theConstitution can be invoked if this right is violated. He referredto various clauses in the Regulations and the Agreement to supporthis case. He submitted that the Dearness Allowance is the cushionfor the pensioners against the rising inflation and that cannot betaken away. There can be no decision by the respondent whichadversely affects the right of the BoM Employees. The learnedCounsel submitted that it was agreed that the employees who hadopted for the pension benefit will be eligible for the same as perthe Regulations. It was submitted that the word the "emoluments"would include "dearness allowance" and the Scheme of amalgamationprovides that the erstwhile BoM employees will be entitled toreceive emoluments which are not less favourable than what theyreceived earlier. He submitted that the deprivation of the right torecive dearness allowance affects the right to life as envisaged inArt. 21. He referred to the following decisions:(i) AIR 1969 SC 1306 (Praga Tools Corpn. Vs. C.V. Imanual)(ii) 1999 (3) LLN 310 (A.K. Ansari Vs. Bharat Overseas Ltd.) https://hcservices.ecourts.gov.in/hcservices/ (iii) W.P.No.32502 of 2003 etc. batch dated 26-11-2008(V.Kannappan Vs. Additional Secretary, Ministry of Finance and Company Affairs)(iv) 2008 (3) LLN 320 = Manu/TN/0056/2008 (ICICI Bank Ltd. Vs. Lakshminarayanan)(v) 2004 SCC (L&S) 214 (Grid Corporation of Orissa Vs. Rasananda Das)(vi) 2005 WLR 820 (N. Venkatramani Vs. Indian Overseas Bank)5.The learned Senior Counsel for the respondent submittedthat the issue is squarely covered by the decision of the SupremeCourt in the Federal Bank Ltd. Vs. Sagar Thomas (2003 (10) SCC733). He referred to ICICI Bank Vs. Lakshmi Narayan (2008(3)LLN320 = Manu/TN/0056/2008), in the case of the same respondent and inrespect of the same Pension Regulations, a Division Bench of thisCourt had held that the writ is not maintainable. He also read outthe various agreements to which at least two of the appellants wereparties, where mutually acceptable terms have been agreed upon andnow the appellant cannot claim anything beyond that. He furthersubmitted that the ICICI Bank does not have a pension Scheme forits employees, and it is only to honour the commitment made to theerstwhile BoM employees that the respondent had decided to continuethe existing Scheme. He submitted that it was agreed by the partiesthat the DA would be merged with the Basic Salary, and after thetotal merger of the FDA no DA will be payable. To demand DA afteragreeing to this is unacceptable. He also submitted that actuallywhen the pension was calculated for the petitioners it was foundthat the pesnsion calculated on the basis of the present Basic Paywas less than the pension payable on the basic pay as received inBoM together with the appropriate increments and DA. So what waspaid was according to the latter calculation. Therefore, it isincorrect to say that the appellants were adversely affected. Hefinally submitted that there is no violation of Article 21 of theConstitution of India and the writ must be dismissed both onmaintainability and on merits. The learned Senior Counsel reliedon the following judgments:(i) 2003 (10) SCC 733 (Federal Bank Ltd. Vs. Sagar Thomas)(ii) Manu/TN/0056/2003 = 2008(3)LLN 320 (ICICI Bank Vs.Lakshmi Narayan)(iii) 2005 (6) SCC 637 (Binny Vs. Sadasivan)(iv) 2004 (3) CTC 1 (P. Pitchumani Vs. Management & Anrs)(v) 2005 (2) CTC 55 (Nadar Sangam Vs. RBI & Others) https://hcservices.ecourts.gov.in/hcservices/ (vi) 2006 (1) CTC 776 (Nadar Sangam Vs. RBI & Others)(vii) 2006 (11) SCC 634 (S. S. Rana Vs. Registrar & Other)(viii) 1991 (2) SCC 104 (Indian Ex-Service & Others Vs. Unionof India)(ix) 1997 (6) SCC 7 (K.L. Rathee Vs. Union of India)(x) 2006 (13) SCC 215 (K.S. Krishnaswami Vs. Union of India)(xi) 1994 (Supp.) (2) SCC 108 (Noida Entrepreneurs AssociationVs. U.P. Financial Corporation & Other) 6.The important extracts from the various documents reliedon are as follows.(i) In BoM Regulations, "w) 'Retirement' means cessation from Bank'sservice,-i) ...ii) on voluntary retirement in accordance withprovisions contained in regulation 9 of theseregulations;..ze) 'V.R.S.' means Bank of Madura Employees'Voluntary Retirement Scheme enclosed to the circularCO.STF:39/94-95 dated July 21, 1994, or any otherspecific scheme that may be implemented in futurebringing such scheme under the definition of thisregulation. The employees who have completed 20 years ofservice in the bank and who have retired subsequent tothe expiry of the scheme mentioned in the CircularCO:GM:CIR:2/93-94 dated May 20, 1993 and who wereextended the additional benefits in addition to thenormal retirement benefits shall be deemed and consideredto have retired under V.R.S."36. Amount of Pension:(1) In respect of employees who retired between the1st day of January 1986, but before the 31st day on October1987, basic pension and additional pension will beupdated as per the formula given in Appendix-I https://hcservices.ecourts.gov.in/hcservices/ (2) In the case of an employee retiring inaccordance with the provisions of the Service Rules orSettlement after completing a qualifying service of notless than thirty three years the amount of basic pensionshall be calculated at fifty per cent of the averageemoluments.(3) (a) Additional pension shall be fifty per centof the average amount of the allowances drawn by anemployee during the last ten months of his services;(b) no dearness relief shall be paid on the amountof additional pension....38.Dearness Relief:(1) Dearness relief shall be granted on basicpension or family pension or invalid pension or ancompassionate allowance or on pension to employeesretiring under VRS in accordance with the rates specifiedin Appendix II.