Orissa High Court
*** vs Union Of India on 20 January, 2025
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.32402 of 2022
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
Odisha Gramya Bank
Business Correspondents Association
(OGBBCA),
Represented through
The General Secretary,
Sri Pravakar Barik
Son of Prafulla Barik
Of Bhaskarganj (A), Sailesh Lane
P.O./P.S.: Balasore
District: Balasore. … Petitioner
-VERSUS-
1. Union of India
Represented through
The Secretary
Ministry of Finance
Central Secretariat, New Delhi.
2. National Bank for Agriculture and
Rural Development
Represented through
Chairman, 2nd Floor, D-Wing
C/24, G-Block, Bandra, Kurla
Mumbai, Mahatrastra.
3. Indian Overseas Bank
Represented through
Chairman.
W.P.(C) No.32402 of 2022 Page 1 of 130
4. The Board of Directors
Odisha Gramya Bank
Kokila Residency, Ananta Vihar
Pokhoriput, Bhubaneswar
District: Khurda.
5. Odisha Gramya Bank
Represented through
Chairman
Kokila Residency, Ananta Vihar,
Pokhoriput, Bhubaneswar
District: Khurda.
6. The Dy. Chief Labour Commissioner (C)
Plot No.N.7/6-7, IRC Village
Behind ISKCON Temple
Nayapalli, Bhubaneswar. … Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Debendra Mohanta and
Sitaram Jena, AdvocatesFor the Opposite party : Mr. Prasanna Kumar Parhi,
No.1 Deputy Solicitor General of IndiaFor the Opposite party : Mr. Aurovinda Mohanty,
No.3 AdvocateFor the Opposite party : Mr. Manoj Kumar Mishra,
Nos.4 and 5 Senior Advocate
Assisted by
Tanmay Mishra and
Roopam Mishra, AdvocatesP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANW.P.(C) No.32402 of 2022 Page 2 of 130
Date of Hearing : 30.09.2024 :: Date of Judgment : 20.01.2025J UDGMENT
Assailed in this writ petition is the “Request for
Proposal for Selection of Corporate Business
Correspondent with End-to-End Financial Inclusion
with Technology” having Reference No.RFP/FID/02/
22-23, dated 01.11.2022 of the Financial Inclusion
Department, Head Office of the Odisha Gramya Bank
(Annexure-9).
1.1. The petitioner, challenging the proposed decision of
the Odisha Gramya Bank (opposite party No.5) to
change the status of the Banking Correspondent
Agents beseeches intervention of this Court invoking
extraordinary jurisdiction under Articles 226 and 227
of the Constitution of India with the following
prayer(s):
“Under the circumstances, it is prayed that this Hon‟ble
Court may be graciously pleased to issue a writ or writs
the nature of writ of certiorari quashing Annexure-9
declaring the same as illegal, arbitrary and against the
settle position of law.
Further this Hon‟ble Court may be graciously pleased to
direct the opposite party No.5 to treat the BCAs named
in Annexure-1 as the regular employees of the opposite
party No.5 Bank and consequently advance ail service
benefits applicable to the employees of the Bank.
W.P.(C) No.32402 of 2022 Page 3 of 130
And pass any other order or orders as would deem fit
and proper.
Further, this Hon‟ble Court may be graciously pleased
to quash the SOP under Annexure-11 and declare the
same as illegal, arbitrary, unreasonable and against
the Order of this Hon‟ble Court dated 02.12.2022.
And for which act of kindness, the Petitioners shall as
in duty bound ever pray.”
Facts:
2. The Odisha Gramya Bank and the Utkal Gramya
Bank, established under the aegis of the Indian
Overseas Bank and the State Bank of India
respectively, in view of the Regional Rural Banks Act,
1976, have distinct area of operation.
2.1. In pursuance of Guidelines vide RBI/2010-
11/2017/DBOD No.BL.BC. 43/22.01.009/2010-11,
dated 28.09.2010 issued by the Reserve Bank of India,
the Odisha Gramya Bank (for convenience opposite
party Nos.4 and 5 are referred to as “OGB”) desirous of
expanding its banking operation extensively entered
into Agreement (sample copy of which is placed at
Annexure-2) with Business Correspondent/Business
Facilitator (BC/BF), Clause 11 whereof indicated that
the validity period of such agreement would be for one
year from the date of execution subject to renewal for
further period(s) on mutual consent with rider to
W.P.(C) No.32402 of 2022 Page 4 of 130
terminate available with the Bank as well as the
BC/BF giving a month’s notice in writing to the other
party.
2.2. Since this activity of the Bank is partially related to
delivery of financial services, the said services have
been brought under the Finance Ministry as Financial
Inclusion Personnel (in short, “FIP”). Accordingly, the
Odisha Gramya Bank in consonance with the
prescribed Guidelines issued vide Circular dated
31.08.2013 indicating the Operational Procedure for
Banking Correspondent Agents (“BCA” for short) and
Ultra Small Branches. In the said Circular inter alia it
provided for the remuneration to the BCAs.
Periodically the Bank has been issuing additional
works to be undertaken by the BCA as per the
schemes introduced by the Government at different
point of time for being undertaken by the Regional
Rural Banks.
2.3. While such was the position, the OGB changed the
fixed commission structure and also other service
conditions. For which the BCAs through the petitioner
gave a notice of strike specifying the demands with
copies to all concerned including said Bank on
11.03:2022, to which reply in Letter dated 21.03.2022
was furnished stating that the petitioner has no locus
W.P.(C) No.32402 of 2022 Page 5 of 130
standi to go for strike inasmuch as it is clarified in
Letter No.HO/FI/887/2022, dated 25.03.2022 that
there being no employer-employee relationship, BCs
are paid only commission, but not wages or salary.
2.4. The Regional, Labour Commissioner (Central),
Bhubaneswar vide Letter in File No.7(03)/2022-B-II,
dated 14.06.2022 submitted report to the Government
of India, Ministry of Labour and Employment, New
Delhi under Section 12(4) of the Industrial Disputes
Act, 1947 (“ID Act”, for brevity) indicating that
conciliation proceeding got ended in failure and
suggestion was made by the parties for reference of the
matter under Section 10A ibid. for arbitration. The
Appropriate Government, thereby, have referred the
matter to the Central Government Industrial Tribunal
and the same got registered as ID Case No.34 of 2022
for adjudication, which is stated to be pending.
2.5. The issue as to the employer and employee
relationship is concerned it is claimed by the petitioner
that the OGB having engaged the BCA is to function
under the direct control and supervision of the Bank.
2.6. While such was the position, the petitioner stated to
have could come to know that the OGB sought to put
in place proposal for selection of Corporate Business
Correspondent with End-to-End Financial Inclusion
W.P.(C) No.32402 of 2022 Page 6 of 130
with Technology vide Request for Proposal bearing RFP
Reference No.RFP/ FID/02/22-23, dated on
01.11.2022 (Annexure-9) (for convenience be referred
to as “RFP”), whereby the successful bidder is required
to deploy BCA on same terms and conditions at the
locations as per the roadmap given by the Reserve
Bank of India/DFS/SLBC/State Government.
2.7. Apprehending that by virtue of such RFP the OGB
would change the condition of service of the BCA
during the pendency of the adjudication of the dispute
referred to the Central Government Industrial
Tribunal, the petitioner seeks to question the policy of
the OGB by way of the instant writ petition on the
grounds inter alia that in absence of express
permission of the authority before which the
proceeding is pending as contemplated under Section
33 of the ID Act in writing, the OGB needs to be
restrained from implementing RFP.
Response of the opposite party Nos.4 and 5-OGB:
3. The scope and ambit of BC has been explained by the
OGB in its counter affidavit as follows:
“i) The Bank has floated RFP for selection of
Corporate Business Correspondent with End-to-
End Financial inclusion technology along with
daily deposit technology vide RFP Reference No.
W.P.(C) No.32402 of 2022 Page 7 of 130
RFP/FID/02/22-23 on 01.11.2022 as per the
approval of Board of Directors of the Bank.
Presently the Business Correspondent Agents are
engaged and managed by Bank. However as the
number of BCs are growing it is not possible on
part of the Bank to manage the same due to
shortage of manpower. Also the cost of technology
is also increasing day by day. The above RFP
shall entrust the engagement and management of
the business correspondents to the selected bidder
along with FI technology and Daily Deposit
technology.
ii) The business correspondents had on earlier
occasion called for strike under the banner of
“Odisha Gramya Bank Business Correspondents
Association” vide their Letter No.
OGBBCA/2022/36, dated 11.03.2022 for
fulfilment of various demands. The matter was put
up before Regional Labour Commissioner for
Conciliation proceeding on 25.03.2022 and
11.04.2022. The Conciliation Proceeding ended in
failure and the same was recorded vide Letter
dated 14.06.2022. The matter is now pending
before the Central Government Industrial Tribunal-
cum-Labour Court, Bhubaneswar.
iii) The Financial Inclusion through Business
Correspondents has two parts:
a) Financial Inclusion Technology;
b) Business Correspondents management.
a) Financial Inclusion Technology:
W.P.(C) No.32402 of 2022 Page 8 of 130
The Bank started the use of Micro ATM
devices for financial inclusion from 2015
onwards. The Micro-ATM devices were given
to BCs by the Bank for doing financial
transaction like withdrawal, deposit and
fund transfer. The Micro ATM services are
available for customers of Bank as well as
customers of other Banks and financial
institutions. The technology service for Micro
ATM devises, Financial Inclusion servers and
FI gateway are being provided by M/s Atyati
Technology Pvt. Ltd. The AMC for the
technology service by M/s Atyati Technology
Pvt. Ltd. was valid up to 31.12.2022. The
servers used for this puipose are old, it
needs replacement. Bank in its present RFP
vide RFP no. RFP/FID/02/22-23 on dated
01.11.2022 has sought bids from vendors
who shall provide FI (Financial inclusion)
servers and FI gateway as an End-to-End
solution. If the Bank is not allowed to finalize
the RFP then the Bank may not be in a
position to provide Micro ATM services from
31.12.2022 onwards as the AMC has
already expired. Moreover renewal of AMC
for longer time shall not be fruitful as the FI
servers are not having adequate space and
too old to handle the huge micro ATM
transactions. The replacement of the servers
will put a huge cost burden on the Bank.
b) Business Correspondents Management:
At present the business correspondents are
managed by Bank. This includes
W.P.(C) No.32402 of 2022 Page 9 of 130
engagement of new BCs, checking of their
daily work, allotment of targets, training,
implementation of Govt. directives etc. The
Corporate BC model has been implemented
by all most all Banks which is approved by
RBI and NABARD. The implementation of
Corporate BC model not only helps the Bank
in better management of Business
correspondent agents but also assists the
Bank for better implementation of Govt.
schemes and technological initiatives. The
present RFP includes implementation of
Corporate Business Correspondent with end
to end FI Technology i.e. the vendor selected
will provide technology and BC management
as a service. The Hon’ble High Court has
directed that status quo as on date with
regard to service of the petitioner shall be
maintained till next date. At present the
engagement of BCs are done by the Bank by
an agreement for one year, which are
renewable for further period depending on
satisfactory performance.
c) Bank signed the service Level agreement
with M/s. Atyati Technology Pvt. Ltd on
24.06.2016. The scope of work includes the
supply of financial inclusion project solution
and supply of hardware like Servers, Micro
ATM, PIN Pads, HSM etc. Including required
licenses. The AMC for financial inclusion
project solution has expired on 31-12-2020
and was further renewed from time to time
and the last one was valid up to 31.12.2022.
W.P.(C) No.32402 of 2022 Page 10 of 130
d) The AMC for Micro ATM device has expired
on 31.12.2021. So the Bank has considered
for floating of this RFP for Corporate BCA for
overall BC management and FI technology.
e) After getting guidance from our sponsor Bank
i.e. Indian Overseas Bank, Odisha Gramya
Bank floated the RFP for the same on
01.11.2022.
f) The vendor M/s Atyati Technology Pvt. Ltd
had informed the Bank on 29.07.2022 that
there is critical space issue in the FI server at
Banks DC and DR.
g) Bank had prepared the RTF and get it duly
vetted by IDRBT. For the said time (i.e. till
implementation of Corporate BCA) Bank had
arranged the servers used by its IT
department to be used by FI technology
implementation for providing uninterrupted
service to the rural customers.
h) However the above said arrangement will be
available for FI gateway for temporary period
only. As the AMC for Micro ATM device is
already over and the FI servers are to be
replaced, the selection of vendor through RPF
is essentially required for continuation of FI
project to extend the service to rural
customers in the unbanked area.
i) The number of transaction through micro
ATM stood at around 27 lakh with
transaction value of Rs.842 crore. If the FI
project is stopped due to non selection of
W.P.(C) No.32402 of 2022 Page 11 of 130
vendor through RFP, then rural customers of
around 7500 villages in 13 district of Odisha
will be deprived of financial services.”
3.1. Refuting the contention of the petitioner that there
exists employer-employee relationship, it is asserted
that since ID Case No.34 of 2022 is pending before the
Central Government Industrial Tribunal,
Bhubaneswar, consequent upon failure of the
conciliation proceeding, the BCA is treated as
“individual business entity” like proprietorship
concern. It is, therefore, affirmed that the requirement
of Section 33 of the ID Act is redundant and
unwarrnted.
Rejoinder affidavit in reply to the contention of the
opposite parties:
4. It is impressed upon by the petitioner that the new
policy would be frustrated for the following reasons:
“I. Banking and financial services are essentially
„pull‟ products that are „sought out‟ and like postal
services have to be accessible at affordable cost.
Banking and financial services should not be
„pushed‟ towards or at the customer, unlike other
goods sold by retail agents. Companies may, in
the interest of revenue maximization, use their
resources and wide distribution network to push
banking and financial products, unmindful of
whether they are suitable or appropriate for suchW.P.(C) No.32402 of 2022 Page 12 of 130
persons. In other words, there are concerns of mis-
selling of banking products especially amongst
uninformed and illiterate consumers.
II. A retail agent of a corporate may tend to provide
banking services only to those customers who
patronize the Corporate‟s products as that would
enhance his earnings– this represents a conflict
of interest.
III. Corporate BCs could misuse customer related
information for their own commercial interests.
IV. Unfair coercive practices by corporate agents for
marketing the financial products/recovery of loans
etc. would lead to reputation risks for the banks
that have appointed them, besides affecting the
confidence of the public in the banking system.
V. In case the corporate shrinks its business
requiring it to discontinue its retail, it may become
difficult for banks to find immediate
replacement/substitution of the BC thereby
affecting continuity in services. In case of
appointment of individuals directly as BCs, the
impact of one agent discontinuing business may
not be significant.”
Hearing:
5. Pleadings being complete and exchanged amongst
counsel for the respective parties, on consent this
matter is taken up for final hearing at the stage of
admission.
W.P.(C) No.32402 of 2022 Page 13 of 130
5.1. At the outset, the learned counsel for the petitioner Sri
Debendra Mohanta, though was given option to
pursue his remedy before the Central Government
Industrial Tribunal, Bhubaneswar in ID Case No.34 of
2022 registered on submission of the report by the
Regional Labour Commissioner (Central),
Bhubaneswar on the failure of conciliation to the
Ministry of Labour and Employment under Section
10A of the ID Act, he insisted for a decision of this
Court in the present writ petition, being conscious of
the fact that observations made herein would bind the
parties.
5.2. Heard Sri Debendra Mohanta, learned Advocate for the
petitioner and Sri Manoj Kumar Mishra, learned
Senior Advocate assisted by Sri Tanmay Mishra,
learned Advocate for the opposite party Nos.4 and 5.
Rival contentions and submissions:
6. Sri Debendra Mohanta, learned Advocate vehemently
opposing the introduction of system of Corporate
Business Correspondent in place of BCA would submit
that the RFP would be pitted against the Guidelines
envisioned in Master Circular dated 01.07.2014 issued
by the Reserve Bank of India which sought to engage
Business Facilitator/Business Correspondent. He
essentially submitted that introduction of new set of
W.P.(C) No.32402 of 2022 Page 14 of 130
Corporate Business Correspondent would frustrate the
very objective of the Guidelines/Policy by virtue of
which BC was engaged. The BC model being integral
part of banking activities ensuring greater financial
inclusion, to do away with such a pious policy would
be detrimental to the very existence of the banking
business of OGB.
6.1. Contending that implementation of Corporate
Business Correspondent model by RFP during the
pendency of Industrial Dispute Case No.34 of 2022
before the Central Government Industrial Tribunal in
absence of necessary permission to change the
condition of service would tantamount to flagrant
violation of mandatory requirement contemplated
under sub-section (2) of Section 33 of the ID Act.
Therefore, valiant attempt has been made to urge that
the introduction of RFP is required to be nipped in the
bud.
6.2. Placing reliance on Jaipur Zila Sahakari Bhoomi Vikas
Bank Ltd Vrs. Ram Gopal Sharma, AIR 2002 SC 643 =
(2002) 1 SCR 284 it has been emphatically suggested
that compliance of requirement under Section 33(2) is
mandatory, failing which the contemplated action
suggested to be taken by the OGB is irrational
decision, tainted and illegal inasmuch as such a
W.P.(C) No.32402 of 2022 Page 15 of 130
provision protects employee against possible
victimisation, unfair labour practice or harassment
because of pendency of industrial dispute. Such a
safeguard enshrined under Section 33(2) of the ID Act
may save the petitioner from hardship of
unemployment.
