S.R. Singh, J.
1. In the instant petitions, which are knit together with common question of law and fact, Sri Navin Sinha, appearing for the respondents prefaced his submissions with a preliminary objection and commiserated with the Court for decision thereon before embarking upon merits of the case. The preliminary objection raised by Sri Navin Sinha is that Banaras State Bank Limited, the respondent-employer herein is not amenable to writ jurisdiction of the Court under Article 226 of the Constitution and as such the petition is liable to be dismissed on this count alone. We have accordingly heard the counsel for the parties on the preliminary objection as to the maintainability of the writ petition.
2. It brooks no dispute that Banaras State Bank Limited is a Banking Company incorporated as such under the provisions of the Banaras State Companies Act and is deemed to be a company within the meaning of the Companies Act, 1956. It does not have the complexion of a Nationalised Bank. Rather, it is only a private sector Bank in which more than 93% shares, according to the averments made in the counter affidavit, are held by private individuals and the remaining 7% shares by the Union Bank of India. For the respondents, it is canvassed by Sri Navin Sinha, Senior Advocate that the respondent Sank being neither 'State' nor 'other authority' within the meaning of Article 12 of the Constitution, does not submit itself to the writ jurisdiction of this Court. Sri K. P. Agarwal, Senior Advocate, appearing for the petitioner, in opposition to the aforesaid' submissions, submits that though Banaras State Bank Ltd. is a private company, it is amenable to writ jurisdiction under Article 226 of the Constitution inasmuch as its functions are in the nature of public functions and the employees of the Bank being its stretched arm, the petitioner has the right to approach this Court under Article 226 of the Constitution against any arbitrary action taken by the respondent Bank.
3. We have given our anxious consideration to the submissions made across the Bar. It cannot be repudiated that Article 226 of the Constitution can be invoked not only against 'State' or 'Instrumentality' of State but also against 'any person or authority' in terms of the language employed in Article 226 of the Constitution itself. The expression 'any person or authority' used in Article 226 of the Constitution embraces within its sweep and ambit not only 'State' as defined in Article 12 of the Constitution, but also every public body exercising statutory powers; every authority created by or under Statute; every non-statutory authority exercising public functions; and even an individual. The expression 'any authority' in Article 226 has been used in liberal sense. In Shri Anadi Mukta S.M.V.S.S.J.M.S. Trust v. V.R. Rudani, AIR 1989 SC 1607 : 1989 (2) SCC 691 : 1989-II-LLJ-324, the Supreme Court reiterated the same interpretation as under at p. 330 of LLJ:
'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 person 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 owned by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied'.
And finally it was held as under at pp. 330, 331 of LLJ:
'Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute commenting on the development of this law, Professor DE SMITH states : 'To be enforceble by mandamus a public duty does not necessarily have to be one imposed by statute, it may be sufficient for the duty to have been imposed by charter, common law, custom or even contract'. We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226.'
4. In Synthetics and Chemicals Ltd. v. G.C. Kumar, 1972 (25) FLR 146 it was held by a Division Bench of this Court that a mandamus may issue to a trading corporation to compel it to do its duty of a public nature. It cannot be gainsaid that ingrained in Article 226 is a public law remedy providing for judicial review of not only 'State action' but also of 'any public function' whether performed by public authority or by private body. It is not the source of power but the public nature of functions that determines the question whether the body is performing public function which, it may be observed, need not be in the exclusive domain of the State. Self-regulatory organisations and other nominally private institutions, incorporated under statute may in reality perform, some types of public functions and in exercise of their functions, they are just as capable of abusing their powers as is government.
5. In K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering, AIR 1998 SC 295 : 1997(3) SCC 571 the question regarding maintainability of writ petition under Article 226 of the Constitution as against a non aided private educational institution came up for consideration before the Hon'ble Supreme Court. The Court held that 'teachers who impart the education get an element of public interest in the performance of their duties' and finally as under at page 296 of AIR:
'We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide it would be a different position, if the remedy is a private law remedy. So they cannot be denied the same benefit, which is available to others. Accordingly, we hold that the writ petition is maintainable.'