(2) Dearness relief shall be allowed on full basicpension even after commutation. (3) (a) Additional pension shall be fifty per centof the average amount of the allowances drawn by anemployee during the last ten months of his service;(b) no dearness relief shall be paid on the amountof additional pension.Explanation: For the purpose of this sub-regulation"allowances" means allowances which an admissible to theextent counted for making contributions to the ProvidentFund.39.Determination of the period of ten months foraverage emoluments:-(1) The period of the proceeding ten months for thepurpose of average emoluments shall be reckoned from thedate of retirement.(2) In the case of voluntary retirement of prematureretirement or employees retiring under VRS the period ofthe preceeding ten months for the purpose of averageemoluments shall be reckoned from the date on which the https://hcservices.ecourts.gov.in/hcservices/ employee voluntarily retires or is premature retired bythe Bank or the employee retired under VRS as the casemay be.(3) In the case of dismissal or removal orcompulsory retirement or termination of service theperiod of the preceeding ten months for the purpose ofaverage emoluments shall be reckoned from the date onwhich the employee is dismissed or removed orcompulsorily retired or terminated by the Bank.(4) If during the last ten months of the service anemployee had been absent from duty on extraordinary leaveon loss of pay or had been under suspension and theperiod whereof does not count as service, the aforesaidperiod of extraordinary leave or suspension shall not betaken into account in the calculation of the averageemoluments and an equal period before the ten monthsshall be included.9.All the employees of the Transferor Bank inservice on the Effective Date shall become the employeesof the Transferee Bank on such date without any break orinterruption in service and on emoluments which are notless favourable than those subsisting with reference tothe Transferor bank as on the Effective Date. (ii)In Memorandum of Settlement dated 27-10-1999,iii) The pension amount shall be calculated based onaverage emoluments i.e., average of pay drawn by anemployee during the last ten months of his service as perRegulation 39. However, subsequent wage revisions shallbe given effect to notionally to arrive at the averageemoluments."(iii)In the RBI's order dated 26th February 2001Ref.No.DBOD.No.PSBS.725/16.01.128/2000-2001, "Agreement between the representatives of Bank ofMadura Officers' Association and ICICI Bank:... The eBoM structure has a component of variableDA linked to Consumer Price Index which is absent in theICICI Bank structure. While there are varied number ofallwoance in eBoM not linked to the performance, asignificant portion of compensation come throughperformance linked bonus in ICICI Bank. .. https://hcservices.ecourts.gov.in/hcservices/ Against this backdrop the new compensation structureis designed. The new structure will be effective fromJuly 1, 2001. This is a major step in the integrationprocess now underway. ..•As a second step, the FDA (FDA+3.5% of the Basic)will be divided in three equal parts. One part soarrived at will be added to the Basic pay and balanceamount will be paid as FDA for the year.•Inflation neutralisation worked out on the aboveformula will be for a period of three years i.e. tillthe time the FDA gets fully merged with Basic salary.While calculating neutralisation, the Basic Pay will bethe one as described above without adding performance-linked rise in Basic salary, if any, earned by theofficers.Examples have been given as to how it is calculated.(iii) Provident Fund/Pension FundProvident Fund contribution by the officer and theBank is currently @ 10% of Basic salary. For those whohave opted for Pension, the Bank's contribution iscredited to the Pension Fund. It is decided to continuethe existing scheme for the time being. It is howeverintended to offer the scheme obtainable in ICICI Bank tothe eBoM officers. Keeping in mind the complexitiesinvolved in calculations and the cost impact it isdecided to engage a reputed Actuarial Firm to help theBank in arriving at appropriate decision. It is expectedthat by the end of March 2002 a clear picture will emergefor taking a view on the retirement benefits. Till suchtime the new scheme is made applicable on mutualacceptance, the existing scheme would continue. (iv) IBA SettlementThe new compensation structure and service conditions arequite different from the IBA structure. It is also amuch higher package. This is a significant change in thecompensation structure which was successfully conceivedthrough mutual discussions. Any change to this packageor any change to any other related matter will be aftermutual discussions and agreement, irrespective of anypresent or future IBA settlements and or guidelines orany other agreements, understandings with eBoM officersby the earlier establishment in this regard. https://hcservices.ecourts.gov.in/hcservices/ (v) Agreement between the representatives of ICICI BankOfficers' Association and ICICI BankThe representatives of the above parties havearrived at an understanding on January 16, 2001 and June29, 2001. While the agreement of January 16, 2001 helpedcreate an atmosphere of trust and understanding tofacilitate integration process between the