6.3. It has further been sought to be argued by Sri
Debendra Mohanta, learned Advocate that the services
of the BC being stated to be placed under the control
of the successful bidder, but not the OGB, the same
would tantamount to change of condition of service.
Such a change is not in conformity with requirement
of Section 9A of the ID Act.
7. Sri Manoj Kumar Mishra, learned Senior Advocate
along with Sri Tanmay Mishra, learned Advocate
strenuously argued that since there existed no
employer-employee relationship between the OGB and
the BC, of course, which is subject-matter of
adjudication before the Central Government Industrial
Tribunal for the purpose of considering regularisation
in service, there is no requirement of adherence to
Section 33(2) of the ID Act. To amplify such a
contention, Sri Manoj Kumar Mishra, learned Senior
Counsel would submit that the engagement of BC is
contractual. In the Master Circular on Banking
W.P.(C) No.32402 of 2022 Page 16 of 130
Services bearing No.PMT-22/20-21, dated 03.09.2020
issued by the OGB vide Clause E thereof it is clearly
stipulated that “while engaging BCs, it is mandatory to
issue them an engagement letter, enter into an
agreement with them and obtain an indemnity from
him/her. It is also required to renew their service
period at the starting of the financial year, i.e., in the
month of April for a further period of one year subject
to satisfactory past performance. The agreement and
indemnity are required to be done as per the IBA
model BC agreement which has been duly approved by
our Board of Directors.” Clause J ibid. further clarifies
that “the services of BCs shall be discontinued by
either of the parties by giving one-month notice to the
counterparty.” It is submitted that the Agreement
between the OGB and the BC has not been renewed.
Therefore, the petitioner-Association has no locus
standi to espouse the cause of the individual BCs
whose period of Agreement has been lapsed.
7.1. It is put forth by learned Senior Counsel that Jaipur
Zila Sahakari Bhoomi Vikas Bank Ltd Vrs. Ram Gopal
Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284 was
rendered in the context where there was no dispute
about the petitioner being workman-employee. The
Hon’ble Supreme Court of India laid down the ruling
that permission of the Industrial Tribunal was
W.P.(C) No.32402 of 2022 Page 17 of 130
necessary concomitant for the purpose of changing the
conditions of service during pendency of dispute case.
In the present case, the factual scenario is completely
distinct and different. Referring to paragraph 6 of
Agreement dated 05.06.2020 (Annexure-2) entered
into between OBG and Pravakar Barik, BC/FC, Sri
Manoj Kumar Mishra, learned Senior Advocate urged
that the petitioner has misdirected itself by relying on
the ratio of said decision in Jaipur Zila Sahakari
Bhoomi Vikas Bank Ltd Vrs. Ram Gopal Sharma, AIR
2002 SC 643 = (2002) 1 SCR 284. Strongly opposing
the contention of Sri Debendra Mohanta, learned
Advocate, the learned Senior Counsel appearing for
the opposite party Nos.4 and 5 stated that the clauses
of Agreement read as a whole unequivocally would
lead to suggest that the BC is given option to engage
employee/workmen and it is paid commission, but not
salary or wage and therefore, BC can at no stretch of
imagination is construed to be workmen/employee of
the OGB.
7.2. While contesting the matter, objection is raised against
entertainment of the writ petition filed at the behest of
the petitioner-Odisha Gramya Bank Business
Correspondents Association. It is urged that in
absence of any document being furnished to show
individual BC has authorised the Association to
W.P.(C) No.32402 of 2022 Page 18 of 130
espouse his/her cause before this Court, particularly
so when change of service condition has been alleged,
in view of ratio of decision in Swakshtagrahi Sanch,
Janpad Panchayat Niwas Vrs. Union of India and
others, Writ Appeal No.91 of 2002, vide Judgment
dated 15.03.2022 of the High Court of Madhya
Pradesh at Jabalpur, the writ petition is liable to be
dismissed in limine.
7.3. It is forcefully submitted by Sri Tanmay Mishra,
learned Advocate while assisting Sri Manoj Kumar
Mishra, learned Senior Advocate that the contention of
Sri Debendra Mohanta, learned Advocate for the
petitioner is far to be accepted as the engagement of
BC is based on agreement for a period of one year
subject to extension. Due to RFP, the agreement has
not been extended. In essence, the RFP is a policy
decision to engage Corporate Business
Correspondents in order to utilise tools of advanced
technology to meet the exigencies of banking business.
Taking cue from Clause 6 of the Agreement at
Annexure-2 it is indicated that the employees of
BC/FC or its agents will be under the total control,
both administrative and supervisory, of the BC/BF. He
would submit that whether BC can be recognized as
workman/employee of the OGB is subject matter of
industrial dispute stated to be pending adjudication
W.P.(C) No.32402 of 2022 Page 19 of 130
before the Central Government Industrial Tribunal.
Any observation in this regard at this stage would be
preposterous.
7.4. Explaining further Sri Tanmay Mishra, learned
Advocate submitted that bids are invited from vendors
to provide Financial Inclusion Servers and Gateway so
as to facilitate end-to-end solution. It is argued that
the policy decision has been taken by the OGB for
technology based service by introducing ATM devices,
Financial Inclusion Servers and Financial Inclusion
Gateway. It is submitted that though Sri Debendra
Mohanta, learned Advocate for the petitioner has been
attempting to impress upon that the alleged change in
service condition is not policy, but in the rejoinder
affidavit at paragraph 3 he has accepted such change
has been effected as a consequence of policy decision
of the OGB.
7.5. Sri Manoj Kumar Mishra, learned Senior Advocate
along with Sri Tanmay Mishra, learned Advocate
repelling the contention of learned counsel for the
petitioner, Sri Debenera Mohanta, Advocate that
having changed the conditions of service without
adhering to the manner specified under Section 9A of
the ID Act, and thereby the OGB has contravened
provisions of Section 33(2)(b) thereof, drew attention of
W.P.(C) No.32402 of 2022 Page 20 of 130
this Court to the provisions envisaged in Section 33A
of the ID Act and contended that had the BCs been
sanguine about their rights and prejudices, recourse
to said provisions would have to be taken.
Nevertheless, the approach of the petitioner to this
Court by way of writ petition is not only premature but
would frustrate the proceeding before the Central
Government Industrial Tribunal.
Consideration of rival contentions:
8. The first issue sought to be addressed to by this Court
as emanated from the arguments would be whether
this writ petition filed by the Odisha Gramya Bank
Business Correspondents Association is maintainable.
8.1. It is alleged by the petitioner that the BC being placed
under control of Corporate-successful bidder, but not
the OGB, condition of service gets changed without
following the mandate envisaged under Section 9A
read with Section 33(2) of the ID Act. Sri Debendra
Mohanta, learned Advocate championing the cause of
the BCs claiming to be members of the Odisha
Gramya Bank Business Correspondents Association
submitted that the members having authorised, the
Association could very well espouse the case of its
members.
W.P.(C) No.32402 of 2022 Page 21 of 130
8.2. Per contra, Sri Manoj Kumar Mishra, learned Senior
Advocate raised serious objection and submitted that
factual disputes with respect to individual service
condition and status of Agreement would depend on
the issue whether the writ petitioner at the behest of
Association can be maintainable.
8.3. Perusal of the record reveals the following facts:
i. In the cause title of the writ petition, the
petitioner has described itself as:
“Odisha Gramya Bank Business Correspondents
Association (OGBBCA), represented through the
General Secretary, Sri Pravakar Barik, Son of
Prafulla Barik of Bhaskarganj (A), Sailesh Lane,
P.O./P.S./ District: Balasore”.
ii. The affidavit portion of the writ petition would
depict as follows:
“I, Pravakar Barik, aged about 37 years, Son of
Prafulla Barik of Bhaskarganj (A) Sailesh Lane,
PO/PS/District: Balasore, do hereby solemnly
affirm and state as follows:
1. That, I am the General Secretary of
Petitioner.
2. That, the fact stated above are true to the
best of my knowledge and those borne out of
records.”
W.P.(C) No.32402 of 2022 Page 22 of 130
iii. No pleading is available to demonstrate that the
members have authorised the General Secretary
of the Odisha Gramya Bank Business
Correspondents Association to file the case of
present nature; nor is there any resolution
furnished showing such fact.
iv. Nothing is stated by the petitioner-Odisha
Gramya Bank Business Correspondents
Association to depict that there was any
resolution of the Association to question the
decision of the OGB, viz., RFP.
v. Cursory glance at the copy of Agreement dated
05.06.2020 enclosed as Annexure-2 depicts Sri
Pravakar Barik in his individual capacity entered
into Agreement with OGB.
vi. No list of members is available in the writ petition
nor was it produced before this Court during the
course of hearing. The writ petition is also not
clear whether all the BCs, alleged to be members,
have authorised Sri Pravakar Barik to pursue
remedy before this Court by way of filing writ
petition notwithstanding the subject-matter has
been pending adjudication before the Central
Government Industrial Tribunal.
W.P.(C) No.32402 of 2022 Page 23 of 130
vii. In the Vakalatnama executed in favour of Sri
Debendra Mohanta, learned Advocate the
General Secretary of OGBBCA has put his
signature and seal, but the record does not reveal
whether the General Secretary was competent to
execute the Vakalatnama and he was authorised
by the Association with respect to filing of the
present case.
viii. There is no declaration nor does any document
evince that in case an order is passed against the
petitioner, all the members of the Odisha Gramya
Bank Business Correspondents Association
would be bound by such decision.
8.4. Therefore, this Court finds force in the argument of the
learned Senior Advocate Sri Manoj Kumar Mishra,
presenting the matter on behalf of the OGB that the
Odisha Gramya Bank Business Correspondents
Association cannot pursue the matter on behalf of the
BCs engaged by the OGB by executing Agreement
individually.
8.5. To buttress the objection raised by Sri Manoj Kumar
Mishra, learned Senior Advocate, it may require to
have reference to Tamil Nadu Survey Officers Union
(Central) Vrs. The Government of Tamil Nadu, W.P.
No.10465 of 2020 and W.M.P. Nos.16548 of 2020,
W.P.(C) No.32402 of 2022 Page 24 of 130
16414 of 2020 and 12723 of 2020, disposed of by
Order dated 28.04.2022, wherein the Madras High
Court has been pleased to make the following
observation:
“8. The primordial contention of the petitioner
Association is that without appreciating the limited
scope of powers of the Village Administrative
Officer, the Government of Tamil Nadu amended
the Tamil Nadu Survey and Boundaries Act under
Section 13 including the Village Administrative
Officer as a part of G.O.Ms.No.173, Revenue and
Disaster Management Department dated
26.03.2020 under Section 13(h) of the amendment
to Chain Survey and Land Records Manual and
such exercise of power to modify including the
Village Administrative Officer is wholly without
authority and the Act does not permit involving of
the Village Administrative Officers in the process
of surveying. According to the respondents, the
writ petition itself is not maintainable, as it
relates to service matter and the petitioner
Association has no locus standi to challenge
the impugned Government Order and further
added that the petitioner’s service conditions or
their right for seniority / promotion will not be
affected vide the impugned Government Order and
it is also not correct to say that VAOs are not
technically qualified to do survey of lands. It is
argued by the learned Advocate General that the
minimum general educational qualifications for
both VAO and Firka Surveyor is a pass in SSLC
and therefore, there is no question of technicalW.P.(C) No.32402 of 2022 Page 25 of 130
qualification during recruitment and subsequent to
appointment, field Surveyors are provided with
Survey Training for 60 days and VAOs are
provided with Survey Training for 30 days.
***
12. A careful reading of all the above Judgments,
makes it clear that an Association either
registered or unregistered, can file a writ
petition under Article 226 of the Constitution
of India on behalf of its members taking the
cause of its members only if,
(a) the members themselves are unable to
approach the Court by reason of poverty,
disability or socially or economically in a
disadvantaged position, who are termed as
„Little Indians‟; and
(b) in case of public injury leading to public
interest litigation provided the Association
has some concern deeper than that of a way-
farer or a busy body.
13. In the judgment dated 28.03.2018 in W.A.No.1792
of 2017 [The Secretary to Government, Chennai-9
and Others Vrs. The Tamil Nadu Higher
Secondary Vocational Teachers Association], the
Hon‟ble Division Bench has observed that
„There is no question of entertaining the writ
petition at the instance of the Association in
a Service Matter and directing the
Government to grant the benefits to the
members of the Association. Nothing
W.P.(C) No.32402 of 2022 Page 26 of 130
prevented the employees who worked as
Vocational Instructors to approach the Court
for appropriate relief. Since it is a service
matter, the concerned employee has to
approach the Court. There is no locus standi
for the Association to approach the Court for
the purpose of giving service benefits to its
members. ***‟
14. Admittedly, in the case on hand, the present
writ petition has been filed on behalf of its
members and the members of the petitioner’s
Association are employees of the Survey &
Settlement Department and they cannot be
presumed to be poor, disabled or
disadvantaged to approach this Court
individually. In the light of the aforesaid decision
of the learned Single Judge of this Court in
Bharathidasan University Backward Class and
Most Backward Class Employees Association Vrs.
The State of Tamil Nadu, [MANU/TN/0647/2015],
and the Division Bench judgment cited supra, the
writ petition which pertains to service matter, is
not maintainable.”
8.6. In Swakshtagrahi Sangh, Janpad Panchayat Niwas
Vrs. Union of India, 2022 SCC OnLine MP 5420 the
Madhya Pradesh High Court at Jabalpur observed
thus:
“7. The Division Bench of this Court in the matter of
Prabhat Vrs. Barkatulla University, ILR 2011 MP
1692 has held that a writ petition for enforcement
of the rights of its members, as distinguished from
W.P.(C) No.32402 of 2022 Page 27 of 130
the rights of the Association as a body, can be
filed by the Association acting through its office
bearers or members, whether the Association is
registered or unregistered, incorporated or not,
only when the Association can satisfy the Court
that if an adverse decision is given in that petition,
all the members of that Association or “Body of
Individuals” will be bound by the decision. It has
also been held that if the same principle is not
followed, immediately after adverse decision, any
other members of the said Association may come
before the Court in an independent writ petition
saying that he has not been heard and he had not
authorized such Association or office bearer or
member to represent him in the litigation.
8. Therefore, to bind the members by the
decision in a litigation brought before the
Court on behalf of such members by any
Association, it is necessary that such
Association must clearly resolve that who
authorized the Association to file such
litigation. The resolution should also mention
that the members will abide any decision
rendered in such litigation. In the present case, a
perusal of the resolution clearly shows that the
same does not fulfil the stipulated requirement.
Hence, the learned Single Judge has not
committed any error while rejecting the writ
petition.”
8.7. Further reference can be had in this regard to
Shahpura Janjagran & Vikas Samiti Vrs. State of
Madhya Pradesh, Writ Petition No.15973 of 2008, vide
W.P.(C) No.32402 of 2022 Page 28 of 130
Judgment dated 05.08.2024 of the Madhya Pradesh
High Court at Jabalpur [NEUTRAL CITATION NO.
2024:MPHC-JBP:39035] referring to earlier decisions in
Prabhat (supra) and Swakshtagrahi Sangh (supra),
observed as follows:
“16. There is nothing on record to suggest that the
petitioner/society represents all the residents of
Shahpura C-Sector Residency. There is also
nothing on record to suggest that all the members
of the society had authorized the petitioner to file
the petition. There is no declaration that in
case if an order is passed against the
petitioner, then all the members of the
society will be bound by it.
17. Since the authorization letter is not in conformity
with the requirement of law, as laid down by
Division Bench of this Court in the cases of
Prabhat (supra) and Swakshtagrahi Sangh
Janpad Panchayat Niwas (supra), accordingly, the
petition is also bad on that ground.”
8.8. Significant it is to notice the observation to the
question– “Whether an association of persons,
registered or unregistered can maintain a petition
under Article 226 of the Constitution of India for the
enforcement of the rights of its members as
distinguished from the enforcement of its own
rights?”– that was referred to Full Bench in Umesh
Chand Vinod Kumar Vrs. Krishi Utpadan Mandi Samiti,
W.P.(C) No.32402 of 2022 Page 29 of 130
Bharthana, 1983 SCC OnLine All 638 = AIR 1984 All
46:
“It appears to us that according to this decision a joint
writ petition would be validly maintainable if there is
legally subsisting jural relationship of association of
persons between them or if they have the same cause
of action. In substance, this decision applies the same
principle of procedure as was enunciated by the Full
Bench of our Court in Mall Singh‟s case (1968 All LJ
210), namely, generally joinder of more than one person
can be permitted in a proceeding under Article 226
where the right to relief arises out of the same act or
transaction or where the petitioners are jointly
interested in the cause of action and a common question
of law or fact arises. In other words, joinder of more
than one person is permissible when the cause of
action is the same. Such joinder may not be
permissible if the cause of action is similar.
