Hon'ble S.C. Chaurasia,J.
1.Heard Sri Yashovardhan Swarup, learned counsel for the petitioner, and Sri S.M.K. Chaudhary, learned Senior Counsel, assisted by Sri Prashant Kumar on behalf of the O.P. No.1 to 6.
2.The petitioner has approached this Court under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus commanding the respondents to frame Rules regulating transfer, promotions, appraisal and social security and other service conditions of the petitioner who is working on the post of Chief Manager Grade-2 in ICICI Bank Limited. The petitioner has also prayed for quashing of transfer order dated 12.5.2011 from Lucknow to Hyderabad a copy of which is contained in Annexure No.9 to this writ petition.
3.Preliminary objection has been raised by Sri S.M.K. Chaudhary with regard to maintainability of the writ petition.
4.It has been admitted at Bar that ICICI Bank Limited is not a Nationalized Bank. The Government lacks deep and pervasive control over it. The service conditions of employees of the Bank are managed by the Rules, Regulations and Circular orders framed by the Bank itself.
5.While assailing the impugned order of transfer it has been stated by Sri Yashovardhan Swarup, learned counsel for the petitioner that the action of the respondents to transfer the petitioner without framing Rules and Regulations, suffers from vice of arbitrariness. Hence appropriate directions may be issued to the Bank to frame Rules in this regard.
6.So far as the order with regard to transfer is concerned, now, it is settled proposition of law that transfer is an incident of service. The Court under writ jurisdiction can interfere only in case the order of transfer is passed mala fide or in violation of Rules and Regulations ordinarily, that too, with regard to service of an employees who are working in the Government or its instrumentalities. The service purely based on private nature, ordinarily, may not be amenable to writ jurisdiction.
7.Apart from the above, the transfer being an incident of service, the employees may be transferred from one place to another to meet out the exigencies of services. Once the transfer is made in exigency of service, then Courts ordinarily may not interfere with the order of transfer, vide 2003 (7) SCC 403, State of Rajasthan Vs. Anand Prakash Solanki; AIR 1993 SC 2444=1993 (4) SCC 357, Union of India Vs. S.L.Abbas; 2003 (4) SCC 104, Public Service Tribunal Bar Association Vs. State of U.P.
8.Now, coming to next limb of submission with regard to maintainability of writ petition. It is not disputed that the ICICI Bank Limited is registered under the Companies Act, 1956 but lacks governmental interference except by the Board of Directors of the Company or Company Law Board. Its employees should be abide by the directions issued by the Bank and competent authority.
9.Sri Yashovardhan Swarup, learned counsel submits that the Bank is State within the meaning of Article 12 of the Constitution, on the ground that Central Government and State Government are the shareholders in ICICI Bank and the wages are regulated by the Reserve bank of India and the Ministry of Finance. We are not inclined to accept the argument advanced by the petitioner's counsel. Merely because the Central Government and State Government are shareholders, it will not mean that the Central Government and the State Government have got deep and pervasive control over the respondent Bank.
10.It has not been disputed that it is not a Company registered under the Companies Act, 1956. Accordingly, the Government lacks deep and pervasive control over the ICICI Bank. So far as the wages are concerned the Government or the Legislature through Parliament or State Legislative Assembly may regulate the wages to protect fundamental right conferred by the Article 21 of the Constitution of India and the wages are regulated by the Government, with regard to the employees working in private companies or establishments under various statutory provisions like Payment of Wages Act, Industrial Disputes Act and so on. By regulating the wages, does not mean that the respondent Bank shall be the instrumentality of State; covered by Article 12 of the Constitution of India.
11.While dealing with the case with regard to committee of management of private Government aided colleges, a Division Bench of this Court had occasion to decide a case by the judgment and order dated 4.10.2010, passed in Writ Petition No.1452 (S/B) of 2010: Dr. S.N. Tripathi. Vs. State of U.P. and others, of which one of us (Hon'ble Devi Prasad Singh, J.) was a member. While considering catena of judgments of Hon'ble Supreme Court, the Division Bench held as under:
"10. It shall be appropriate to refer the cases relied upon by the learned standing counsel. In the case reported in (2006) 11 SCC 634:S.S. Rana. Vs. Registrar, Cooperative Societies and another, their lordships relied upon the judgment reported in (2002) 5 SCC 111: Pradeep Kumar Biswas. Vs. Indian Institute of Chemical Biology, and proceeded to observe that unless deep, pervasive and functional control of the State over the Society exist, an institution cannot be held as 'State' within the meaning of Article 12 of the Constitution of India.