erstwhile Bankof Madura and ICICI Bank, the agreement of June 29, 2001,details steps taken in respect of integration on aspectslike Compensation structure linked to performance,Service Conditions and Code of Conduct.The parties have all along enjoyed each others'confidence and trust and have maintained an atmosphere ofcordial relations over period. The parties agree that there is a need to arrive atan understanding and re-write the agreements due tosignificant development during the intervening period.The merger of ICICI Ltd., ICICI PFS Ltd., and ICICICapital Services Ltd., with ICICI bank has necessitatedarriving at new understanding between the parties suchthat this integration process runs smoothly. With this end in view, the representatives of theparties met on various dates and held detaileddiscussions. As a result of these, the representativesmet again on September19, 2002 at Mumbai and have arrivedat an agreement annexed hereto. THis agreementsupercedes all the previousunderstandings/agreements/practices in respect ofcompensation structure, promotion process, and othermatters referred to in the agreement annexed. The Codeof Conduct described in the agreement of June 29, 2001and circulated vide circular No.ICBK/HRD/2001-2002/1899of September 29, 2001 remains unchanged. The partiesagree to continue to work with the same level ofunderstanding for the growth of the organisation and itsemployees. (vi)Agreement dated September 19, 2002 between therepresentatives of ICICI Bank Officers' Association and ICICI Bank1. The compensation structure of the officers oferstwhile Bank of Madura (eBoM) in the grade of AssistantManager and above, will now be aligned with the structureof the other employees in the similar grades. There willbe no change in the basic salary on this alignment,except the amount of Fixed Dearness Allowance (FDA) drawn https://hcservices.ecourts.gov.in/hcservices/ by these officers will be emerged in the Basic salaryeffective from October 1, 2002. On the merger of FDA, asabove, no FDA will be payable.(vii)Under Early Retirement Option 2003 (ERO) dated June 17,2003,8D Pension BenefitThe Eligible Employees who have opted for pensionbenefit as per the erstwhile Bank of Madura Employees'Pension Regulations, 1995, will be eligible for the sameas per the terms and conditions of the said Regulations.(viii) All India Bank Officers' Confederation sent a CircularNo.43 to all the affiliates/members dated 2nd July, 2005 "Dearness Relief on basic pension computed as aboveshall be at rates as given in Annexure – III to thisCircular."7.The relevant portions from the decisions cited before usare as follows:(a)AIR 1969 SC 1306 (cited supra)Article 226 provides that every High Court shallhave power to issue to any person or authority orders andwrits including writs in the nature of habeas corpus,mandamus etc., or any of them for the enforcement of anyof the rights conferred by Part III of the Constitutionand for any other purpose. But it is well understood thata mandamus lies to secure the performance of a public orstatutory duty in the performance of which the one whoapplies for it has a sufficient legal interest....Therefore, the condition precedent for the issue ofmandamus is that there is in one claiming it a legalright to the performance of a legal duty by one againstwhom it is sought. An order of mandamus is, in form, acommand directed to a person, corporation or an inferiortribunal requiring him or them to do a particular thingtherein specified which appertains to his or their officeand is in the nature of a public duty. It is, however,not necessary that the person or the authority on whomthe statutory duty is imposed need be a public officialor an official body. https://hcservices.ecourts.gov.in/hcservices/ (b) 1999 3 LLN 310 (cited supra)Constitution of India, Art.226- Bharat Overseas BankEmployees' (Pension) Regulations, 1995 – Writ-petitioners/appellants filing writ petition claimingpension, arrears of basic pay and dearness allowance – Alearned Single Judge holding the writ petitionmaintainable but dismissing their claims – Hence thesewrit appeals – The principal question is whether writpetitions against the respondent private bank ismaintainable at the instance of the employees of the bankclaiming pension, etc. - After analysing thepronouncements in a number of decisions of the SupremeCourt and of the Division Benches of High Court, theCourt held that the appellants have no alternative orefficacious remedy except to invoke the writ jurisdictionof High Court – Right of pension is a matter oflivelihood – Denial of such livelihood definitely offendsthe Constitution and this situation is monstrous inrespect of retirees who lead a frugal life – Order oflearned Single Judge holding in writ petitionmaintainable affirmed. From the above discussion, several principles weredistilled, the relevant ones for this case are:(1) .......(2) .........(3) ............(4)......(5).........(6) The framework of service regulations made in theappropriate rules or regulations should be consistentwith and subject to the same public law, principles andlimitations.(7) ......(8) ...........(9)......(10) The instrumentality, agency or person must havean element of authority or ability to effect therelations with its employees or public by virtue of power https://hcservices.ecourts.gov.in/hcservices/ vested in it by law, memorandum of association or bye-laws or articles of association.