***
The position appears to be that an association of
persons, registered or unregistered, can file a petition
under Article 226 for enforcement of the rights of its
members as distinguished from the enforcement of its
own rights–
(1) In case members of such an association are
themselves unable to approach the court by
reason of poverty, disability or socially or
economically disadvantaged position (“little
Indians”).
W.P.(C) No.32402 of 2022 Page 30 of 130
(2) In case of a public injury leading to public interest
litigation; provided the association has some
concern deeper than that of a wayfarer or a
busybody, i.e., it has a special interest in the
subjectmatter.
(3) Where the rules or regulations of the
Association specifically authorise it to take
legal proceedings on behalf of its members,
so that any order passed by the court in such
proceedings will be binding on the members.
In other cases an Association, whether
registered or unregistered, cannot maintain
a petition under Article 226 for the
enforcement or protection of the rights of its
members, as distinguished from the
enforcement of its own rights.”
8.9. Sri Debendra Mohanta, learned Advocate for the
petitioner has laid stress on the following observation
contained in All India Loco Running Staff Association
Northern Railway Vrs. Union of India, 1984 SCC OnLine
Raj 172 to contend that the Association has the locus
standi to espouse the case of individual members of
the Association:
“18. A.B.S.K. Sangh (Rly.) Vrs. Union of India, (1981) 1
SCC 246 = AIR 1981 SC 298 was noticed. The
learned Judge observed in State Bank of Bikaner
Employees Association Vrs. Bank of India, 1932 (I)
LLJ 413 as follows:
W.P.(C) No.32402 of 2022 Page 31 of 130
„Keeping the trend with the pronouncements of the
Supreme Court, it is not possible to throw out the
writ petition at the threshold itself on the sole
ground that it has been filed by an association of
employees, without going into the merits of the
other contentions. Even otherwise, the second
petitioner is an individual employee and he must
be deemed to be directly interested in and affected
by the proposed action of the respondents.
Besides the first petitioner is a registered trade
union, and it is stated that it has got membership
of about 5,000 who are all employees of the
second respondent all over India. It cannot be
stated that the rights of its members would not be
affected by the proposed action of the
respondents. The writ laid by the first petitioner,
as representing a large body of employees of the
second respondent whose rights and interest are
likely to be affected, must be held to be competent.
Representative actions even in writ jurisdiction
cannot be thrown out on the simple ground that
the body which represents the cause of its
members on roll is not by itself affected. It would
suffice the purpose of the rights of its members are
affected; and then, as observed by the Supreme
Court, collective proceedings are permissible
instead of driving each individual employee
affected to file an independent writ, which would
result only in plurality of litigation on the common
question. The Supreme Court was prepared to
countenance a non-recognised Association
maintaining a writ petition. As observed earlier,
the first petitioner is a registered trade union and
it can legitimately, be representing its members,W.P.(C) No.32402 of 2022 Page 32 of 130
employees of the second respondent, give vent to
their grievances and seek redress and relief, as
representing their cause.‟
19. The aforesaid decisions of the Supreme Court and
Madras High Court throw considerable light on the
question relating to the maintainability of the writ
petitions. In the case on hand the respective
petitioners have filed the writ petitions for the
enforcement of a right of their employees members
which has been affected by a common and single
order. The non-petitioners forfeited the earned
leave of the employees, postponed the increment
and denied benefits of their earlier services for the
purpose of leave, passes, qualifying service and
pensionary benefits. The petitioners in each of
the writ petition represented large body of
employees whose rights and interests have
been affected. As observed in A.B.S.K.‟s case (2)
if the rights of the members are affected, collective
proceedings are permissible instead of bringing
each individual employee affected to file a writ
petition which would result in plurality of litigation
on the common question. In that case the Supreme
Court was prepared to countenance a non-
recognised Association maintaining; the writ
petition. It has been stated in the writ petitions
that the affected employees are poor receiving
meagre salary which is their sole main-stay,
therefore, they cannot move this Court individually
and hence seek justice through their Union, the
petitioner of which they are members. In these
circumstances the preliminary objection that the
petitioners-Associations representing the
W.P.(C) No.32402 of 2022 Page 33 of 130
employees affected cannot maintain the writ
petition cannot be accepted and it is overruled and
it is held that the petitioners are entitled to
maintain these petitions.”
8.10. Said case is distinguishable on facts of the instant
case. The distinctive feature in the said case in All
India Loco Running Staff Association Northern Railway
Vrs. Union of India, 1984 SCC OnLine Raj 172 can be
found from paragraphs 9, 13 and 14 thereof, which
are reproduced for better comprehension:
“9. It has been stated in the preliminary reply that the
writ petitions are not maintainable because each
individual employee affected by the order should
have filed separate writ petitions instead of filing
the joint writ petition through the President or the
Secretary as the case may be of the Association. In
support of this objection it was stated that it was
an individual cause of action and, therefore, the
President or the Secretary as the case may be could
not maintain it. In this connection reference was
made to r. 375 of the High Court Rules, 1952 (for
short “the Rules” herein). An objection was also
taken that the Association has not been recognised
by the Railway Administration. It was also
contended that before filing the writ petitions no
demand of justice was made before the cempetent
authority.
***
13. I have given my most anxious and thoughtful
consideration to the rival contentions in this regard.
W.P.(C) No.32402 of 2022 Page 34 of 130
The material part of Rule 375 of the Rules occurs in
Chapter XXII of Part IV which reads, as under:
„(4) An application by more than one person shall
not be entertained except when the relief
claimed is founded on the same cause of
action.‟
14. In Chand Mal Vrs. State, AIR 1968 Raj. 20, the
expression „same cause of action‟ was considered.
In that case there was a challenge to the validity of
the provisions of the Rajasthan Agricultural Produce
Markets Act (Act No. XXXVIII of 1561), the Rules
made thereunder and the bye-laws made by the
Krishi Upaj Mandi Samiti, Kishangarh. The
objection regarding the maintainability of the writ
petition was raised on the ground that the relief
claimed by the petitioners in that case could not be
said to be founded on the same cause of action. It
was submitted that what was affected by law if at
all were personal or individual rights of several
petitioners to carry on their trade or business and
consequently it being infringement of individual
right, cause of action that petitioners‟ claim could
not be said to be joint or same so as to entitle them
to maintain joint petition. It was held that though
petitioners‟ were all challenging same law in same
way and they might even be affected in same way,
that was not sufficient to hold that they had same
rights which were allegedly infringed by law and
consequently same cause of action. Mr. Mridul,
learned counsel for the petitioners strongly refuted
that Rule 375(4) of the Rules is applicable to the
cases on hand on the ground that it is not a petition
on behalf of petitioner by more than one person, for
W.P.(C) No.32402 of 2022 Page 35 of 130
it is a petition by the Association seeking to enforce
the rights of its members employed with non-
petitioners. He pressed that Rule 375 is not
attracted. It is not necessary to make a probe in
this matter in view of the recent trend of the
decisions of the Supreme Court as Well as of the
other High Courts. In A.B.S.K. Sangh (Rly.) Vrs.
Union of India, (1981) 1 SCC 246 = AIR 1981 SC
298, Akhil Bhartiya Soshit Karamchari Sangh
(Railway) represented by its Assitant General
Secretary on behalf of the Association etc.
(petitioner) filed writ petition under Article 226 of
the Constitution. A contention was raised that it is a
non-recognised Association and so whether it can
maintain the writ petition. It was observed in para
63 as under:
„A technical point is taken in the counter-affidavit
that the 1st petitioner is an unrecognised
association and that, therefore, the petition to that
extent is not sustainable. It has to be overruled.
Whether the petitioners belong to a recognised
union or not, the fact remains that a large body of
persons with grievance exists and they have
approached this Court under Article 32. Our current
processual jurisprudence is not of individualistic
Anglo-Indian mould. It is broad-based and people-
oriented, and envisions access to justice through
„class action‟, public interest litigation, and
„representative proceedings‟. Indeed little Indians in
large numbers seeking remedies in courts through
collective proceedings, instead of being driven to an
expensive plurality of litigations, is an affirmation of
participative justice in our democracy. We have noW.P.(C) No.32402 of 2022 Page 36 of 130
hesitation in holding that the narrow concept of
„cause of action‟ and „persons aggrieved‟ and
individual litigation is becoming obsolescent in
some jurisdictions. It must fairly be stated that the
learned. Attorney General has taken no objection to
a non-recognised association maintaining the writ
petitions.”
8.11. Further reading of the said judgment in All India Loco
Running Staff Association Northern Railway (supra), it
appears the facts based on which the said decision
came to be held that writ petition is maintainable at
the behest of said Association are these:
“5. I will notice facts leading to S.B. Civil Writ Petition
No. 2277 of 1983. The petitioner is a Union
representing employees working at the various Loco
Running Sheds of Jodhpur Division of the Northern
Railway. It has inter alia, been stated in para 1 of
the writ petition as under:
„By this writ petition, the petitioner seeks to enforce
the fundamental statutory and other rights of its
member citizens employed with respondents No. 1
and 2 in Loco Running Sheds of Jodhpur Division of
Northern Railway. These employees are working as
Drivers, Shunters, Diesel Assistants and Fireman
etc.‟ ***”
8.12. From the factual details obtained in All India Loco
Running Staff Association Northern Railway (supra) it
can be culled out that the Association comprising Loco
Running Staff of Northern Railway ventilated the
W.P.(C) No.32402 of 2022 Page 37 of 130
collective grievance maintained petition under Article
226 of the Constitution of India. Furthermore, there
was mention in the judgment about specific provision
in the concerned Rules envisaging application by more
than one person. However, in the case at hand, it is
the individual cause as Business Correspondence is
sought to be protected by the Odisha Gramya Bank
Business Correspondents Association. As is apparent
from Annexure-2 of the writ petition the Agreement of
the OGB with the individual BC was for one year
subject to renewal. Despite query from this Court, no
such specific rule could be cited by Sri Debendra
Mohanta, learned Advocate, but he tried to justify the
maintainability of the writ petition.
8.13. This Court wishes to have regard to the following ratio
laid down by the Hon’ble Supreme Court of India in
the case of Union of India Vrs. Arulmozhi Iniarasu,
(2011) 7 SCC 397:
“Before examining the first limb of the question,
formulated above, it would be instructive to note, as a
preface, the well-settled principle of law in the matter of
applying precedents that the Court should not place
reliance on decisions without discussing as to how the
fact situation of the case before it fits in with the fact
situation of the decision on which reliance is placed.
The observations of the courts are neither to be read as
Euclid‟s theorems nor as provisions of statute and thatW.P.(C) No.32402 of 2022 Page 38 of 130
too taken out of their context. These observations must
be read in the context in which they appear to have
been stated. Disposal of cases by blindly placing
reliance on a decision is not proper because one
additional or different fact may make a world of
difference between conclusions in two cases. [Ref.
Bharat Petroleum Corpn. Ltd. Vrs. N.R. Vairamani,
(2004) 8 SCC 579; Sarva Shramik Sanghatana (KV) Vrs.
State of Maharashtra, (2008) 1 SCC 494 and Bhuwalka
Steel Industries Ltd. Vrs. Bombay Iron & Steel Labour
Board, (2010) 2 SCC 273.”
8.14. In the case of present nature, claim of each individual
is required to be considered independently vis-à-vis
terms of Agreement entered into between the OGB and
the BC. It is also not the case of the petitioner-Odisha
Gramya Bank Business Correspondents Association in
the writ application that the members have difficulty
in approaching this Court individually; nor has it been
shown by the petitioner that any resolution was
passed by the members authorising Pravakar Barik,
the General Secretary of the Odisha Gramya Bank
Business Correspondents Association to pursue
remedy before this Court under Article 226 of the
Constitution of India. Not a single scrap of paper has
been made part of the record to indicate that the BCs
are members of the Odisha Gramya Bank Business
Correspondents Association and authorized the
General Secretary of Odisha Gramya Bank Business
W.P.(C) No.32402 of 2022 Page 39 of 130
Correspondents Association to take legal proceedings
on behalf of its members. As has already been stated
above, the affidavit and cause title as also averment of
the writ petition are silent about such fact. Save and
except making statement at paragraph 1 of the writ
petition that “the petitioner is an Association
registered under the Trade Unions Act, 1926 and
espouses the causes of the Business Correspondent
Agents engaged by opposite party No.5-Bank as per
the Guidelines of the Reserve Bank of India”, there is
nothing on record to suggest that the authorization
has been accorded by members of the Odisha Gramya
Bank Business Correspondents Association to file the
writ petition. Moreover, it is admitted and remained
undisputed that the cause of regularization on
adjudication as to whether the BC could be treated as
employee-workman of the OGB and the Agreement
would elevate the BC to the status of workman-
employee of the OGB is yet to be decided by the
Central Government Industrial Tribunal where the ID
Case No.34 of 2022 is pending.
8.15. The observations in All India Loco Running Staff
Association Northern Railway Vrs. Union of India, 1984
SCC OnLine Raj 172 based on fact and analysis of
particular rule referred to therein cannot be said to
have general proposition that the Association without
W.P.(C) No.32402 of 2022 Page 40 of 130
being properly authorised and in absence any
document showing resolution of the members of the
Association to file writ petition under Article 226 of the
Constitution of India could ventilate grievance of cause
of action of engagees. There being apparent distinctive
feature observed All India Loco Running Staff
Association Northern Railway Vrs. Union of India, 1984
SCC OnLine Raj 172 the proposition of the counsel for
the petitioner that the writ petition is maintainable at
the behest of Odisha Gramya Bank Business
Correspondents Association is liable to be repelled.
The writ petition is, therefore, defective.
8.16. Apart from the above, important it is to take note of
Clause 14 under the Heading “Miscellaneous” of
Agreement dated 05.06.2020 (Annexure-2), which inter
alia reads as follows:
“(d) Neither this agreement nor any provision hereof is
intend to confer upon any person other than the
parties to this Agreement any rights or remedies
hereunder.
(j) The BC/BF shall not assign or transfer all or any
of its rights, benefits or obligations under this
Agreement without the approval of the Odisha
Gramya Bank Bank. The Odisha Gramya Bank
may at any time assign or transfer all or any of its
rights, benefits and obligations under this
Agreement.
W.P.(C) No.32402 of 2022 Page 41 of 130
(k) The BC/BF agree that they shall not use the logo,
trademark, copyright of other proprietary right of
the Bank in any advertisement of publicity
materials or any other written communication with
any other party, without the prior written consent
of the Bank.
(i) This Agreement shall not be construed as joint
venture. Each party shall be responsible for all its
obligation towards its respective employee. No
employee of any of the two parties shall claim to
be employee of other party.”
8.17. Glossing through the Agreement as a whole would lead
to suggest that the BCA is an independent person to
handle the job entrusted/assigned and it can also do
the work done through others by engaging its own
employees/personnel. It is also stipulated that the
individual right and remedy cannot be transferred or
conferred on other party. The main thrust of argument
of Sri Debendra Mohanta, learned Advocate is attack
on the change in service condition, which, in the
considered opinion of this Court, affects the person
concerned-BC individually.
8.18. For the reasons ascribed and discussions made supra,
the writ petition filed by the Odisha Gramya Bank
Business Correspondents Association is incompetent.
9. Notwithstanding above question of maintainability
that arose during the course of hearing of present
W.P.(C) No.32402 of 2022 Page 42 of 130
case, Sri Debendra Mohanta, learned Advocate sought
to insist for a decision on merit of the matter too being
conscious of the fact that the observation made herein
may have repercussion on the dispute pending before
the Central Government Industrial Tribunal.
9.1. Therefore, the next contention of Sri Debendra
Mohanta, Advocate that there being flagrant violation
of requirement stipulated in Section 9A read with
Section 33(2)(b) of the ID Act, the writ petition is liable
to be allowed by nullifying the effect of “Request for
Proposal for Selection of Corporate Business
Correspondent with End-to-End Financial Inclusion
with Technology” vide Annexure-9 is considered.
9.2. Sri Manoj Kumar Mishra, learned Senior Advocate for
the OGB adverted to such stance of the learned
counsel for the petitioner by making reference to
Section 33A of the ID Act and contended that the
petitioner had the scope to approach the learned
Central Government Industrial Tribunal by lodging
complaint but should not have approached this Court
straightway. Simultaneous proceeding is anathema to
the judicial adjudicatory process.