6. The respondent Bank, it cannot be repudiated, is engaged in generating capital which is used for various developmental activities a function akin to State function. An element of public interest is necessarily involved in the functions of the employees of the respondent Bank. They cannot be denied the benefit of public law remedy i.e. judicial review of public functions envisaged under Article 226 of the Constitution a remedy, which has certain advantages over private law remedy. R. v. Pharmaceutical Society, was a case where a Society, an independent body, was held to be a public authority by virtue of the fact that some of its functions were conferred by statute and also because its disciplinary decisions could effectively destroy a pharmacist's ability to make a living. (See Article 3-032 of 'JUDICIAL REVIEW OF ADMINISTRATIVE ACTION' by DE SMITH, WOOLF and JOWELL). Article 3-047 of the same treatise highlights the point that disciplinary functions of a company incorporated under Companies Act are in the nature of public functions:
'It is possible for a statute to confer on a private body public functions and, atleast when performing those functions, the body could be subject to judicial review. Thus, for example, professional bodies which may be incorporated by Royal Charter or under the Companies Act may have statutory powers and duties conferred upon them. When exercising those functions, if they are of a public nature, they will be treated as being subject to judicial review. This is so notwithstanding the fact that the majority of their functions, perhaps apart from their disciplinary functions, are private. Where a body is incorporated by Royal Charter under the Royal Prerogative it has all the powers of a natural person. If created under a Charter pursuant to a statute, the extent of its powers depend on the statute.'
7. Article 3-049 of the treatise referred to above deals with the status of self-regulatory bodies. R. v. Panel on Takeovers and Mergers 1987 QB 851 referred therein was a case of 'an unincorporated association without legal personality' i.e. a self-regulatory body though lacking any authority de jure, but exercising immense power de facto. ILOYED L. J. having identified the obvious situation where the source of power is a statute, or subordinate 3 legislation under a statute, where the body would be subject to judicial review, and the other end of the scale where the source of power is contractual, as in the case of private arbitration, where the arbitrator is not subject to judicial review makes the point that: 'In between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may... be sufficient to bring the body within reach of judicial review.
' A body is performing a 'public function' when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies, in other words, exercise public functions when they intervene or participate in social or economic affairs in the public interest (See 'JUDICIAL REVIEW OF ADMINISTRATIVE ACTION' by DE SMITH. WOOLF and JOWELL, 5th Edn. pp. 167-195)
8. In Ram Saran v. State of U.P. 1998 3 UPLBEC 1860, this Court had an occasion to go into the tenability of the question as to maintainability of writ as against a co-operative society registered under the provisions of the, U.P. Co-operative Societies Act, 1965. The Court held therein, inter alia as under;
'A Co-operative Society registered under the Co-operative Societies Act, 1965 and the Rules made thereunder may be a private body but it certainly caters to the needs of public and the employees being the arm of the society cannot be dealt with by the society in an arbitrary manner. Absence of arbitrariness in action by bodies performing public function is a facet of Article 14 of the Constitution. Violation of Article 14 by public bodies will give rise to a cause of action under Article 226 of the Constitution.'
9. In Pukhraj Mantri v. U.P. Co-operative Spinning Mills Limited 1992 1 UPLBEC 664 the question was whether the writ petition was maintainable against the Federation - an apex society. Answering the question in the affirmative, the Court held as under:
'It is a matter of public policy that an employee of public body is governed by fair and reasonable rules of service. The right of an employee of a public institution/body to be governed on fair and reasonable terms and conditions of service is, in fact, in the nature of fundamental right and such right necessarily carries with it the right to approach this Court under Article 226 of the Constitution for an appropriate writ in the event of the public body violating the right of the employee or committing breach of its obligation to act or deal reasonably and fairly with its employees.'
10. In Praga Tools Corporation v. C.A. Imanual, AIR 1969 SC 1306 : 1969 (1) SCC 585 : 1969-I-LLJ-749, it was held at p. 754 of LLJ:
'It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue for instance, to an official of a society to compel him to carry out the terms of the statutes under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also issue against a company constituted by a statute for the purpose of fulfilling public responsibilities.'