(11) The instrumentality, agency or person rendersan element of public service and is accountable to healthand strength of the workers, men and women, adequatemeans of livelihood, the security for payment of livingwages, reasonable conditions of work, decent standard oflife and opportunity to enjoy full leisure and social andcultural activities to the workman.(12) ...............(13) If the exercise of the power is arbitrary,unjust and unfair, the public authority, instrumentality,agency or the person acting in public interest, though inthe field of private law, is not free to prescribe anyunconstitutional conditions or limitations in theiractions."The Division Bench held that the writ petition wasmainatainable against the Bank in the facts and circumstances.(c)In W.P.No.32502 of 2003 dated 26-11-2008 which wasagainst the same respondent, the learned Single Judge held that thewrit was maintainable. The following two paragraphs are relevant."35. By analysis of the above decisions, it emergesthat powers under Art.226 of Constitution is very wideand powers are to be exercised by applying Constitutionalprovisions and if there is violation of fundamentalrights or statutory provisions or arbitrariness indischarging the public duty when there is public lawelement involved. Of course, in the matter of employmentof workers by private companies on the basis of contractsentered between them, Court's have been reluctant toexercise power of judicial review and whenever powerswere exercised as against the private employers it wassolely done based on public law element involved therein.36.In the present case, it is the case of paymentof Pension to number of employees. Payment of Pension isnot a bounty payable on the sweet will of the employer.As held by the Apex Court, it is the proprietary rightunder Art.31(1) and 19(1)(f) of Constitution. It is themeasure of social security. Though Pension is oftendescribed as deferred portion of compensation over thepast service, it is in fact in the nature of socialsecurity plan to provide for evening life ofsuperannuated employee. Such social security plan are https://hcservices.ecourts.gov.in/hcservices/ concerned with socio-economic requirements of theConstitution."(d) 2004 SCC L&S 214 (cited supra)"Conditions of service – Alteration of – Held, cannotbe altered to the disadvantage of the employees byreducing their pay scales or withdrawing any servicebenefit – But there is no bar to offer such employeesbetter prospects – .. – There cannot be two types of payscales, one for the purpose of continuing in service up tothe age of retirement and the other for the period between58 and 60 years – Pension is not a bounty but a hard-earned benefit for long service, which cannot be takenaway – Electricity (Supply) Act, 1948, S.60"(e) 2005 WLR 820 (cited supra)22. When the above consistent ratio of the Hon'bleSupreme Court as well that of the English cases areapplied to the case on hand, we have no hesitation inholding that the interpretation made by us in the earlierparagraphs of the order would alone achieve the object andpurport of the Regulation especially when the petitionerhad put in as many as 14 years, 9 months and 17 days andby construing his last spell of employment of 9 months and17 days as one full year, he would be well within hisrights to claim pension as provided under the amendedRegulation 28 of the Indian Bank Voluntary Employees'Pension Regulations, 1995. Therefore, the contrary standof the respondent in the impugned order dated 22-3-2003 isliable to be set aside.(f) 2003 10 SCC 733 (cited supra)"Private companies would normally not be amenable tothe writ jurisdiction under Article 226 of theConstitution. But in certain circumstances a writ mayissue to such private bodies or persons as there may bestatutes which need to be complied with by all concernedincluding the private companies. For example, there arecertain legislations like the Industrial Disputes Act, theMinimum Wages Act the Factories Act or for maintainingproper environment say Air (Prevention and Control ofPollution) Act, 1981 or Water (Prevention and Control ofPollution) Act, 1974 etc. or statutes of the like naturewhich fasten certain duties and responsibilitiesstatutorily upon such private bodies which they are boundto comply with. If they violate such a statutory provisiona writ would certainly be issued for compliance of those https://hcservices.ecourts.gov.in/hcservices/ provisions. For instance, if a private employer dispensewith the service of its employee in violation of theprovisions contained under the Industrial Disputes Act, ininnumerable cases the High Court interfered and haveissued the writ to the private bodies and the companies inthat regard. But the difficulty in issuing a writ mayarise where there may not be any non-compliance orviolation of any statutory provision by the private body.In that event a writ may not be issued at all. Otherremedies, as may be available, may have to be resorted to.Merely because the Reserve Bank of India lays thebanking policy in the interest of the banking system or inthe interest of monetary stability or sound economicgrowth having due regard to the interests of thedepositors etc. as provided under Section 5(c)(a) of theBanking Regulation Act does not mean that the privatecompanies carrying on the business of or commercialactivity of banking, discharge any public function orpublic duty. These are all regulatory measures applicableto those carrying on commercial activity in banking andthese companies are to act according to these provisionsfailing which certain consequences follow as indicated inthe Act itself. Provision regarding acquisition of abanking company by the Government, it may be pointed outthat any private property can be acquired by theGovernment in public interest. It is now judiciallyaccepted norm that private interest has to give way to thepublic interest. If a private property is acquired inpublic interest it does not mean that the party whoseproperty is acquired is performing or discharging anyfunction or duty of public character though it would be sofor acquiring authority.Therefore, a private companycarrying on banking business as a scheduled bank, cannotbe termed as an institution or company carrying on anystatutory or public duty."