9.3. At this juncture it may be expedient to take note of
provisions contained in Sections 9A, 9B, 33 and 33A
of the ID Act, which read as under:
W.P.(C) No.32402 of 2022 Page 43 of 130
“Chapter Ii-A
Notice of Change9A. Notice of change.–
No employer, who purposes to effect any change
in the conditions of service applicable to any
workman in respect of any matter specified in the
Fourth Schedule1, shall effect such change,–
(a) without giving to the workman likely to be
affected by such change a notice in the
prescribed manner of the nature of the
change proposed to be effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for
effecting any such change–
1 Fourth Schedule stands thus:
“The Fourth Schedule
(See Section 9A)
Conditions of Service
for change of which Notice is to be given
1. Wages, including the period and mode of payment;
2. Contribution paid, or payable, by the employer to any provident
fund or pension fund or for the benefit of the workmen under
any law for the time being in force;
3. Compensatory and other allowances;
4. Hours of work and rest intervals;
5. Leave with wages and holidays;
6. Starting alteration or discontinuance of shift working otherwise
than in accordance with standing orders;
7. Classification by grades;
8. Withdrawal of any customary concession or privilege or change
in usage;
9. Introduction of new rules of discipline, or alteration of existing
rules, except in so far as they are provided in standing orders;
10. Rationalisation, standardisation or improvement of plant or
technique which is likely to lead to retrenchment of workmen;
11. Any increases or reduction (other than casual) in the number of
persons employed or to be employed in any occupation or
process or department or shift, not occasioned by circumstances
over which the employer has no control.”
W.P.(C) No.32402 of 2022 Page 44 of 130
(a) where the change is effected in pursuance of
any settlement or award; or
(b) where the workmen likely to be affected by
the change are persons to whom the
Fundamental and Supplementary Rules,
Civil Services (Classification, Control and
Appeal) Rules, Civil Services (Temporary
Service) Rules, Revised Leave Rules, Civil
Service Regulations, Civilians in Defence
Services (Classification, Control and Appeal)
Rules or the Indian Railway Establishment
Code or any other rules or regulations that
may be notified in this behalf by the
appropriate Government in the Official
Gazette, apply.
9B. Power of Government to exempt.–
Where the appropriate Government is of opinion
that the application of the provisions of Section 9A
to any class of industrial establishments or to any
class of workmen employed in any industrial
establishment affect the employers in relation
thereto so prejudicially that such application may
cause serious repercussion on the industry
concerned and that public interest so requires, the
appropriate Government may, by notification in
the Official Gazette, direct that the provisions of
the said section shall not apply, or shall apply,
subject to such conditions as may be specified in
the notification, to that class of industrial
establishments or to that class of workmen
employed in any industrial establishment.
W.P.(C) No.32402 of 2022 Page 45 of 130
Chapter VII
Miscellaneous
33. Conditions of service, etc. to remain unchanged
under certain circumstances during pendency of
proceedings.–
(1) During the pendency of any conciliation
proceedings before a conciliation officer or a Board
or of any proceeding before an arbitrator or] a
Labour Court or Tribunal or National Tribunal in
respect of an industrial dispute, no employer
shall,–
(a) in regard to any matter connected with
dispute, alter, to the prejudice of the
workmen concerned in such dispute, the
conditions of service applicable to them
immediately before the commencement of
such proceedings; or
(b) for any misconduct connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, any workmen
concerned in such dispute, save with the
express permission in writing of the authority
before which the proceeding is pending.
(2) During the pendency of any such proceeding
in respect of an industrial dispute, the
employer may, in accordance with the
standing orders applicable to a workman
concerned in such dispute or, where there are no
such standing orders, in accordance with the
terms of the contract, whether express or
implied between him and the workman–
W.P.(C) No.32402 of 2022 Page 46 of 130
(a) alter, in regard to any matter not connected
with the dispute, the conditions of service
applicable to that workman immediately
before the commencement of such
proceeding; or
(b) for any misconduct not connected with the
dispute, discharge or punish whether by
dismissal or otherwise, that workman:
Provided that no such workman shall be
discharged or dismissed, unless he has been paid
wages for one month and an application has been
made by the employer to the authority before
which the proceeding is pending for approval of
the action taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2) no employer shall, during the pendency
of any such proceeding in respect of an industrial
dispute, take any action against any protected
workman concerned in such dispute–
(a) by altering, to the prejudice of such protected
workman, the conditions of service
applicable to him immediately before the
commencement of such proceeding; or
(b) by discharging or punishing, whether by
dismissal or otherwise such protected
workman, save with the express permission
in writing of the authority before which the
proceeding is pending.
Explanation.–
W.P.(C) No.32402 of 2022 Page 47 of 130
For the purposes of this sub-section, a “PROTECTED
WORKMAN” in relation to an establishment, means a
workman, who being a member of the executive or
other office bearer of a registered trade union
connected with the establishment, is recognized as
such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to
be recognized as protected workmen for the
purposes of sub-section (3) shall be one per cent of
the total number of workmen employed therein
subject to a minimum number of five protected
workmen and a maximum number of one hundred
protected workmen and for this aforesaid purpose,
the appropriate Government may make rules
providing for the distribution of such protected
workmen among various trade unions, if any,
connected with the establishment and the manner
in which the workmen may be chosen and
recognised as protected workmen.
(5) Where an employer makes an application to a
conciliation officer, Board, an arbitrator, a Labour
Court, Tribunal or National Tribunal under the
proviso to sub-section (2) for approval of the action
taken by him, the authority concerned shall,
without delay, hear such application and pass,
within a period of three months from the date of
receipt of such application such order in relation
thereto as it deems fit:
Provided that where any such authority considers
it necessary or expedient so to do, it may, for
reasons to be recorded in writing extend such
period by such further period as it may think fit:
W.P.(C) No.32402 of 2022 Page 48 of 130
Provided further that no proceedings before any
such authority shall lapse merely on the ground
that any period specified in this sub-section had
expired without such proceedings being
completed.
33A. Special provision for adjudication as to whether
conditions of service etc. changed during
pendency of proceeding.–
Where an employer contravenes the provisions of
Section 33 during the pendency of proceedings
before a conciliation officer, Board, an arbitrator, a
Labour Court, Tribunal or National Tribunal any
employee aggrieved by such contravention, may
make a complaint in writing in the prescribed
manner,–
(a) to such conciliation officer or Board, and the
conciliation officer or Board shall take such
complaint into account in mediating in, and
promoting the settlement of, such industrial
dispute; and
(b) to such arbitrator, Labour Court, Tribunal, or
National Tribunal and on receipt of such
complaint, the arbitrator, Labour Court,
Tribunal or National Tribunal as the case
may be, shall adjudicate upon the complaint
as if it were a dispute referred to or pending
before it, in accordance with the provisions of
this Act and shall submit his or its award to
the appropriate Government and the
provisions of this Act shall apply
accordingly.”
W.P.(C) No.32402 of 2022 Page 49 of 130
9.4. This Court, upon conjoint reading of the above
statutory provisions, finds sufficient force in the
submission of Sri Manoj Kumar Mishra, learned
Senior Advocate that the provisions relate to
undisputed fact of employee having raised the dispute
before the fora mentioned therein. In the instant case,
the issue, whether the BC engaged on the basis of
Agreement for a period of one year subject, of course,
to renewal, could be treated as employee/workman so
that regularisation in service can be considered, is
pending adjudication before the Central Government
Industrial Tribunal.
9.5. At paragraph 12 of the counter affidavit filed by the
OGB, it has been categorically asserted that “there is
no employer-employee relationship as BCs are
engaged by an agreement. The said agreement is a
principal to principal / Business to Business (B2B)
contract. The BCAs are treated as individual business
entities like a proprietorship concern.”
9.6. In such view of the matter, the terms of Agreement
could not be construed to have effect of condition of
service. A feeble attempt has been made by Sri
Debendra Mohanta, learned Advocate by stating that
for selection of Business Correspondents certain
qualifications are prescribed under Master Circular
W.P.(C) No.32402 of 2022 Page 50 of 130
dated 03.09.2020 (Annexure-D/4). It is submitted that
the qualification of BC has been prescribed as “10th
pass/SSC/SSLC/Matriculation or equivalent
qualification” with clearance in “certificate
examination for Business Correspondents from IIBF to
continue working as a BC within the stipulated time
as advised by IBA”. However, this Court having taken
into consideration that the engagement of BC on
entering into Agreement for a period of one year
(Annexure-2) feels it to observe that the BC with eyes
wide open offers to be engaged with conditions
stipulated in the clause relevant for termination/non-
renewal of agreement beyond the stipulated period.
9.7. Sri Debendra Mohanta, learned Advocate has tried to
persuade this Court by referring to Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd. Vrs. Ram Gopal
Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284. The
said reported Judgment interpreted the requirement of
permission under Section 33(2) of the ID Act and
consequence of non-compliance in the following terms:
“1. From the order of reference made in Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd. Vrs. Ram Gopal
Sharma, (1994) 6 SCC 522 the question that
arises for consideration is:
„If the approval is not granted under Section
33(2)(b) of the Industrial Disputes Act, 1947,W.P.(C) No.32402 of 2022 Page 51 of 130
whether the order of dismissal becomes ineffective
from the date it was passed or from the date of
non-approval of the order of dismissal and
whether failure to make application under Section
33(2)(b) would not render the order of dismissal
inoperative?‟***
13. The proviso to Section 33(2)(b), as can be seen
from its very unambiguous and clear language, is
mandatory. This apart, from the object of Section
33 and in the context of the proviso to Section
33(2)(b), it is obvious that the conditions contained
in the said proviso are to be essentially complied
with. Further, any employer who contravenes the
provisions of Section 33 invites a punishment
under Section 31(1) with imprisonment for a term
which may extend to six months or with fine
which may extend to Rs 1000 or with both. This
penal provision is again a pointer of the
mandatory nature of the proviso to comply with
the conditions stated therein. To put it in another
way, the said conditions being mandatory, are to
be satisfied if an order of discharge or dismissal
passed under Section 33(2)(b) is to be operative. If
an employer desires to take benefit of the said
provision for passing an order of discharge or
dismissal of an employee, he has also to take the
burden of discharging the statutory obligation
placed on him in the said proviso. Taking a
contrary view that an order of discharge or
dismissal passed by an employer in contravention
of the mandatory conditions contained in the
proviso does not render such an order inoperative
W.P.(C) No.32402 of 2022 Page 52 of 130
or void, defeats the very purpose of the proviso
and it becomes meaningless. It is well-settled rule
of interpretation that no part of statute shall be
construed as unnecessary or superfluous. The
proviso cannot be diluted or disobeyed by an
employer. He cannot disobey the mandatory
provision and then say that the order of discharge
or dismissal made in contravention of Section
33(2)(b) is not void or inoperative. He cannot be
permitted to take advantage of his own wrong.
The interpretation of statute must be such that it
should advance the legislative intent and serve
the purpose for which it is made rather than to
frustrate it. The proviso to Section 33(2)(b) affords
protection to a workman to safeguard his interest
and it is a shield against victimization and unfair
labour practice by the employer during the
pendency of industrial dispute when the
relationship between them is already strained. An
employer cannot be permitted to use the provision
of Section 33(2)(b) to ease out a workman without
complying with the conditions contained in the
said proviso for any alleged misconduct said to be
unconnected with the already pending industrial
dispute. The protection afforded to a workman
under the said provision cannot be taken away. If
it is to be held that an order of discharge or
dismissal passed by the employer without
complying with the requirements of the said
proviso is not void or inoperative, the employer
may with impunity discharge or dismiss a
workman.
W.P.(C) No.32402 of 2022 Page 53 of 130
14. Where an application is made under Section
33(2)(b) proviso, the authority before which the
proceeding is pending for approval of the action
taken by the employer has to examine whether the
order of dismissal or discharge is bona fide;
whether it was by way of victimization or unfair
labour practice; whether the conditions contained
in the proviso were complied with or not etc. If the
authority refuses to grant approval obviously it
follows that the employee continues to be in
service as if the order of discharge or dismissal
never had been passed. The order of dismissal or
discharge passed invoking Section 33(2)(b)
dismissing or discharging an employee brings an
end of relationship of the employer and employee
from the date of his dismissal or discharge but
that order remains incomplete and remains
inchoate as it is subject to approval of the
authority under the said provision. In other words,
this relationship comes to an end de jure only
when the authority grants approval. If approval is
not given, nothing more is required to be done by
the employee, as it will have to be deemed that the
order of discharge or dismissal had never been
passed. Consequence of it is that the employee is
deemed to have continued in service entitling him
to all the benefits available. This being the position
there is no need of a separate or specific order for
his reinstatement. But on the other hand, if
approval is given by the authority and if the
employee is aggrieved by such an approval, he is
entitled to make a complaint under Section 33-A
challenging the order granting approval on any of
the grounds available to him. Section 33-A is
W.P.(C) No.32402 of 2022 Page 54 of 130
available only to an employee and is
intended to save his time and trouble
inasmuch as he can straightaway make a
complaint before the very authority where
the industrial dispute is already pending
between the parties challenging the order of
approval instead of making efforts to raise
an industrial dispute, get a reference and
thereafter adjudication. In this view, it is not
correct to say that even though where the order of
discharge or dismissal is inoperative for
contravention of the mandatory conditions
contained in the proviso or where the approval is
refused, a workman should still make a complaint
under Section 33-A and that the order of dismissal
or discharge becomes invalid or void only when it
is set aside under Section 33-A and that till such
time he should suffer misery of unemployment in
spite of the statutory protection given to him by the
proviso to Section 33(2)(b). It is not correct to
say that where the order of discharge or
dismissal becomes inoperative because of
contravention of proviso to Section 33(2)(b),
Section 33-A would be meaningless and
futile. The said section has a definite purpose to
serve, as already stated above, enabling an
employee to make a complaint, if aggrieved by the
order of the approval granted.
15. The view that when no application is made or the
one made is withdrawn, there is no order of
refusal of such application on merit and as such
the order of dismissal or discharge does not
become void or inoperative unless such an order is
W.P.(C) No.32402 of 2022 Page 55 of 130
set aside under Section 33-A, cannot be accepted.
In our view, not making an application under
Section 33(2)(b) seeking approval or withdrawing
an application once made before any order is
made thereon, is a clear case of contravention of
the proviso to Section 33(2)(b). An employer who
does not make an application under Section
33(2)(b) or withdraws the one made, cannot be
rewarded by relieving him of the statutory
obligation created on him to make such an
application. If it is so done, he will be happier or
more comfortable than an employer who obeys the
command of law and makes an application
inviting scrutiny of the authority in the matter of
granting approval of the action taken by him.
Adherence to and obedience of law should be
obvious and necessary in a system governed by
rule of law. An employer by design can avoid to
make an application after dismissing or
discharging an employee or file it and withdraw
before any order is passed on it, on its merits, to
take a position that such order is not inoperative
or void till it is set aside under Section 33-A
notwithstanding the contravention of Section
33(2)(b) proviso, driving the employee to have
recourse to one or more proceedings by making a
complaint under Section 33-A or to raise another
industrial dispute or to make a complaint under
Section 31(1). Such an approach destroys the
protection specifically and expressly given to an
employee under the said proviso as against
possible victimization, unfair labour practice or
harassment because of pendency of industrial
W.P.(C) No.32402 of 2022 Page 56 of 130
dispute so that an employee can be saved from
hardship of unemployment.
16. Section 31 speaks of penalty in respect of the
offences stated therein. This provision is not
intended to give any remedy to an aggrieved
employee. It is only to punish the offender. The
argument that Section 31 provides a remedy to an
employee for contravention of Section 33 is
unacceptable. Merely because penal provision is
available or a workman has a further remedy
under Section 33-A to challenge the approval
granted, it cannot be said that the order of
discharge or dismissal does not become
inoperative or invalid unless set aside under
Section 33-A. There is nothing in Sections 31, 33
and 33-A to suggest otherwise even reading them
together in the context. These sections are
intended to serve different purposes.
19. In these appeals, Respondent 1 was employed as
Clerk-cum-Cashier with the appellant. He was
dismissed from service. As certain proceedings
were pending before the Industrial Tribunal,
Jaipur, an application seeking approval of the
Tribunal for the said dismissal was submitted by
the appellant before the Tribunal under Section
33(2)(b). The said application was contested on
various grounds by the respondent including that
the appellant-Bank had failed to comply with the
provisions of Section 33(2)(b) as salary for one
month was not paid. The Tribunal, on facts, found
that the appellant failed to comply with the
provisions of Section 33(2)(b) and in that view
dismissed the application. The appellant
W.P.(C) No.32402 of 2022 Page 57 of 130
challenged the order of the Tribunal before the
High Court in Writ Petition No. 666 of 1980. The
same was dismissed concurring with the order
passed by the Tribunal.”
9.8. Careful reading of said judgment and taking note of
interpretation of Section 31, 33 and 33A of the ID Act,
it is transpired that the said case rested on the fact
that the Respondent No.1 therein was “employed” as
Clerk-cum-Cashier with the Jaipur Zila Sahakari
Bhoomi Vikas Bank Ltd.
9.9. In the present case, the letter of engagement of BC is
extracted for better appreciation of factually distinctive
feature:
“Odisha Gramya Bank
Khaparapada BranchLetter No.BO/MISC/44/2018 31.07.2018
To
Mr. Swagat Kumar Sahoo
Son of Anup Kumar Sahoo
At: Srirampur
P.O.: Srirampur Road, Via: Singla
P.S.: Baliapal, District: Baleswar
PIN: 756023Ref.: Engagement at Business Correspondent (BC) of
the Branch Khaparapada Issuance of provisional
engagement letter of offerW.P.(C) No.32402 of 2022 Page 58 of 130
With reference to Regional Office, Baleswar Letter
No: BO/FI/188/18 dated 30.07.2018 and your
application dated 20.07.2018 in response to OLM
sponsorship on above subject for engagement
as Business Correspondent (BC) of our branch,
we advise you as under.