11. In U.P. State Cooperative LandDevelopment Bank Ltd. v. Chandra BhanDubey 1999 AIR SC 753 : 1999 (1) SCC 7411999-I- LLJ-633 the Apex Court held that theextra-ordinary power of the High Court under Article 226 of the Constitution is 'as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any (other) purpose even one for which another remedy may exist'. The relevant observations made therein are quoted below at p. 644 of LLJ :
'The Constitution is not a statute. It is a fountainhead of all statues. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step into protect him, be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of Individuals, whether incorporated or not, or even an individual Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon, him.'
12. In Jagveer Singh v. Chairman Co-operative Textile Mills, 1999(2) UPLBEC 1251, a Division Bench of this Court held that a Co-operative Society is amenable to writ jurisdiction of the Court in the following words:
'The co-operative society, therefore, cannot be equated with an individual and, being engaged in various activities of public interest the co-operative societies cannot claim impunity in respect of their action vis-a-vis their employees from judicial superintendence and control of the High Court under Article 226 of the Constitution of India. In our opinion, Co-operative societies registered under the Act are as much bound as State to follow the fundamental principles of reasonableness, fairness and transparency which, under the scheme of our Constitution, are fundamental to governance of any institution. Accordingly, we are of the considered view that their co-operative societies are amenable to writ jurisdiction of this Court under Article 226 of the Constitution of India in respect of an adverse order passed against their employees irrespective of whether the action has been taken in exercise of any statutory power or in exercise of any power under any contract of service and the learned single Judge fell into error in dismissing the writ petition as not maintainable.'
13. We are of the view that the Courts, as a matter of principle, should have regard to the nature of functions being performed by the body whose decision is impugned, rather than the formal source of its power, and this should be so whether or not the body in question is ostensibly a 'public' or 'private' one in the words of S. Arrow Smith has gone a step further. According to him, 'the way forward now is for the Courts to adopt the same approach to the judicial review of contractual powers as they do to the review of other activities of the government. In other words, they should accept that these powers are reviewable as a matter of principle but that review may be negated or limited by special policy factor, rather than continue searching for some 'public law' element to the decision as the justification for applying public law doctrines to the case before them', (See DE SMITH (Supra) page 178). This exposition seems to be in tune with the jurismetrics of our Constitution. In our considered view, disciplinary action taken by a Company incorporated under Companies Act against its employees is open to judicial review under Article 226, albeit interference is permissible on limited ground of violation of Wednesbury Rule of reasonableness for disciplinary actions by bodies engaged in public functions against their employees fall in the realm of public law. A Banking company is not free to act in any manner it likes. Its activities are regulated by the provisions of the Banking Regulation Act, 1949.
14. We find ourselves unable to acquiesce to the view taken in Girish Chand Saxena v. Chief Executive, Standard Chartered Bank, 1995 All LJ 1675, Jata Shanker Misra v.Banaras State Bank Ltd. 1999-II-LLJ-1090 (All) and Emmanuel Paul Chakkola v. Catholic Syrian Bank and Ors. 1988 Company Cases (Ker) 399, reliance on which was placed by Sri Navin Sinha during the course of arguments. In Catholic Syrian Bank case, the Kerala High Court held that the petition under Article 226 of the Constitution was not maintainable, as in its opinion, the Banks therein did not come within Article 12 of the Constitution. In our opinion, the petition would be maintainable against 'any authority' even if it does not fall within the purview of Article 12 of the Constitution. In V.S.T. Industries Ltd. v. V.S. T. Workers Union 2001 (1) SCC 298 : 2001-I-LLJ-470, the quintessence of the observation made by the Apex Court is that 'A private person, or an incorporated Company cannot be taken out of the sweep and the contemplation of Article 226 of the Constitution' performing a public function or discharging a public duly. In so far as unreportcd Division Bench decisions rendered in Civil Misc. Writ Petition No. 30753 of 1992 Vijai Kumar v. General Manager Banaras State Bank Ltd. and Civil Misc. Writ Petition No. 14048 of 1995, All India Banaras State Bank Officers Association v. Managing Director, Banaras State Bank Ltd., decided respectively on November 1, 1995 and August 20, 1997 are concerned, suffice it to say that these decisions are not based on consideration of relevant authorities on the point and as such, they are liable to be ignored on the basis of doctrine of per incuriam. The objection as to maintainability of writ petition is therefore overruled.
15. Let the matter be listed for hearing on merits in the next cause list.