(g) MANU/TN/0056/2008 = 2008(3)LLN 320 (cited supra)"17. In the present case also, as the appellant-Bankof Madura Ltd., is a private Company, carrying on privatebanking business and not carrying on any statutory orpublic duty, no "Writ Petition" under Article 226 of theConstitution of India is maintainable against theappellant-Bank of Madura Ltd. Merely because the Bank hasmade provisions to grant "pension" on VRS, under therelevant Pension Scheme, the same cannot be a ground tohold that the Bank is performing a public duty or publicfunction. Hence, the first question is answered in the https://hcservices.ecourts.gov.in/hcservices/ negative against the respondent-Writ Petitioner and infavour of the appellant-Bank of Madura Ltd. (now ICICIBank Ltd.)."(h) 2005 6 SCC 657(cited supra)"A writ of mandamus or the remedy under Article 226is pre-eminently a public law remedy and it is availableagainst a body or person performing a public law functionand is not generally available as a remedy againstprivate wrongs. It is used for enforcement of variousrights of the public or to compel public/statutoryauthorities to discharge their duties and to act withintheir bounds. It may be used to do justice when there iswrongful exercise of power or a refusal to performduties. This writ is admirably equipped to serve as ajudicial control over administrative actions. This writcan also be issued against any private body or person,specially in view of the words used in Article 226 of theConstitution. However, such private authority must bedischarging a public function and the decision sought tobe corrected or enforced must be in discharge of a publicfunction. .......There must be a public law element and it cannotbe exercised to enforce purely private contracts enteredinto between the parties. A contract would not become statutory simply becauseit is for construction of a public utility and it hasbeen awarded by a statutory body. But nevertheless it maybe noticed that the Government or Government authoritiesat all levels is increasingly employing contractualtechniques to achieve its regulatory aims. It cannot besaid that the exercise of those powers are free from thezone of judicial review and that there would be no limitsto the exercise of such powers, but in normalcircumstances, judicial review principles cannot be usedto enforce the contractual obligations. When thatcontractual power is being used for public purpose, it iscertainly amenable to judicial review. The power must beused for lawful purposes and not unreasonably."(i) 2004 3 CTC 1(cited supra)"14.In view of what is stated supra, we hold that https://hcservices.ecourts.gov.in/hcservices/ (i) only such violations under I.D. Act, which involvepublic duties, are amenable to Writ jurisdiction underArticle 226 of Constitution of India;(ii) dismissals, transfers and other matters concerning theservice conditions of employees governed by I.D. Act, haveto be adjudicated only by the forums created under the saidstatute and not otherwise;(iii) it is needless to mention that the disputes relatingto matters not governed by I.D. Act have to be resolved onlyby common law Courts;(iv) the transfers effected in these cases do not involveany public duties and involve the disputed questions of factand they should be resolved only before the forums under theI.D. Act;(v) the appellants/petitioners-employees shall be entitledto seek for reference by filing application under Section 10of the ID Act within two weeks from the date of receipt of acopy of this order;(vi) if any industrial disputes are raised, then theconcerned forums, be it Labour Court or Industrial Tribunal,shall dispose of the same within four months from the dateof receipt of the reference, after affording opportunity toeither party;(vii) without prejudice to the contentions of theappellants/petitioners-employees, one week time from thedate of receipt of a copy of this order is given to theemployees to join at the transferred places and in respectto such of those dismissed employees, for non-joining at thetransferred places, the delay is condoned if they join asstipulated above and in that event, dismissal orders passedagainst them disappear automatically; and(viii) the respondents-managements shall sympatheticallyconsider the payments of wages/salaries to theappellants/petitioners-employees so as to maintain theindustrial peace and harmony."