The objective of Government of India is to provide
doorstep banking services to customers in allotted
area of BC with adherence of norms under
Financial Inclusion (FI) Programme. You are
required to extend doorstep banking facilities/
services to the people of the allotted BC area and
the branch clientele as per norms and procedures
of the Bank from time to time.
As intimated, you have been provisionally selected
by the Competent Authority as Business
Correspondent (BC) of our branch for the SSA
Srirampur GP initially for a period of one year
only subject to ratification of our Head
Office.
Your above provisional engagement as Business
Correspondent (BC) is subject to terms and
conditions laid down in various Letters/Circulars
and Guidelines issued thereof from time to time.
On joining, you are to maintain fidelity and
secrecy and must not act to the detriment of
Bank‟s interest. You are to execute an
Agreement on yearly basis with the Bank in
IBA approved format immediately after
joining as BC.
W.P.(C) No.32402 of 2022 Page 59 of 130
You are to deposit a cash security of Rs.25000/-
which will be kept as security deposit in shape of
RDP for a minimum period of five years.
Yours services shall be discontinued by either of
the parties by giving one month notice to the
counter party.
Your performance will be reviewed from time to
time by the Bank and if found satisfactory, it may
be recommend for renewal after one year. Any
kind of your indulgence in fraud, embezzlement,
misappropriation or malpractices etc. will be
viewed with extreme disfavour and your services
shall be nontinued/terminated immediately.
Bank reserves its right to make any kind of
additions and alters of terms and conditions
etc. without assigning any reason thereof
from time to time.
If you are agreeable, you are advised to return a
copy of this letter against acknowledgment with
full signature and date thereon latest by dated
31.07.2018 falling which it will be presumed that
you are no longer interested to act as BC of the
Branch and this offer letter will be treated as
lapsed automatically.
Please acknowledgment receipt.
Yours faithfully
Sd/-
Manager
Odisha Gramya Bank
Khaparapada”
W.P.(C) No.32402 of 2022 Page 60 of 130
9.10. The Agreement dated 05.06.2020 would show that the
term of engagement was for one year and the
agreement is “on a principal to principal basis”.
Furthermore, Clause 6 of the Agreement reads thus:
“*** BC/BF shall perform its obligations under this
Agreement as an independent party. Neither this
Agreement not the BC/BF’s performance of
obligations under this Agreement shall create an
association, partnership, joint venture, or
relationship of principal and agent, principal
employer-contractor, master and servant, or
employer and employee, between the Bank and the
BC/BF or its sub-agents.
The BC/BF has agreed to employ his/her/its/their
own workmen for providing services under this
agreement. The employees of BC/BF/or its agents will
be under the total control, both administrative and
supervisory, of the BC/BF.
The BC/BF can have similar arrangements with other
Banks through the same employees at the point of
customer interface if the technology available with such
other Banks, who have also appointed the BC/BF to
render service similar to all or any of the services
provided under this Agreement.
***
Neither BC/BF nor its employees, agents,
representatives sub-contractors shall hold out or
represent as agents of the Bank.”
W.P.(C) No.32402 of 2022 Page 61 of 130
9.11. These covenants would go to show that the BC is not
employee as scope is available to employ his/her/its/
their own workmen.
9.12. It may be necessary to quote the affirmation made by
the opposite party Nos.4 and 5 in their counter
affidavit, which is to the following effect:
“9. That the contents of paragraph 5 are denied. The
Business Correspondent are engaged as per
Bank‟s Circular No.PMT/22/20-21, dated
03.09.2020. There is no interview or written
exam for selection BCs. Whereas IIBF
certification for working as BC is mandatory as per
IBA Circular No.SB/CIR/FI-BC/2019-20/7482,
dated 18.06.2019.”
9.13. Therefore, the proposition of law as propounded in
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vrs. Ram
Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284
shall not come to the aid of the petitioner. Whether the
BC can be regularised in service would fall within the
purview of factual dispute which is stated to be
pending before the Central Government Industrial
Tribunal.
9.14. Under aforesaid premises, the apprehension of the
counsel for the petitioner that there was violation of
provisions of Section 9A read with Section 33(2) of the
ID Act is without comprehension.
W.P.(C) No.32402 of 2022 Page 62 of 130
10. Bearing in mind the exposition of law with respect to
the aspect that it is the domain of the employer to
formulate policies with regard to service conditions,
the contention of the petitioner is tested. With respect
to scope of judicial review in the context of policy
matters, this Court in Sona Spun Pipe Industries Ltd.
Vrs. State of Odisha, 2020 SCC OnLine Ori 991 = 2020
(III) ILR-CUT 364 made the following observations:
“27. The famous “Wednesbury Case” Associated
Provincial Picture Houses Ltd. Vrs. Wednesburry
Corpn., (1948) 1 K.B. 223 = (1947) 2 All ER 680, is
considered to be landmark in so far as the basic
principles relating to judicial review of
administrative or statutory direction are
concerned. In the said judgment, it has been
observed by Lord Greene M.R. that„It is clear that the local authority are entrusted by
Parliament with the decision on a matter which
the knowledge and experience of that authority
can best be trusted to deal with. The subject-
matter with which the condition deals is one
relevant for its consideration. They have
considered it and come to a decision upon it. It is
true to say that, if a decision on a competent
matter is so unreasonable that no reasonable
authority could ever have come to it, then the
courts can interfere.‟
28. In Tata Cellular Vrs. Union of India, (1994) 6 SCC
651, the Supreme Court while dealing with scopeW.P.(C) No.32402 of 2022 Page 63 of 130
of judicial review in the matter of administrative
decision, has observed as under:
„71. Judicial quest in administrative matters has
been to find the right balance between the
administrative discretion to decide matters
whether contractual or political in nature or
issues of social policy; thus they are not
essentially justifiable and the need to
remedy any unfairness. Such an unfairness
is set right by judicial review.
72. Lord Scarman in Nottinghamshir County
Council Vrs. Secretary of State for the
Environment, (1986) A.C. 240 at 251
proclaimed: „Judicial review‟ is a great
weapon in the hands of the Judges; but the
Judges must observe the constitutional limits
set by our parliamentary system upon the
exercise of this beneficent power.
73. Observance of judicial restraint is currently
the mood in England. The judicial power of
review is exercise to rein in any unbridled
executive functioning. The restraint has two
contemporary manifestations. One is the
ambit of judicial intervention; the other
covers the scope of the Court‟s ability to
quash an administrative decision on its
merits. These restraints bear the hallmarks
of judicial control over administrative action.
74. Judicial review is concerned with reviewing
not the merits of the decision in support of
which the application of judicial review isW.P.(C) No.32402 of 2022 Page 64 of 130
made, but the decision making process
itself.”
29. The Supreme court in Municipal Corporation,
Ujjain Vrs. B.V.G. Indian Ltd., (2018) 5 SCC 462,
while dealing with the scope of judicial review by
the High Court, held that the modern trend points
to judicial restraint in administrative action, the
Court does not sit as a Court of Appeal but merely
reviews the manner in which the decision was
made, and further that the judicial review of
administrative action is intended to prevent
arbitrariness. If the process adopted or decision
made by the authority is not mala fide, not
intended to favour someone and is neither
arbitrary nor irrational, and if it cannot be
concluded that no responsible authority acting
reasonably could have reached such a decision
and if the public interest is not affected, no
interference should be made under Article 226 of
the Constitution. Relevant paragraphs of the
report, containing such observations are
reproduced hereunder:
„10. The modern trend points to judicial restraint
in administrative action. The Court does not
sit as a Court of Appeal but merely reviews
the manner in which the decision was made.
The Court does not have the expertise to
correct the administrative decision. If a
review of the administrative decision is
permitted, it will be substituting its own
decision without the necessary expertise
which itself may be fallible. The Government
must have freedom of contract. In other
W.P.(C) No.32402 of 2022 Page 65 of 130
words, a fair play in the joints is a necessary
concomitant for an administrative body
functioning in an administrative sphere or a
quasi-administrative sphere. However, the
decision must not only be tested by the
application of the Wednesbury principle of
reasonableness, but must also be free from
arbitrariness and not affected by bias or
actuated by mala fides.‟ ***
14. The judicial review of administrative action is
intended to prevent arbitrariness. The
purpose of judicial review of administrative
action is to check whether the choice or
decision is made lawfully and not to check
whether the choice or decision is sound. If
the process adopted or decision made by the
authority is not mala fide and not intended to
favour someone; if the process adopted or
decision made is neither so arbitrary nor
irrational that under the facts of the case it
can be concluded that no responsible
authority acting reasonably and in
accordance with relevant law could have
reached such a decision; and if the public
interest is not affected, there should be no
interference under Article 226. ***
44. As rightly contended by respondent No.3, a
statutory authority granting licences should
have the latitude to select the best offer on
the terms and conditions prescribed. The
technical expert in his report categorically
stated that,W.P.(C) No.32402 of 2022 Page 66 of 130
„All the above aspects demand high level of
Technicalities and Expertise rather than just
depending on lowest financial price quote for
a material transport.‟As clarified earlier, the power of judicial
review can be exercised only if there is
unreasonableness, irrationality or
arbitrariness and in order to avoid bias and
mala fides. This Court in Afcons
Infrastructure, (2016) 16 SCC 818 = AIR
2016 SC 4305 held the same in the following
manner:
„13. In other words, a mere disagreement
with the decision making process or the
decision of the administrative authority
is no reason for a constitutional Court to
interfere. The threshold of mala fides,
intention to favour someone or
arbitrariness, irrationality or perversity
must be met before the constitutional
Court. ***
64. Thus, the questions to be decided in
this appeal are answered as follows:
(64.1)Under the scope of judicial review, the
High Court could not ordinarily interfere
with the judgment of the expert
consultant on the issues of technical
qualifications of a bidder when the
consultant takes into consideration
various factors including the basis of
non-performance of the bidder;‟W.P.(C) No.32402 of 2022 Page 67 of 130
30. In M.P. Gangadharan Vrs. State of Kerala, (2006)
6 SCC 162, the Supreme Court considered a
question as to whether a Family Court can be
shifted from one place to another within the area
of its jurisdiction. The Court while discussing the
scope of judicial review in such administrative
functions, observed that the constitutional
requirement for judging the question of
reasonableness and fairness on the part of the
statutory authority must be considered having
regard to the factual matrix obtaining in each
case. It cannot be put in a straight-jacket formula.
It must be considered keeping in view, the doctrine
of flexibility. Before an action is struck down, the
court must be satisfied that a case has been made
out for exercise of power of judicial review.
Referring to the recent development of law, the
Court further observed that
„We are not unmindful of the development of the
law that from the doctrine of Wednesbury
Unreasonableness, the court is leaning towards
the doctrine of proportionality. But in a case of this
nature, the doctrine of proportionality must also be
applied having regard to the purport and object for
which the Act was enacted‟.
31. In Maharashtra Land Development Corporation
Vrs. State of Maharashtra, (2011) 15 SCC 616, the
Supreme Court observed that the Wednesbury
principle of reasonableness has given way to the
doctrine of proportionality. As per the Wednesbury
principles, administrative action can be subject to
judicial review on the grounds of illegality,
irrationality or procedural impropriety. The
W.P.(C) No.32402 of 2022 Page 68 of 130
principle of proportionality envisages that a public
authority ought to maintain a sense of proportion
between particular goals and the means employed
to achieve those goals, so that administrative
action impinges on the individual rights to the
minimum extent to preserve public interest. It was
held by the Court that administrative action ought
to bear a reasonable relationship to the general
purpose for which the power has been conferred.
Any administrative authority while exercising a
discretionary power will have to necessarily
establish that its decision is balanced and in
proportion to the object of the power conferred. The
test of proportionality is concerned with the way in
which the decision maker has ordered his
priorities, i.e. the attribution of relative importance
to the factors in the case. It is not so much the
correctness of the decision that is called into
question, but the method to reach the same. If an
administrative action is contrary to law, improper,
irrational or otherwise unreasonable, a court
competent to do so can interfere with the same
while exercising its power of judicial review. It
was further held that, the principle of
proportionality therefore implies that the Court has
to necessarily go into the advantages and
disadvantages of any administrative action called
into question. Unless the impugned administrative
action is advantageous and in public interest such
an action cannot be upheld. At the core of this
principle is the scrutiny of the administrative
action to examine whether the power conferred is
exercised in proportion to the purpose for which it
has been conferred.
W.P.(C) No.32402 of 2022 Page 69 of 130
32. It is the settled legal proposition that normally the
Constitutional Court should be slow to interfere
with the opinion expressed by the team of Experts.
The Supreme Court in G. Sundarrajan Vrs. Union
of India, (2013) 6 SCC 620, after referring to the
Constitution Bench of the Supreme Court in
University of Mysore Vrs. C.D. Govinda Rao, AIR
1965 SC 491, held that
„normally, Court should be slow to interfere with
the opinion expressed by the Experts and it would
normally be wise and safe for the courts to leave
the decisions to experts who are more familiar
with the problems which they face than the courts
generally can be which has been the consistent
view taken by this Court.‟
33. In Federation of Railway Officers Association Vrs.
Union of India, (2003) 4 SCC 289, the Supreme
Court has observed that
“in examining a question of this nature where a
policy is evolved by the Government, judicial
review thereof is limited. On matters affecting
policy and requiring technical expertise, Court
would leave the matter for decision of those who
are qualified to address the issues. Unless the
policy or action is inconsistent with the
Constitution and the laws or arbitrary or irrational
or abuse of the power, the Court will not interfere
with such matters.‟
Therefore, when technical questions arise
and experts in that field have expressed
various views and all those aspects have been
W.P.(C) No.32402 of 2022 Page 70 of 130
taken into consideration by the Government
in deciding the matter, the Court should
restrain from interfering with the same when
there is no mala fide or unfairness.”
10.1. With the above backdrop of legal perspective
highlighting scope of intervention in the policy
decisions in the judicial review, the averments,
contentions and arguments of rival parties are
considered.
10.2. It is averred by the petitioner at paragraph 2 of the
writ petition that “the petitioner in the present
application challenges the proposed decision of
opposite party No.5 to change the status of the
Banking Correspondent Agents, engaged and working
under the direct supervision of the Bank”.
10.3. It is ascertained from Circular TRAN/77, dated
31.08.2013 issued by IT Department of OGB vide
Annexure-3 that to cater to the needs of number of
villages banking services through Financial Inclusion
Programme was extended through service channels,
namely:
1. Ultra Small Branches without ICT Solutions;
2. Ultra Small Branches with ICT Solutions
3. Banking Correspondent Agent with ICT Solutions.
W.P.(C) No.32402 of 2022 Page 71 of 130
It is further clarified that the village level worker for
delivery of doorstep banking services under Financial
Inclusion Programme is termed as Banking
Correspondent Agent (BCA). The BCA should be from
the same village allotted to the branch for
implementation of Financial Inclusion Programme.
Apart from requirement of deposit of security deposit
by the BCA, it is entitled to remuneration towards
incidental expenses and travelling expenses. It is paid
commission at fixed percentage on recovery of
advances of different categories including delivery of
notices/letters. Thus, essentially, the BCA renders
varieties of services to the branch of the OGB in
villages. Clause 8 of the Agreement entered into
between the OGB and the BCA (Annexure-2) reveals
that the BC is entitled to be paid fees and commission.
It is further significant to notice that said clause
provides that “in case of customer complaints,
deficiency in service on the part of BC/BF etc. the
Bank shall be within its rights to withhold or demand
return of fees, commission paid”.
10.4. It is manifest from Circular No.PMT-22/20-21, dated
03.09.2020 issued by Financial Inclusion Department
of the Odisha Gramya Bank (Annexure-D/4) that the
said Circular supersedes all earlier circulars/
instructions in line with the Government of India/
W.P.(C) No.32402 of 2022 Page 72 of 130
Reserve Bank of India through different circulars and
letters with respect to “engagement of BCs, their
functions, their service renewals, commission
structure, control and monitoring, etc.” It is provided
that different entities are eligible to be engaged by the
Bank as BCs. Such entities include:
i. Educated unemployed youths above 18 years;
ii. Individuals like retired bank employees, retired
teachers, retired Government employees and ex-
servicemen, individual owners of kirana/
medical/fair price shops, individual Public Call
Office (PCO) operators, agents of small savings
schemes of Government of India/insurance
companies;
iii. Individual members of the self-help group
associated with local branch under Bank Sakhi
approach Bank has entered into MoU with
Odisha Livelihoods Mission (OLM) on dated 7th
October 2016 for engagement of self-help group
members as BCS in the bank.
iv. The Bank can also enlist other eligible entities/
individuals in respect of BCs as may be advised
by Reserve Bank of India/DFS from time to time.
W.P.(C) No.32402 of 2022 Page 73 of 130
The Agreement to be entered into between the OGB
and the BC would be for one year subject to renewal
and the BC is entitled for commission for different
types of jobs entrusted/assigned.