11. In one other case reported in (2007) 15 SCC 136: Lieutenant Governor of Delhi and others. Vs. V.K. Sodhi and others, Hon'ble Supreme Court reiterated the aforesaid proposition of law and observed that State Council of Education, Research and Training (SCERT) is not 'State' within the meaning of Article 12 of the Constitution of India hence writ petition shall not be maintainable. Hon'ble Supreme Court has taken note of the fact that SCERT is wholly funded by the Government with regard to salary and emoluments of its employees but it shall not be 'State' within the meaning of Article 12 of the Constitution of India being not under the functional control of the State Government. Relevant portion from the judgment of aforesaid case of V.K. Sodhi (supra), are reproduced as under:
"15. The Council was to be fully financed by the Government and the funds of the Council was to consist of grants made by the Administration of Delhi/Delhi State and Government of India for the furtherance of the objects of the Council, contributions from other sources, income from assets and publication of the Council and receipt of the Council from other sources. The accounts had to be audited annually by Chartered Accountants and to be approved by the Annual General Meeting of the Council. The State Government had no role to play on the administration of the Council or in the working of the Council or over its finances, once the grant was made.
18.The majority in Pradeep Kumar Biswas also noticed that on a winding up of that Council, the entire assets were to vest in the Central Government and that was also a relevant indication. Their Lordships in the majority also specifically overruled as a legal principle that a Society registered under the Societies Registration Act or a company incorporated under the Companies Act, is by that reason alone excluded from the concept of State under Article 12 of the Constitution.
19.In the case of SCERT, in addition to the operational autonomy of the Executive Committee, it could also amend its bye-laws subject to the provisions of the Delhi (sic) Societies Registration Act though with the previous concurrence of the Government of Delhi and that the proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, the liabilities and assets are to be taken over at book value by the Government of Delhi which had to appoint a liquidator for completing the dissolution of the Body. The creditors' loans and other liabilities of SCERT shall have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the Government."
13. In the case reported in (2010) 4 SCC 378: Dalco Engineering Private Limited. Vs. Satish Prabhakar Padhye and others, Hon'ble Supreme Court has considered the cases referred to hereinabove. Their lordships held that Corporation established by or under an Act, have got different meaning. In case corporation or body is established by an Act, necessarily, it shall be 'State' within the meaning of Article 12 of the Constitution of India but the establishment of a body under the Act shall not be necessary under Article 12 of the Constitution of India. Relevant portion of the judgment of Dalco Engg. (P) Ltd., (supra) is reproduced as under:
"21. The Where the definition of "establishment" uses the term "a corporation established by or under an Act", the emphasis should be on the word "established" in addition to the word "by or under". The word "established" refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between "established by a Central Act" and "established under a Central Act"?
14. Considering the judgment of Hon'ble Supreme Court in the present context, it may be noted that the general body of the committee of management frames its bye-laws to constitute the committee of management and manage the affairs of the society, and the Government has got no say at all, to interfere with the day-to-day functioning of the society. Every office bearer of the committee of management owes its responsibility in pursuance of the bye-laws of the society and not in pursuance of any statutory provisions. The committee of management discharges its obligations to run the College without any interference of the State Government. The society has got option to close the institution or further extension in pursuance of the resolution of the general body of the committee of management as provided by the bye-laws. In a welfare state, the payment of salary by the State Government to the College receiving grant-in-aid does not mean that the Government has got deep and pervasive control over the College managed by the society. Accordingly, we are of the view that a Government added private society constituted under the Societies Registration Act, shall not be 'State' within the meaning of Article 12 of the Constitution of India. Hence the writ petition is not maintainable."
12.In view of settled proposition of law, the respondent Bank does not seem to be a State within the meaning of Article 12 of the Constitution of India. Accordingly, the writ petition seems to be not maintainable.
13.It is settled proposition of law that a writ of mandamus may be issued under writ jurisdiction in case there is violation of statutory provisions or there is violation of statutory duty by the authority. Ordinarily, writ of certiorari may not be issued against the order passed by the private bodies like respondent Bank but a mandamus may be issued to discharge statutory obligation in public interest. In the present case, nothing has been brought on record to satisfy the Court that some statutory duty may be cast upon the respondents or the petitioner possesses some statutory right and for whose enforcement this Court may interfere under Article 226 of the Constitution of India to issue a writ of mandamus to discharge their statutory obligations.
14.In view of the above, the writ petition seems to be not maintainable. The writ petition is dismissed with liberty to the petitioner to approach appropriate forum to ventilate his grievance. It is clarified that we have not entered into the merit of the case.