(j)2006 1 CTC 776(cited supra)"6. .. These are all regulatory measures for thepurpose of maintaining healthy economic atmosphere in theCountry. Such regulatory measures are provided for other https://hcservices.ecourts.gov.in/hcservices/ companies also as well as industries manufacturing goodsof importance. Otherwise, these are purely privatecommercial activities. It hardly makes any difference thatsuch supervisory vigilance is kept, by the Reserve Bank ofIndia under a statute or the Central Government. ... Inthe times of normal functioning, such occasions do notarise except for routine inspections, etc., with a view tosee that things are moved smoothly in keeping with fiscalpolicies in general. Besides taking care of such interest,as mentioned above, there is no other interest of theState to control the affairs and management of the privatecompanies. Such private companies would normally not beamenable to the writ jurisdiction under Article 226 of theConstitution.10. The writ petition riled by the appellant cannothave any personal grievance in the matter and at best,only its members can have any grievance. It is wellsettled that ordinarily a writ petition can only be filedby someone who is personally aggrieved. The powers underArticle 226 of the Constitution of India should besparingly used and only in those clear cases where therights of a person have been seriously infringed and hehas no other adequate and specific remedy available tohim. The relief under Article 226 of the Constitution ofIndia is based on the existence of a right in favour of aperson invoking the writ jurisdiction. ...."8.Pension is not a matter of bounty to be disbursed at thesweet will of the employer, this is well settled. So if a person isdenied pension on arbitrary grounds, then we have no hesitation toexercise our power under Article 226 of the Constitution of India. 9.In Bharat Overseas Bank case, the Bank denied pension onsome trivial reason like there was no signature on the allotmentletter. The Court rightly intervened. Even in AIR 1969 SC 1306relied on by the Appellant, the Supreme Court has held,"6. In our view the High Court was correct in holdingthat the writ petition filed under Article 226 claimingagainst the company mandamus or an order in the nature ofmandamus was misconceived and not maintainable. The writobviously was claimed against the company and not againstthe conciliation officer in respect of any public orstatutory duty imposed on him by the Act as it was not hebut the company who sought to implement the impugnedagreement. No doubt, Article 226 provides that every HighCourt shall have power to issue to any person or authorityorders and writs including writs in the nature of habeascorpus, mandamus etc., or any of them for the enforcement https://hcservices.ecourts.gov.in/hcservices/ of any of the rights conferred by Part III of theConstitution and for any other purpose. But it is wellunderstood that a mandamus lies to secure the performanceof a public or statutory duty in the performance of whichthe one who applies for it has a sufficient legalinterest. Thus, an application for mandamus will not liefor an order of restatement to an office which isessentially of a private character nor can such anapplication be maintained to secure performance ofobligations owed by a company towards its workmen or toresolve any private dispute."10.In Federal Bank case, which was the case of anotherScheduled Bank, where it was a question of termination the SupremeCourt held that no writ will lie. This Court in 2008(3)LLN 320 =Manu/TN/0056/2008 has held that no writ will lie in a caseinvolving the same respondent and the same regulations.11.Bharat Overseas Bank case does not apply here becausethere the payment of pension was denied on the ground that theformal option letter was not attested. The Division Bench heldthat there is nothing in the whole of the scheme which evenremotely suggest that failure to secure attestation would result inautomatic rejection of the said letter. In this case, therespondent has not denied to the appellants their right to pension.They claimed to have calculated the pension by fixing the basic payat the rate at which they would have received pay, if theycontinued in BoM. The case of the respondent is that theappellants have claimed pension on the basis of the ICICI basicsalary together with the appropriate dearness relief though in therevised salary which they receive in ICICI, the dearness allowancehas got merged. According to the respondent they cannot receivethe ICICI basic pay in which dearness allowance has got merged forone purpose and then claim dearness allowance separately forobtaining pension. According to the respondent, they have in factworked out the calculation and made their payments to theappellants as per the method which would be more advantageous tothem. As regards the maintainability, the judgment in Federal Bankclears covers the issue. In fact, there it was the case oftermination and yet, the Supreme Court held that the writ will notlie and the relevant paragraphs have already been extracted. Wehave already stated that Bharat Overseas Bank will not apply tothis case since there the entire pension was denied arbitrarily. 