10.5. The RFP issued on 01.11.2022 (Annexure-9)
contemplating migration of existing Financial
Inclusion Solution, the OGB requires an End-to-End
Financial Inclusion Solution for Technology and for BC
Management. At Clause 6 of Part-III (Annexure-I,
thereof) under the Heading “Scope of the Project” it
has been stated that “Bank may require additional BC
Agents at locations as per the roadmap given by
Reserve Bank of India/DFS/SLBC/State Government.
The successful bidder is required to deploy BC Agents
on same terms and conditions at those locations”.
Successful bidder would host Financial Inclusion
Gateway and provide End-to-End Solution in
Technology and deploy all the banking applications on
the Micro-ATMs/Mobile Devices/Kiosk. Successful
Bidder is responsible for deploying qualified personnel
as BC Agent.
10.6. In the rejoinder affidavit the petitioner has advanced
plea based on Master Circular dated 01.07.2014 that
“Section 23(2) of the Banking Regulation Act lays down
that before granting any permission under this
W.P.(C) No.32402 of 2022 Page 74 of 130
Section, the Reserve Bank of India may require to be
satisfied, by an inspection under Section 35 or
otherwise, as to the financial condition and history of
the banking company, the general character of its
management, the adequacy of its capital structure and
earning prospects and that public interest will be
served by the opening or, as the case may be, change
of location of the existing place of business”. Such a
plea of the petitioner is unwarranted incursion into
the policy of OGB. As is apparent from the RFP under
Annexure-9 it is abundantly clear that such a model is
sought to be implemented by superseding earlier
Circulars by virtue of Master Circular dated
03.09.2020 issued by the OGB in conformity with
Guidelines/Instructions of Government of India/
Reserve Bank of India. Nothing is brought on record to
suggest that the policy under challenge has violated
any of the Guidelines or Instructions of the Reserve
Bank of India. Thus, the pleading based on Circular
dated 01.07.2014 is jejune.
10.7. It has been impressed upon this Court that for smooth
running of the banking business of the OGB, it is
expedient for change of module in sync with
technological development. The challenge before the
OGB is that servers used by the bank for financial
inclusion have become obsolete and is facing space
W.P.(C) No.32402 of 2022 Page 75 of 130
constraints. It may not function for longer period
taking the present volume of transactions into
account. As the scope of RFP included procurement of
new servers, it is important to permit the bank to
continue with the RFP process for smooth functioning
of Financial Inclusion Gateway and Servers.
Government of India in Ministry of Electronics and
Information Technology, Unique Identification
Authority of India (Authentication Division) vide Letter
F No. HQ-13023/I/2020-AUTH-I HQ/2084, dated
23.12.2022 has instructed for removal of old and
deployed devices from authentication ecosystem. It
has been intimated to all AUAs/KUAs2 that LO3
registered devices4 vide Letter No. HQ-13029/1/2021-
AUTH-I-HQ, dated 23.12.2022 that they are required
to be removed from authentication ecosystem. All the
micro ATM devices presently deployed by the Bank are
LO registered device. UIDAI vide Letter No. F.No. HQ-
13021/1/2021-Auth-I HQ, dated 27.01.2023 has
2 AUA: This stands for Authentication User Agency. An AUA is an entity that
provides Aadhaar-enabled services and utilizes Aadhaar authentication
services provided by the Unique Identification Authority of India (UIDAI).
KUA: This stands for e-KYC User Agency. A KUA is an entity that requires
Aadhaar authentication specifically for electronic Know Your Customer (e-
KYC) processes.
3 LO: This typically refers to Local Operator in the context of Aadhaar
authentication systems. Local Operators are responsible for managing
devices that are used to capture biometric data or demographic information
from individuals during the authentication process.
4 Registered Devices: This term refers to devices that have been officially
registered with UIDAI and are authorized to perform Aadhaar authentication
tasks, including capturing biometric data such as fingerprints or iris scans.
W.P.(C) No.32402 of 2022 Page 76 of 130
suggested for phasing out all existing fingerprint LO
Registered devices from authentication ecosystem. As
most of the devices deployed by the Bank in the
AADHAAR ecosystems are more than 5 years old, in
view of UIDAI Circulars these devices would not
function after 31st March 2023.
10.8. It is further updated by the opposite party Nos.4 and 5
that the Bank is incurring cost of Rs.4,00,000/-
(Rupees four lakh) per quarter towards AMC of
Financial Inclusion Gateway and Servers due to non-
implementation of Corporate Business Correspondent.
The OGB is presently migrating its Core Banking
Solution (CBS) and would implement Aadhaar data
vault as a result of which testing of Financial Inclusion
module is required for implementation of same after
migration. As per the RFP the vendor was required to
conduct these testing.
10.9. The steps enumerated by the OGB for smooth running
of banking business are policy decisions and in
conformity with the Central Government directives.
10.10. When policy decision is questioned in the writ
jurisdiction, the Hon’ble Supreme Court of India has
made the observations in All India Council for Technical
Education Vrs. Surinder Kumar Dhawan, (2009) 11
SCC 726 as follows:
W.P.(C) No.32402 of 2022 Page 77 of 130
“16. The courts are neither equipped nor have the
academic or technical background to substitute
themselves in place of statutory professional
technical bodies and take decisions in academic
matters involving standards and quality of
technical education. If the Courts start
entertaining petitions from individual
institutions or students to permit courses of
their choice, either for their convenience or
to alleviate hardship or to provide better
opportunities, or because they think that one
course is equal to another, without realising
the repercussions on the field of technical
education in general, it will lead to chaos in
education and deterioration in standards of
education.
17. The role of statutory expert bodies on education
and the role of courts are well defined by a simple
rule. If it is a question of educational policy or an
issue involving academic matter, the courts keep
their hands off. If any provision of law or principle
of law has to be interpreted, applied or enforced,
with reference to or connected with education, the
courts will step in. In J.P. Kulshrestha (Dr.) Vrs.
Allahabad University, (1980) 3 SCC 418 this Court
observed:
„11. … Judges must not rush in where even
educationists fear to tread. … ***
17. … While there is no absolute ban, it is a rule
of prudence that courts should hesitate to
dislodge decisions of academic bodies.‟W.P.(C) No.32402 of 2022 Page 78 of 130
18. In Maharashtra State Board of Secondary and
Higher Secondary Education Vrs. Paritosh
Bhupeshkumar Sheth, (1984) 4 SCC 27 this Court
reiterated:
„29. … the Court should be extremely reluctant to
substitute its own views as to what is wise,
prudent and proper in relation to academic
matters in preference to those formulated by
professional men possessing technical
expertise and rich experience of actual day-
to-day working of educational institutions
and the departments controlling them.‟ ***”
10.11. In Sarat Kumar Raj Vrs. State of Odisha, a
Division Bench of this Court reported at 2013 SCC
OnLine Ori 277 = 117 (2014) CLT 584 held as follows
with respect to judicial review vis-à-vis change of
policy:
“Before embarking upon the rival contention of the
parties, we would like to deal with the ambit and scope
of judicial review with regard to tenability of policy
decisions.
The Hon‟ble Supreme Court in Premium Granites and
another Vrs. State of T.N., (1994) 2 SCC 691 while
considering the Court‟s powers in interfering with the
policy decision observed at page-715 as under: (SCC
para-54)„54. It is not the domain of the Court to embark upon
unchartered ocean of public policy in an exercise
to consider as to whether a particular public policyW.P.(C) No.32402 of 2022 Page 79 of 130
is wise or a better public policy can be evolved.
Such exercise must be left to the discretion of the
executive and legislative authorities as the case
may be.”
18. The Hon‟ble Supreme Court in Balco Employees‟
Union (Regd.) Vrs. Union of India, (2002) 2 SCC
333 held that it is neither within the domain of the
courts nor the scope of the judicial review to
embark upon an enquiry as to whether a
particular public policy is wise or whether better
public policy can be evolved. Nor are our courts
inclined to strike down a policy at the behest of a
petitioner merely because it has been urged that a
different policy would have been fairer or wiser or
more scientific or more logical. The Court can
interfere only if the policy decision is patently
arbitrary, discriminatory or mala fide.
19. The same view is echoed in the case of Shimnit
Utsch India Private Limited Vrs. West Bengal
Transport Infrastructure Development Corporation
Limited, (2010) 6 SCC 303. In paragraph-52 of the
report, their Lordships‟ held as follows:
„The Courts have repeatedly held that the
Government policy can be changed with changing
circumstances and only on the ground of change,
such policy will not be vitiated. The Government
has a discretion to adopt a different policy or alter
or change its policy calculated to serve public
interest and make it more effective. Choice in the
balancing of the pros and cons relevant to the
change in the policy lies with the authority. But
like any discretion exercisable by the GovernmentW.P.(C) No.32402 of 2022 Page 80 of 130
or public authority, change in policy must be in
conformity with Wednesbury reasonableness and
free from arbitrariness, irrationality, bias and
malice.
20. In the case of Tata Cellular Vrs. Union of India,
AIR 1996 SC 11, the Hon‟ble Supreme Court has
succinctly stated about the Wednesbury
unreasonableness. In paragraph-96 of the report,
their Lordships‟ held as follows:
„What is this charming principle of Wednesbury
unreasonablenss? Is it a magical formula? In Re :
Vrs. Askew, (1768) 4 2168, Lord Mansfield
considered the question whether mandamus
should be granted against the College of
Physicians. He expressed the relevant principles
in two eloquent sentences. They gained greater
value two centuries later : It is true, that the
judgment and discretion of determining upon this
skill, ability, learning and sufficiency to exercise
and practice this profession is trusted to the
College of Physician : and this Court will not take
it from them, nor interrupt them in the due and
proper exercise of it. But their conduct in the
exercise of this trust thus committed to them ought
to be fair, candid and unprejudiced; not arbitrary,
capricious, or biased; much less, warped by
resentment, or personal dislike.
21. In the case of State of N.C.T. of Delhi and Another
Vrs. Sajeev @ Bitto, AIR 2005 SC 2080, the
Hon‟ble Supreme Court had again considered the
principle of Wednesbury and held that:
W.P.(C) No.32402 of 2022 Page 81 of 130
„Therefore, to arrive at a decision on
„reasonableness‟ the Court has to find out if the
administrator has left out relevant factors or taken
into account irrelevant factors. The decision of the
administrator must have been within the four
corners of the law, and not one which no sensible
person could have reasonably arrived at, having
regard to the above principles, and must have
been a bona fide one. The decision could be one of
many choices open to the authority but it was for
the authority to decide upon the choice and not for
the Court to substitute its view.‟Thus, the Court cannot strike down a policy
decision taken by the State Government merely
because it feels that another policy decision would
have been fairer or wiser or more scientific or
logical. The Court can interfere only if the policy
decision is patently arbitrary, discriminatory or
mala fide.”
10.12. Apposite it is to have regard to what has been
observed in Small Scale Industrial Manufactures Assn.
Vrs. Union of India, (2021) 8 SCC 511. The Hon’ble
Supreme Court made it unambiguous with respect to
interference with the policy decisions in writ
jurisdiction, which is as follows:
“59. While considering the aforesaid submissions/
reliefs sought, the scope of judicial review on the
policy decisions in the field of economy and/or
economic policy decisions and/or the policy
decisions having financial implications whichW.P.(C) No.32402 of 2022 Page 82 of 130
affects the economy of the country are required to
be considered.
60. In catena of decisions and time and again this
Court has considered the limited scope of judicial
review in economic policy matters. From various
decisions of this Court, this Court has consistently
observed and held as under:
60.1. The Court will not debate academic matters or
concern itself with intricacies of trade and
commerce.
60.2. It is neither within the domain of the courts nor the
scope of judicial review to embark upon an
enquiry as to whether a particular public policy is
wise or whether better public policy can be
evolved. Nor are the courts inclined to strike down
a policy at the behest of a petitioner merely
because it has been urged that a different policy
would have been fairer or wiser or more scientific
or more logical. Wisdom and advisability of
economic policy are ordinarily not amenable to
judicial review.
60.3. Economic and fiscal regulatory measures are a
field where Judges should encroach upon very
warily as Judges are not experts in these matters.
***
63. This Court in State of M.P. Vrs. Nandlal Jaiswal,
(1986) 4 SCC 566 has observed that the
Government, as laid down in Permian Basin Area
Rate Cases, In re, 1968 SCC OnLine US SC 87 :
20 L Ed 2d 312 : 390 US 747 (1968), is entitled to
W.P.(C) No.32402 of 2022 Page 83 of 130
make pragmatic adjustments which may be called
for by particular circumstances. The court cannot
strike down a policy decision taken by the State
Government merely because it feels that another
policy decision would have been fairer or wiser or
more scientific or logical. The court can interfere
only if the policy decision is patently arbitrary,
discriminatory or mala fide.
***
65. In Peerless General Finance & Investment Co. Ltd.
Vrs. RBI, (1992) 2 SCC 343, it is observed and
held by this Court that the function of the court is
to see that lawful authority is not abused but not
to appropriate to itself the task entrusted to that
authority. It is further observed that a public body
invested with statutory powers must take care not
to exceed or abuse its power. It must keep within
the limits of the authority committed to it. It must
act in good faith and it must act reasonably.
Courts are not to interfere with economic policy
which is the function of experts. It is not the
function of the courts to sit in judgment over
matters of economic policy and it must necessarily
be left to the expert bodies. In such matters even
experts can seriously and doubtlessly differ.
Courts cannot be expected to decide them without
even the aid of experts. It is further observed that
it is not the function of the court to amend and lay
down some other directions. The function of the
court is not to advise in matters relating to
financial and economic policies for which bodies
like RBI are fully competent. The court can only
strike down some or entire directions issued by
W.P.(C) No.32402 of 2022 Page 84 of 130
RBI in case the court is satisfied that the
directions were wholly unreasonable or violative of
any provisions of the Constitution or any statute. It
would be hazardous and risky for the courts to
tread an unknown path and should leave such
task to the expert bodies. This Court has
repeatedly said that matters of economic policy
ought to be left to the Government.
66. In Narmada Bachao Andolan Vrs. Union of India,
(2000) 10 SCC 664, in paras 229 and 233, it is
observed and held as under:
„229. It is now well settled that the courts, in the
exercise of their jurisdiction, will not
transgress into the field of policy decision.
Whether to have an infrastructural project or
not and what is the type of project to be
undertaken and how it has to be executed,
are part of policy-making process and the
courts are ill-equipped to adjudicate on a
policy decision so undertaken. The Court, no
doubt, has a duty to see that in the
undertaking of a decision, no law is violated
and people’s fundamental rights are not
transgressed upon except to the extent
permissible under the Constitution.
***
233. At the same time, in exercise of its enormous
power the Court should not be called upon to
or undertake Governmental duties or
functions. The courts cannot run the
Government nor can the administrationW.P.(C) No.32402 of 2022 Page 85 of 130
indulge in abuse or non-use of power and get
away with it. The essence of judicial review
is a constitutional fundamental. The role of
the higher judiciary under the Constitution
casts on it a great obligation as the sentinel
to defend the values of the Constitution and
the rights of Indians. The courts must,
therefore, act within their judicial permissible
limitations to uphold the rule of law and
harness their power in public interest. It is
precisely for this reason that it has been
consistently held by this Court that in
matters of policy the court will not interfere.
When there is a valid law requiring the
Government to act in a particular manner the
court ought not to, without striking down the
law, give any direction which is not in
accordance with law. In other words, the
court itself is not above the law.‟
67. In Prag Ice & Oil Mills Vrs. Union of India, (1978) 3
SCC 459 = AIR 1978 SC 1296, this Court observed
as under:
„24. *** We do not think that it is the function of
this Court or of any court to sit in judgment
over such matters of economic policy as must
necessarily be left to the Government of the
day to decide. Many of them, … are matters
of prediction of ultimate results on which
even experts can seriously err and
doubtlessly differ. Courts can certainly not
be expected to decide them without even the
aid of experts.‟W.P.(C) No.32402 of 2022 Page 86 of 130
68. In P.T.R. Exports (Madras) (P) Ltd. Vrs. Union of
India, (1996) 5 SCC 268, this Court observed as
under:
„*** In matters of economic policy, it is settled law
that the court gives a large leeway to the executive
and the legislature. … Government would take
diverse factors for formulating the policy … in the
overall larger interest of the economy of the
country … The Court therefore would prefer to
allow free play to the Government to evolve fiscal
policy in the public interest and to act upon the
same.‟
69. What is best in the national economy and in what
manner and to what extent the financial reliefs/
packages be formulated, offered and implemented
is ultimately to be decided by the Government and
RBI on the aid and advice of the experts. The
same is a matter for decision exclusively within
the province of the Central Government. Such
matters do not ordinarily attract the power of
judicial review. Merely because some class/sector
may not be agreeable and/or satisfied with such
packages/policy decisions, the courts, in exercise
of the power of judicial review, do not ordinarily
interfere with the policy decisions, unless such
policy could be faulted on the ground of mala
fides, arbitrariness, unfairness, etc.
70. There are matters regarding which the Judges and
the lawyers of the courts can hardly be expected
to have much knowledge by reasons of their
training and expertise. Economic and fiscal
regulatory measures are a field where Judges
W.P.(C) No.32402 of 2022 Page 87 of 130
should encroach upon very warily as Judges are
not experts in these matters.