12. This Court in Ananda Sayanan Vs. Joint Registrar,Co-operative Societies (2007 (5) CTC 1 (FB)) has held as follows:"14. Every illegal order of suspension ortermination will not ipso facto amount to violation ofArticle 21. But there may be certain circumstances, as in https://hcservices.ecourts.gov.in/hcservices/ a case of exclusion of an employee affected by HIV AIDSor an employee who has been rendered immobile by anaccident or cases where the rights of huge number ofemployees are involved or where their very existence isjeopardized, where the employee may justifiably invokeArticle 21 of the Constitution and seek protection byfiling a writ petition. But every case of suspension ordeprivation of wages for a period or termination will notentitle the employee of a co-operative society to movethe writ Court and contend that the right of protectionunder Article 21 has been violated. The employees haveadequate statutory protection in law....16. For every alleged or imagined invasion of hisrights, an employee of a co-operative society cannot movethe writ court on the ground that his rights underArticle 21 have been infringed. The effect of the SupremeCourt cases cited in Marappan's case (cited supra) andthe propositions set down in Marappan's case (citedsupra) cannot be set at naught merely by mentioningArticle 21, even if the order is illegal.17. Again, as held by the Supreme Court in RajaMahendra Pal's case (cited supra), Article 21 whileincluding of attributes of life cannot be extended to theextent that all sorts of claim relating to legal orcontractual rights could be brought within its ambitignoring the person aggrieved and the nature of the rightviolated. Though the cases cited may not involve a co-operative society, the above position applies to thepresent case a fortiori. The cases where Supreme Courthad invoked Article 21 as in Narendra Kumar Chandla'scase (cited supra) or Konavalov's case (cited supra) werenot grievances of an ordinary nature or a routine nature,as we have seen. 18. Therefore, every order affecting the service ofa workman would not automatically amount to aninfringement of his right under Article 21 enabling himto move the writ court. We cannot ignore the settledposition that applications to secure performance ofobligations owed by a Government or a society towards itsemployees or to resolve any private dispute cannot bedecided on the basis of the Article 21. The appellantherein may perhaps have a good case on other grounds. Butthe order of suspension suspending him from the post ofSecretary does not amount to infringement of Article 21and while the decision in the judgment of the DivisionBench in The Nazarath Urban Co-operative Bank Ltd.'s case(cited supra) may be right on the facts of that case, theobservations made regarding the application of Article 21need to be and are clarified as above. The mere fact that https://hcservices.ecourts.gov.in/hcservices/ he was kept under suspension beyond one year without theapproval of the Registrar cannot be said to violateArticle 21. It must be seen whether the invocation ofArticle 21 is justified in the particular case andwhether the order challenged by a workman of a co-operative society is of such a nature that it would trulytake away his right under Article 21 of the Constitutionand that it is taken away otherwise than by due processof law." 13.In 2003 (10) SCC 733 (cited supra) it has been held thatprivate companies would not normally be subject to writjurisdiction except where they failed to comply with duties andresponsibilities imposed on them statutorily as for instance, theMinimum Wages Act or the Factories Act, etc. The Supreme Court hasexpressed that there would be difficulty in issuing a writ wherethere is no failure to comply with nor is there a violation of thestatutory provision of the private body and it is specificallystated that merely because the RBI lays the banking policy does notautomatically mean that private companies carrying on the businessor commercial activity of banking, discharge any public function orpublic duty. Further it was held that they are not institutionscarrying on any statutory or public duty. This has been followedin Lakshmi Narayanan's case in which the present respondent is aparty and in the judgment of the Full Bench(2004(3) CTC 1) referredto above, it is held that every case of suspension or terminationwill not entitle the employee of the co-operative society to movethe Court contending that the protection of Article 21 has beenviolated. 14.In the present case, both the parties referred toRegulations, Schemes and Agreements. There are major differenceson facts. According to the appellants, their right to receivedearness allowance on retirement has not been touched by any of theagreements, whereas according to the respondents, there was asettlement between the parties that dearness allowance would bemerged and after a while there would not be any separate dearnessallowance component and it would cease to exist separately and thatwhen the appellants had agreed that the dearness allowance would bemerged with the basic pay they cannot now urge that when it comesto payment of pension the right to dearness allowance would againrevive. 15.Reference to 2005 Indian Banks' Association PensionFitment Chart also does not help the appellants since according tothe respondents the bank's name that BoM does not find a place inthe list of 17 A Private Sector Banks and the Bank of Madura hasadopted the industrial level settlements and understandings as and https://hcservices.ecourts.gov.in/hcservices/ when they are finalised and that industrial level understanding isnot automatically applicable to the employees of BoM and it wasalso agreed between the parties that the component structure andservice conditions in ICICI are quite different from IBA and thatitself had a higher package and therefore, a change to this packagewill be only after mutual discussions and agreement, irrespectiveof any present or future IBA settlements. The relevant paragraphshave already been extracted above.The calculation of pension is asper the agreements between the parties, the schemes of settlementsentered into between them and contractual in nature and therefore,they cannot invoke Article 226 of the Constitution of India. 16.It is not the right of pension which is denied. It isthe mode of calculation which is disputed. It is seen from thematerials available that the respondents have agreed to pay pensionto the erstwhile BoM employees, though the ICICI employeesthemselves are not entitled to pension. According to therespondents, had the petitioners continued as BoM employees thenthey would have got their pension on the basis of the basic paypayable to them at BoM together with dearness allowance.Therefore, the terms on which pension has been paid cannot be saidto be less favourable to them than what they were entitled tobefore the amalgamation. After amalgamation, the basic pay gotenhanced because dearness allowance was merged with it. To thisbasic pay, which includes the dearness allowance component, theappellants want to again add the dearness allowance and therespondents state that is not what was agreed upon. Even if theappellants are right, without assuming it to be so, it may at bestbe a breach of the terms of agreement. Therefore, we are unable toaccept the case of the appellant that a public duty was violated.If pension was totally denied it may have been a different issue. 17.In 2008 AIR SCW 6886 = 2008 (11) SCC 591(Videsh SancharNigam Ltd., & Anr. Vs. Ajit Kumar Kar & Ors.) an almost identicalquestion arose. The respondents are the retirees of the OverseasCommunication Service, Department of Telecommunications. This wasconverted into a Government Company, viz., "Videsh Sanchar NigamLtd.,". By a circular, the Government informed its decisionregarding the manner in which Pension and other benefits would bedetermined. There were two pay scales. A letter issued by theGovernment also showed the Fitment Method by which the basic payplus Central dearness allowance was merged in the basic pay to befixed in the appropriate stage in VSNL. The retired employees filedthe writ petition before the High Court of Calcutta. The writpetition was allowed as prayed for and the appeal was alsodismissed by the Division Bench. It was contended that sincepension is a right and not a bounty available to the retiredemployees and DR being a part of pension, right to receive the samecould not have been denied merely because the incumbent opted forIDA pay scale. The Supreme Court gave its opinion on the various https://hcservices.ecourts.gov.in/hcservices/ questions raised by the employees, some of which are relevant forthis case. 18.The CCS Pension Rules defines the expression emolument tomean basic pay. From the facts it is seen that VSNL had originallypaid pension for some period on a wrong calculation andunderstanding of the Government Circular and thereafter theyrealized their bona fide mistake. The Supreme Court held that theGovernment of India or VSNL had not "infringed or snatched away theright of pension of the respondent retirees", the respondentretirees, therefore, cannot be held entitled to get D.A. twice thatfirst on CDA pay scale and then on IDA pay scale. Therefore, noquestion arose for the respondent retirees claiming the vestedright for DR as per existing pay scales which was much higher thanthat of IDA pay scales were arrived at by merger of CDA pay scalesand DR. "It is well-settled that DR is a matter of grace tothe Government Servants and not a vested right and hencea claim against the Government for the grant of suchallowance at particular rate is not justiciable. Thegrant of DR at such rates and subject to such conditionsis the prerogative of the Central Government in terms ofRule 55-A of the CCA (Pension) Rules, 1972. Rule 44 ofFR to the grant of DA imposed no duty on the State togrant it and it merely confers a power on the State togrant compassionate allowance at its own discretion andno mandamus or any other writ or direction, therefore,should be issued to compel the exercise of such a poweras there is no right in the employee which is capable ofbeing protected or enforced. [see State of M.P. V. G.C.Mandawar (AIR 1954 SC 493)].28. In this view of the matter, our conclusion onthe question of denial of Dearness Relief on pension incase of those retired employees of VSNL who have drawnpay on IDA pay scales with IDA Dearness Relief is legaland just. Therefore, the view taken by the High Court inthis regard cannot be sustained. "19.As far as we are concerned we are bound to follow FederalBank's case and not Bharat Overseas Bank's case. We are also boundby the Full Bench decision in Anantha Sayanan's case wherein it isclearly stated that against every order of termination or revisionof pay, the employee cannot contend that his right under Article 21of the Constitution of India is violated and move the Court underArticle 226 of the Constitution of India. The earlier DivisionBench in Lakshmi Narayanan's case held that a writ was notmaintainable against the same Bank. In the above referredjudgment of the Supreme Court in VSNL's case the Supreme Court held https://hcservices.ecourts.gov.in/hcservices/ that no mandamus can be issued to compel payment of dearnessallowance. Therefore, we hold that the writ is not maintainableand the writ appeal is dismissed. However, there will be no orderas to costs. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarglpTo1. The Chairman and Managing Director ICICI Bank Limited Corporate Office, ICICI Bank Tower Bandra Kurla Complex Mumbai – 400 0512. The Personal Manager HR Department ICICI Bank Limited 192, Anna Salai Chennai – 600 002.+ 1 c.c. to Mr. Balan Haridass, Advocate. S.R.No.5353.+ 1 c.c. to Mr. V. Perumal, Advocate. S.R.No.5264. W.A.No.480 of 2007RSM (CO)GSK 13.02.2009.