71. The correctness of the reasons which prompted
the Government in decision taking one course of
action instead of another is not a matter of concern
in judicial review and the court is not the
appropriate forum for such investigation. The
policy decision must be left to the Government as it
alone can adopt which policy should be adopted
after considering of the points from different
angles. In assessing the propriety of the decision
of the Government the court cannot interfere even
if a second view is possible from that of the
Government.
72. Legality of the policy, and not the wisdom or
soundness of the policy, is the subject of judicial
review. The scope of judicial review of the
Governmental policy is now well defined. The
courts do not and cannot act as an appellate
authority examining the correctness, stability and
appropriateness of a policy, nor are the courts
advisers to the executives on matters of policy
which the executives are entitled to formulate.
73. Government has to decide its own priorities and
relief to the different sectors. It cannot be disputed
that pandemic affected the entire country barring
few of the sectors. However, at the same time, the
Government is required to take various measures
in different fields/sectors like public health,
employment, providing food and shelter to the
common people/migrants, transportation of
migrants, etc. and therefore, as such, the
W.P.(C) No.32402 of 2022 Page 88 of 130
Government has announced various financial
packages/reliefs. Even the Government also
suffered due to lockdown, due to unprecedented
Covid-19 Pandemic and also even lost the revenue
in the form of GST. Still, the Government seems to
have come out with various reliefs/packages.
Government has its own financial constraints.
Therefore, as such, no writ of mandamus can be
issued directing the Government/RBI to
announce/declare particular relief packages
and/or to declare a particular policy, more
particularly when many complex issues will arise
in the field of economy and what will be the
overall effect on the economy of the country for
which the courts do not have any expertise and
which shall be left to the Government and RBI to
announce the relief packages/economic policy in
the form of reliefs on the basis of the advice of the
experts. Therefore, no writ of mandamus can be
issued.
74. No State or country can have unlimited resources
to spend on any of its projects. That is why it only
announces the financial reliefs/packages to the
extent it is feasible. The court would not interfere
with any opinion formed by the Government if it is
based on the relevant facts and circumstances or
based on expert advice. It is not normally within
the domain of any court to weigh the pros and
cons of the policy or to scrutinise it and test the
degree of its beneficial or equitable disposition for
the purpose of varying, modifying or annulling it,
based on howsoever sound and good reasoning,
only where it is arbitrary and violative of any
W.P.(C) No.32402 of 2022 Page 89 of 130
constitutional, statutory or any other provisions of
law. When the Government forms its policy, it is
based on a number of circumstances on facts, law
including constraints based on its resources. It is
also based on expert opinion. It would be
dangerous if the court is asked to test the utility,
beneficial effect of the policy or its appraisal based
on facts set out on affidavits.
75. No right could be absolute in a welfare State. Man
is a social animal. He cannot live without the
cooperation of a large number of persons. Every
article one uses is the contribution of many. Hence
every individual right has to give way to the right
of the public at large. Not every fundamental right
under Part III of the Constitution is absolute and it
is to be within permissible reasonable restriction.
This principle equally applies when there is any
constraint on the health budget on account of
financial stringencies.
76. It is the cardinal principle that it is not within the
legitimate domain of the court to determine
whether a particular policy decision can be served
better by adopting any policy different from what
has been laid down and to strike down as
unreasonable merely on the ground that the policy
enunciated does not meet with the approval of the
court in regard to its efficaciousness for
implementation of the object and purpose of such
policy decision.”
10.13. In Directorate of Film Festivals Vrs. Gaurav
Ashwin Jain, (2007) 4 SCC 737 = (2007) 5 SCR 7, it
has succinctly been held as follows:
W.P.(C) No.32402 of 2022 Page 90 of 130
“The scope of judicial review of Governmental policy is
now well defined. Courts do not and cannot act as
Appellate Authorities examining the correctness,
suitability and appropriateness of a policy. Nor are
courts Advisors to the executive on matters of policy
which the executive is entitled to formulate. The scope
of judicial review when examining a policy of the
Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the
provisions of the Constitution, or opposed to any
statutory provision or manifestly arbitrary. Courts
cannot interfere with policy either on the ground that it
is erroneous or on the ground that a better, fairer or
wiser alternative is available. Legality of the policy, and
not the wisdom or soundness of the policy, is the
subject of judicial review. [vide: Asif Hameed Vrs. State
of J&K, (1989) Supp 2 SCC 364; Shri Sitaram Sugar Co.
Ltd. Vrs. Union of India, (1990) 3 SCC 223; Khoday
Distilleries Vrs. State of Karnataka, (1996) 10 SCC 304,
Balco Employees Union Vrs. Union of India, (2002) 2
SCC 333, State of Orissa Vrs. Gopinath Dash, (2005) 13
SCC 495 and Akhil Bharat Goseva Sangh Vrs. State of
Andhra Pradesh, (2006) 4 SCC 162].”
10.14. It is the policy of the Bank which required
modification to suit the subsequent Master Circular
issued superseding the earlier Circulars and
Instructions. What would be methodology appropriate
for the banking business of the Commercial Banks,
like OGB, it is the domain of the expert body to decide.
As is well-settled, this Court is loathe in entertaining
challenge made to the policy unless the same falls
W.P.(C) No.32402 of 2022 Page 91 of 130
within the delineated criteria specified by the Hon’ble
Supreme Court of India as well as this Court as
discussed in the forgoing paragraphs.
10.15. The contention of the petitioner on this score is
liable to be dismissed.
11. Sri Debendra Mohanta, learned Advocate for the
petitioner, though warned against discussions on
merit by this Court while the claim for regularisation
of individual BC treating him as employee/workman is
pending before the Central Government Industrial
Tribunal, he went on to argue on the merit of the
matter. He submitted that since by virtue of
introduction of the RFP, if the new policy comes to be
implemented by a successful bidder, the entire effort
of approaching said Tribunal would be frustrated.
11.1. Per Sri Manoj Kumar Mishra, learned Senior Advocate
simultaneous approach of the petitioner– one before
the Central Government Industrial Tribunal for
consideration of regularisation which is objected to
that the BC is not employee/workman of OGB and the
other before this Court to stall the implementation of
policy decision to engage Corporate Business
Correspondent– is detrimental not only to the
functioning of the OGB, but also would affect larger
interest of the customer service.
W.P.(C) No.32402 of 2022 Page 92 of 130
11.2. Sri Tanmay Mishra, learned Advocate while assisting
the learned Senior Advocate Sri Manoj Kumar Mishra,
assisted this Court by citing a decision rendered by a
Division Bench of the Bombay High Court in the case
of Vijay Ramrao Satote Vrs. State Bank of India, 2021
see OnLine Bom 3240, where an identical challenge
with respect to Business Correspondent was raised.
This Court would wish to take note of the following
observations contained in the said judgment:
“1. The challenge raised in these writ petitions is to
the action initiated by the respondents for seeking
to terminate the services of the petitioners on the
post of Business Correspondent with a view to
appoint a fresh set of employees. Each petitioner
was appointed initially on the post of Business
Correspondent for a specified period. Since the
respondents sought to end this contractual
engagement, the petitioners approached this
Court. While issuing notice this Court had directed
the parties to maintain status-quo.
2. The principal challenge raised by the petitioners to
the Impugned action is based on the judgment of
the learned Single Judge of the Rajasthan High
Court in Civil Writ Petition No. 4308 of 2018 along
with other writ petitions (Ashish Kumar, son of
Megha Ram Singh Vrs. State Bank of India, Navi
Mumbai) decided on 31.05.2018. By that order,
the respondents were directed to continue the
petitioners therein as Business
Correspondents and not to terminate theirW.P.(C) No.32402 of 2022 Page 93 of 130
services so as to replace them with another
set of contractual employees. This order came
to be challenged before the Division Bench of that
High Court and by the judgment dated
28.11.20185 the Division Bench allowed the
said appeal and dismissed the original writ
petition. This order of the Division Bench in turn
was challenged by the original petitioners therein
before the Hon‟ble Supreme Court. The Hon’ble
Supreme Court on 08.01.2020 has dismissed
the Special Leave Petition bearing No. 3995
of 20196.
3. In view of this adjudication the petitioners cannot
succeed in the prayers made in these writ
petitions. By adopting the reasons assigned by the
Division Bench of Rajasthan High Court which
have been upheld by the Hon‟ble Supreme Court,
the writ petitions are dismissed. No costs.
4. Needless to state that if the petitioners are
aggrieved by the consequences suffered on
account of termination of their engagement as
Business Correspondents, they are free to take
such steps as are permissible in law.”
5 State Bank of India Vrs. Ashish Kumar, 2018 SCC OnLine Raj 2141.
6 The Hon’ble Supreme Court passed the following Order on 08.01.2020 in
Dileep Kumar Vrs. State Bank of India, SLP (C) No.3995 of 2019 (judgment and
order dated 28.11.2018 in DBSAW No. 1209 of 2018 passed by the High Court
of Judicature for Rajasthan at Jodhpur):
“Heard the learned counsel appearing for the parties.
. We find no merit in the Special Leave Petition.
The Special Leave Petition is, accordingly, dismissed.
Pending applications, if any, stand disposed of.”
W.P.(C) No.32402 of 2022 Page 94 of 130
11.3. The observations in State Bank of India Vrs. Ashish
Kumar, 2018 SCC OnLine Raj 2141 are as given
hereunder:
“These special appeals are directed against
judgments dated 31.05.2018/01.06.2018/
20.06.2018 passed by the learned Single Judge of
this court, whereby the writ petitions preferred by
the respondents questioning the action of the
appellants in corporatization of Individual
Business Correspondents (BCs) have been
allowed and the appellants herein are directed to
continue the respondents as BCs directly with the
appellant-Bank and not to terminate their services
so as to replace them by another set of contractual
employees or Corporate Business Correspondents,
unless there is a performance deficit on their part.
***
23. Indisputably, the BC model has been introduced
by the RBI to offer Banking Services to the
Unbanked and excluded segment of population of
the country specially those living in rural areas.
The Banks were permitted to formulate a policy for
engaging BCs with the approval of their Board of
Directors. It was specifically laid down that due
diligence may be carried out on the individuals/
entities to be engaged as BCs prior to their
engagement, covering the aspects inter alia such
as (i) reputation/marketing standing; (ii) financial
soundness; (iii) management and corporate
governance; (iv) cash handling ability and (v)
ability to implement technology solutions inW.P.(C) No.32402 of 2022 Page 95 of 130
rendering financial services. Obviously,
engagement of the BCs for financial inclusion of
rural population involves huge risks and therefore,
it was made imperative that the Bank shall carry
out due diligence exercise for ensuring the
protection of the customers.
24. It is pertinent to note that besides the individuals
like retired bank employees, retired teachers etc.,
the owners of kirana/medical/fair price shops,
PCOs, Small Saving Scheme Agents of Government
of India/Insurance Companies, NGOs, MFIs,
Cooperative Societies registered under the State
Acts or Multi State Cooperative Societies Act, Post
Offices, Companies registered under the
Companies Act, 1956, excluding the NBFCs were
also included in the eligibility zone for engagement
as BCs. Under the Scheme, the decision to engage
the BCs in the categories specified is left to the
discretion of the Bank concerned and it is not
obligatory upon the Bank to engage individual
BCs in preference to other entities. The guidelines
issued in no manner suggests that individuals
engaged shall have a different status as BCs vis-
a-vis other entities engaged such as NGOs,
Cooperative Societies, Companies etc. That apart,
as per the BC model introduced, a BC can be a BC
for more than one Bank, at the point of customer
interface, a retail outlet or a sub-agent of a BC,
shall represent and provide banking services of
only one bank. Suffice it to say that the
permissibility of engagement of individual as BC is
not restricted to one bank.
W.P.(C) No.32402 of 2022 Page 96 of 130
25. It is true that pursuant to the advertisement
issued by the appellant-Bank inviting applications
from eligible candidates, the respondents applied
for selection as BCs and on being declared
successful in interview, were engaged as BCs by
executing the agreement. But then, a bare perusal
of the agreement executed between the
respondents individually and the appellant-Bank
makes it abundantly clear that the respondents
were engaged as SP and not as contractual
employees. The nature of services to be provided
by the SP engaged as aforesaid were also
specified in Clause 1.2 of agreement. It cannot be
disputed that some of the duties casted upon the
SPs engaged are akin to the duties performed by
the employees of the Bank but on that account
their engagement as SPs shall not stand converted
into the engagement as contractual employees of
the Bank.
26. As a matter of fact, the relationship between the
parties to the agreement has also been specifically
dealt with under Clause 4 of the agreement, which
makes it plain that the SP shall act as
independent service provider and shall not be
deemed to be the agent of the Bank except in
respect of transactions/services which give rise to
Principal Agent relationship by implication. SP has
been cautioned not to hold out or represent
himself/herself as agent or employee of the Bank.
Further, it was also specially provided that the SP
shall not be entitled to claim permanent absorption
or any other claim or benefit against the Bank and
the relation shall be principal to principal basis.
W.P.(C) No.32402 of 2022 Page 97 of 130
27. Under Clause 5 of the agreement, the
responsibility of complying with the provisions of
all applicable laws concerning or in relation to
rendering of services by SP envisaged under the
agreement has also been fastened upon the SP
engaged and they are required to maintain all
necessary licenses, permissions, approvals from
relevant authorities under the applicable laws
throughout the currency of the agreement.
28. Coming to the nature of payments to be made by
the Bank to the SP for the services rendered, it is
specifically provided under Clause 5.1 that the SP
shall be paid fees and commission in the manner
detailed in the Schedule B annexed to the
agreement subject to deduction of income tax
whenever required under the provisions of Income
Tax Act by the Bank. All other taxes including
Service Tax, Duties and other charges which may
be levied are also agreed to be borne by the SP.
The cost of field devices i.e. equipments required
for carrying on SP activities at customer service
point is also required to be borne by the SP from
his own sources.
29. Thus, apparently, the agreement entered into
between the parties was a contract for
service and not a contract of service.
30. As laid down by a Full Bench of this court in the
matter of „Akhil Raj Rajya Hand Pump Mistries
Sanghathan Vrs. State of Rajasthan‟, 1994 (1)
WLC 1, there is a clear distinction between a
contract of service and contract for service. A
contract of service does give rise to aW.P.(C) No.32402 of 2022 Page 98 of 130
relationship of master and servant but a
contract for service does not give rise to such
a relationship. The distinction in two concepts,
though fine and subtle is nonetheless real. It is
easy to distinguish one concept from other though
it may be difficult to formulate the distinction
precisely.
31. There cannot be any quarrel with the proposition
that the court can always lift the veil to find out
true fact situation so as to do complete justice
between the parties to the lis. But, in the instant
case, as discussed hereinabove, under the
Scheme, it is not only the individuals but other
entities may also be engaged as BCs and the
status of an individual engaged as BC vis-a-vis
other entities engaged as BC, is not different and
thus, it is difficult to accept that in respect of
individual BCs engaged, there exists a master and
servant relationship, which obviously cannot be
recognized for other entities engaged. Moreover,
the unequivocal terms and conditions incorporated
in the agreement entered into between the parties
regarding the nature of the services to be rendered
by BCs, the mode of payments for services
rendered, the term of engagement & termination
and the responsibility fastened on the BCs
engaged, clearly indicate that the contract
between the appellant Bank and the respondents
was a contract for service and not a contract of
service giving rise to master and servant
relationship. Thus, the conclusion arrived at
by the learned Single Judge merely on the
basis of procedure adopted for theirW.P.(C) No.32402 of 2022 Page 99 of 130
engagement which includes issuance of
advertisement, eligibility criteria etc. that
there exists employer and employee
relationship between the BCs and the Bank,
without examining the terms and conditions
of the agreement in their entirety, in our
considered opinion, is erroneous and cannot
be sustained.
32. The learned Single Judge has observed that one
set of contractual employees cannot be replaced
by another set of contractual employees unless
their conduct and performance is under cloud. But
in the instant case, it was not even the case set
out by the respondents that while terminating
their engagement as BCs, other individuals were
being engaged by the Bank as BCs. To the
contrary, the grievance of the respondents was
that their engagement as individual BCs should
not be termed, they should be continued as BCs,
engaged directly with the Bank and should not be
insisted upon for their engagement through
National BCs. A fortiori, having arrived at the
conclusion that there exists no master and servant
relationship between the Bank and the
respondents engaged as BCs, for the parity of
reasons assigned, the question of substitution of
one set of contractual employees by another set of
contractual employees also does not arise.
33. The learned Single Judge has erred in
arriving at the conclusion that the
respondents contractual employees, could be
replaced only by regularly selected employees
inasmuch as, admittedly, the posts of BCs
W.P.(C) No.32402 of 2022 Page 100 of 130
were never the cadred posts either in SBBJ or
in SBI and therefore, the question of filling of
such posts by way of regular selection, does
not arise.
34. Further, the term of the respondents’
engagement as individual BCs having come to
an end, this court can neither direct the
respondents to extend the term of the
contract nor such contract for service could
be directed to be enforced by this court,
invoking the extra ordinary jurisdiction
under Article 226 of the Constitution of
India. It is open for the respondents to accept or
not to accept their engagement through National
BCs or sue the respondents by availing
appropriate remedy available under the law for
breach of the contract, if any. It is pertinent to note
that Clause 11 of the last agreement entered into
between the parties, a copy whereof is placed on
record, any or all disputes, controversies and
conflicts arising out of the agreement in connection
with the agreement or the performance or non-
performance of the rights and obligation set forth
or the breach termination invalidity of
interpretation thereof, shall be referred to
arbitration in terms of Arbitration and Conciliation
Act, 1996 and therefore, it is also open for the
respondents to raise the dispute invoking
arbitration clause incorporated in the agreement
as aforesaid.
35. Coming to the conclusion arrived at by the learned
Single Judge regarding the decision of this court in
Writ Petition No. 4304 of 2018 preferred by some
W.P.(C) No.32402 of 2022 Page 101 of 130
of the respondents viz. Ashish Kumar and others,
suffice it to say that while dismissing the writ
petition as infructuous on account of withdrawal
of the circulars dated 12.04.2017 and 19.05.2017
vide circular dated 17.10.2017 issued by the SBI,
the learned Single Judge declined to entertain the
petition in respect of the reliefs (a) and (b) referred
supra, stating that no writ can be issued granting
such declaration and the respondents herein
should approach the appropriate form/authority in
accordance with law for declaration sought for
and thus, the fresh petition filed by the
respondents who were petitioners in the earlier
writ petition, claiming the relief (a) and (b) in
respect whereof, the learned Single Judge had
earlier declined to entertain the petition, was not
maintainable.
36. In view of the discussion above, we are not
agreeable to the conclusions arrived at by the
learned Single Judge while allowing the writ
petitions preferred by the respondents and
therefore, the impugned judgments cannot be
sustained and deserve to be set aside.
37. In the result, the special appeals are allowed. The
judgments under appeal dated 31.05.2018/
01.06.2018/20.06.2018 passed by the learned
Single Judge of this court are set aside. The writ
petitions preferred by the respondents are
dismissed. No order as to costs.”
11.4. Examining the instant case with the support of the
aforesaid decision in the case of State Bank of India
Vrs. Ashish Kumar, 2018 SCC OnLine Raj 2141 this
W.P.(C) No.32402 of 2022 Page 102 of 130
court finds similitude in fact-scenario. It needs to be
highlighted that as per Agreement dated 05.06.2020
the BC is entitled for commission for rendering its
services as stipulated under Clause 8 and the BC can
employ his/her/its/their own workmen for providing
services. Under Clause 7 of said Agreement, the BC is
solely liable and responsible for compliance of
applicable labour laws in respect of its employees,
agents, representatives and sub-contractors and in
particular laws relating to terminal benefits such as
pension, gratuity, provident fund, bonus or other
benefits to which they may be entitled and the Bank
shall have no liability in this regard. These factors
coupled with other conditions already discussed in the
forgoing paragraphs would indicate that the
engagement of the BC can be termed as “contract for
service”.
11.5. In Gole Nur Begum Vrs. Bank of India, 2023 SCC
OnLine Cal 6270 the Calcutta High Court was
considering the fact,
“The present writ application has been filed, inter, alia,
praying for a direction upon the respondent/bank to
absorb the petitioner in service for the post of
business correspondent for Khargram Branch with a
further direction to pay his salary which is due from
October 2013. The petitioner submits that on 26th
November 2009, the petitioner was appointed as
W.P.(C) No.32402 of 2022 Page 103 of 130
Business Correspondent in the Khargram branch of
Bank of India. Unfortunately, in the beginning of
October 2013, the respondent No. 3 suddenly had
asked the petitioner not to report for duty. According,
to the petitioner no formal order of dismissal had
also been issued. No reasons had been assigned for
refusal of employment of the petitioner.”
The said Court held as follows:
“5. By relying on the affidavit-in-opposition filed in
Court today, which is taken on record, Mr.
Majumder submits that the petitioner was neither
a regular nor a permanent employee of the bank.
The petitioner was only a Business
Correspondent and was never recruited in the
bank through a selection process. By drawing
the attention of this Court to a complaint dated 1 st
April 2013 lodged by the respondent No.3 with the
Superintendent of Police, Murshidabad, he
submits that the petitioner and his family
members are pressurizing the branch manager so
as to permit the petitioner to continue with the job
of the business correspondent. It is submitted
that the petitioner has no legal right to
continue as a Business Correspondent or to
be absorbed in the bank.
6. It is still further submitted that the Business
Correspondents are employed by reasons of
exigencies of service and at this stage, there is no
requirement for any Business Correspondent.
7. Having heard the learned advocates appearing for
the respective parties and having considered theW.P.(C) No.32402 of 2022 Page 104 of 130
materials on record, I find that the petitioner
was not appointed with the respondent No.1
through any selection process. Admittedly, the
petitioner was only discharging functions of
Business Correspondent, for a particular period.
The said job is also not perennial in nature.
According to the respondents, the appointment
was made with the objective of ensuring
enhanced financial inclusion and achieving
greater outreach of the banking sector in
accordance with the Reserve Bank of India
directives.
8. Having regard to the same, I am of the view
that the petitioner has no legal right to seek
continuance with the job of the business
correspondent or to seek for his absorption.
Since, the petitioner has no legal right, in my view
the direction upon the respondents to consider the
petitioner‟s representation would not enure to the
benefit to either of the parties.
9. Accordingly, the writ petition being WPA 4306 of
2014 is dismissed without any order as to costs.”
11.6. At paragraph 5 of the writ petition the petitioner has
asserted that “in accordance with the instruction of
Reserve Bank of India the opposite party No.3 (Indian
Overseas Bank) have engaged the BCs as per the list
under Annexure-1 after following prescribed
procedure, i.e., advertisement, interview, technical test
and the pass certificate examination for BC/
Facilitators etc. On being selected in the process of
W.P.(C) No.32402 of 2022 Page 105 of 130
interview as above the successful candidates were
required to execute IBA Model Agreement with the
Bank and in consequence thereof the engagement
orders are issued.”
Such statement of fact appears to be erroneous and
misconceived one. The list of OGB Business
Correspondents enclosed to the writ petition as
Annexure-1 does not reveal that they were engaged by
the Indian Overseas Bank. While refusing to
acknowledge employer-employee relationship between
the OGB and the BC, it has been affirmed by the
opposite party Nos.4 and 5 at paragraph 9 of the
counter affidavit that “The Business Correspondent
are engaged as per Bank’s Circular No. PMT/22/20-
21, dated 03.09.2020. There is no interview or written
examination for selection of BCs. Whereas IIBF
Certification for working as BC is mandatory as per
IBA Circular No.SB/CIR/FI-BC/2019-20/7482, dated
18.06.2019.” It is also asserted by the opposite party
Nos.4 and 5 that “The Bank has issued RFP for
engagement of Corporate BCA for better management
of the business and better technical support as per
approval of the Board of Directors of the Bank (which
includes representative from RBI, NABARD,
Government of Odisha and Sponsor Bank-Indian
Overseas Bank)”. In absence of established fact that
W.P.(C) No.32402 of 2022 Page 106 of 130
there has been employer-employee relationship
between the OGB and the BCs, the petitioner is
misdirected to construe that by virtue of RFP, there
would be change in condition of service.
11.7. Sri Tanmay Mishra, learned Advocate for the opposite
party Nos.4 and 5 drawing factual similitude of the
case at hand in respect of Banking Correspondents
with that of the decision rendered by a Division Bench
of the Patna High Court in the case of Banking
Business Facilitators Association Vrs. The Chairman,
State Bank of India, LPA No.1274 of 2015 and LPA
No.1516 of 2016, vide Judgment dated 30.11.2016
reported at 2016 SCC OnLine Pat 5643 = (2017) 2 PLJR
160 with reference to identical scope and object of
engagement of Banking Facilitators, relationship
between parties, fees and commissions, terms of
termination with expiry of period stipulated in the
Agreement and review of performance, has laid much
emphasis on the following observations made in the
said case:
“14. It is also contended that many High Court have
upheld the action of Bank in terminating the
services of the Business Facilitators, such as the
appellants.
15. ***
W.P.(C) No.32402 of 2022 Page 107 of 130
16. The question to be examined is what is the
nature of the employment? The process of
appointment of Business Facilitators was initiated
on the basis of the Circular of the Reserve Bank of
India dated 25th January, 2006. The purpose was
to ensure greater fiancial inclusion and to increase
outreach of the Banking Sector. The Circular itself
contemplated engagement of Business Facilitators
on payment of reasonable commission. It is
thereafter, the Bank circulated a Scheme on 3rd of
April, 2007. The Scheme also contemplated
payment of commission relating to work
performed. In the advertisement issued, there is
no promise that the Business Facilitators shall be
conferred status of regular employees at any
stage. After selection, the agreement executed
again shows that it is a contract for a limited term
which can be extended from time to time. There is
a specific condition that the Business Facilitators
shall act as an independent service provider and
shall not be deemed to be an agent of the Bank,
except in respect of transactions/services which
give rise to Principal Agent relationship by
implication. With such conditions, in the policy,
circulars and in the agreement, the services of the
appellants are nothing but purely contractual for a
fixed period and on a commission corresponding to
work performed. In terms of the conditions in the
agreement, the appellants are not even the agents
of the Bank and are independent service provider.
Therefore, the appellants cannot claim to have any
right of employment against the Bank either on
basis of doctrine of promissory estoppel or in
terms of the contract.
W.P.(C) No.32402 of 2022 Page 108 of 130
17. If such was the contract, whether the appellant
could make a grievance of their termination of
contracts vide Circular dated 11th April, 2012.
Since the appointment was contractual with
specified condition that it can be terminated in the
manner prescribed in the agreement, therefore, the
appellant could not claim any right to continue
under the Bank. It is the decision taken by the
appellants to leave the Insurance jobs and to join
the Bank, but at no stage, the Bank has directly or
indirectly promised any job security or the fact
that the services will be regularised.
18. The stand of the appellants that the services of the
Business Correspondents have not been
terminated or that the services of Rural Marketing
Recovery Officers have been regularised or that
the contracts of NGOs working as Business
Facilitators have not been terminated will not
confer any enforceable right in favour of the
appellants. Each of the categories is separate and
distinct. The services of the appellants have been
terminated or not extended keeping in view the
agreements executed by them with the Bank.
Since each of the categories, i.e. Business
Facilitators, Business Correspondents and Rural
Marketing Recovery Officers is separate and
distinct, the Bank could frame a policy in respect
of each or all of them in the manner which is
suitable to the economic and the objective criteria
of the Bank. In the matter of policy, where, the
power of judicial review is limited.
19. In State of Madhya Pradesh Vrs. Nandlal Jaiswal,
(1986) 4 SCC 566, the Hon‟ble Supreme Court has
W.P.(C) No.32402 of 2022 Page 109 of 130
held that having regard to the nature of trade and
business, the Court would be slow to interfere
with the policy laid down by the State Government
for grant of licences for manufacture and sale of
liquor.
„34. But, while considering the applicability of
Article 14 in such a case, we must bear in
mind that, having regard to the nature of the
trade or business, the Court would be slow to
interfere with the policy laid down by the
State Government for grant of licences for
manufacture and sale of liquor. The Court
would, in view of the inherently pernicious
nature of the commodity allow a large
measure of latitude to the State Government
in determining its policy of regulating,
manufacture and trade in liquor. Moreover,
the grant of licences for manufacture and
sale of liquor would essentially be a matter
of economic policy where the Court would
hesitate to intervene and strike down what
the State Government has done, unless it
appears to be plainly arbitrary, irrational or
mala fide. We had occasion to consider the
scope of interference by the Court under
Article 14 while dealing with laws relating to
economic activities in R.K. Garg Vrs. Union of
India, (1981) 4 SCC 675. We pointed out in
that case that laws relating to economic
activities should be viewed with greater
latitude than laws touching civil rights such
as freedom of speech, religion, etc. We
observed that the legislature should be
W.P.(C) No.32402 of 2022 Page 110 of 130
allowed some play in the joints because it
has to deal with complex problems which do
not admit of solution through any doctrinaire
or strait jacket formula and this is
particularly true in case of legislation dealing
with economic matters, where, having regard
to the nature of the problems required to be
dealt with, greater play in the joints has to
be allowed to the legislature. We quoted with
approval the following admonition given by
Frankfurter, J. in Morey Vrs. Dond, 354 US
457:
„In the utilities, tax and economic regulation
cases, there are good reasons for judicial
self-restraint if not judicial deference to
legislative judgment. The legislature after all
has the affirmative responsibility. The courts
have only the power to destroy, not to
reconstruct. When these are added to the
complexity of economic regulation, the
uncertainty, the liability to error, the
bewildering conflict of the experts, and the
number of times the Judges have been
overruled by events — self-limitation can be
seen to be the path to judicial wisdom and
institutional prestige and stability.‟What we said in that case in regard to
legislation relating to economic matters must
apply equally in regard to executive action in
the field of economic activities, though the
executive decision may not be placed on as
high a pedestal as legislative judgment
insofar as judicial deference is concerned.
W.P.(C) No.32402 of 2022 Page 111 of 130
We must not forget that in complex economic
matters every decision is necessarily empiric
and it is based on experimentation or what
one may call “trial and error method” and,
therefore, its validity cannot be tested on any
rigid „a priori‟ considerations or on the
application of any strait jacket formula. The
Court must while adjudging the
constitutional validity of an executive
decision relating to economic matters grant a
certain measure of freedom or “play in the
joints” to the executive. “The problem of
Government” as pointed out by the Supreme
Court of the United States in Metropolis
Theatre Co. Vrs. State of Chicago, 57 L Ed
730‟„are practical ones and may justify, if they do
not require, rough accommodations, illogical,
it may be, and unscientific. But even such
criticism should not be hastily expressed.
What is best is not discernible, the wisdom of
any choice may be disputed or condemned.
Mere errors of Government are not subject to
our judicial review. It is only its palpably
arbitrary exercises which can be declared
void.‟The Government, as was said in Permian
Basin Area Rate cases 20 L ED (2d) 312 is
entitled to make pragmatic adjustments
which may be called for by particular
circumstances. The Court cannot strike down
a policy decision taken by the State
Government merely because it feels that
W.P.(C) No.32402 of 2022 Page 112 of 130
another policy decision would have been
fairer or wiser or more scientific or logical.
The Court can interfere only if the policy
decision is patently arbitrary, discriminatory
or mala fide. It is against the background of
these observations and keeping them in mind
that we must now proceed to deal with the
contention of the petitioners based on Article
14 of the Constitution.”
20. In Bajaj Hindustan Ltd. Vrs. Sir Shadi Lal
Enterprises Ltd., (2011) 1 SCC 640, the Supreme
Court held to the following effect:
„21. It is settled law that in the areas of
economics and commerce, there is far greater
latitude available to the executive than in
other matters. The Court cannot sit in
judgment over the wisdom of the policy of the
legislature or the executive. Thus in BALCO
Employees‟ Union (Regd.) Vrs. Union of India,
(2002) 2 SCC 333, it was observed:
„92. In a democracy, it is the prerogative of
each elected Government to follow its
own policy. Often a change in
Government may result in the shift in
focus or change in economic policies.
Any such change may result in
adversely affecting some vested
interests. Unless any illegality is
committed in the execution of the
policy or the same is contrary to
law or mala fide, a decisionW.P.(C) No.32402 of 2022 Page 113 of 130
bringing about change cannot per
se be interfered with by the court.
93. Wisdom and advisability of economic
policies are ordinarily not amenable to
judicial review unless it can be
demonstrated that the policy is contrary
to any statutory provision or the
Constitution. In other words, it is not
for the courts to consider relative
merits of different economic
policies and consider whether a
wiser or better one can be evolved.‟In the same decision in SCC para 39 it was
observed: (BALCO Employees‟ case, (2002) 2 SCC
333, SCC pp. 358-59)„39. In Premium Granites Vrs. State of T.N.,
(1994) 2 SCC 691 while considering the
court‟s powers in interfering with the policy
decision, it was observed at p. 715 as under:
(SCC para 54)
„54. It is not the domain of the court to
embark upon unchartered ocean of
public policy in an exercise to consider
as to whether a particular public policy
is wise or a better public policy can be
evolved. Such exercise must be left to
the discretion of the executive and
legislative authorities as the case may
be.‟ ”
21. In State of Odisha Vrs. Gopinath Das, (2005) 13
SCC 495, the Supreme Court held that scope of
W.P.(C) No.32402 of 2022 Page 114 of 130
judicial review is confined on the question as to
whether the decision taken by the Government is
against the statutory provisions or it violates the
fundamental rights of the citizens or is opposed to
the provisions of the Constitution. The Court said
as under:
„5. While exercising the power of judicial review
of administrative action, the Court is not the
Appellate Authority and the Constitution
does not permit the Court to direct or advise
the executive in the matter of policy or to
sermonise qua any matter which under the
Constitution lies within the sphere of the
legislature or the executive, provided these
authorities do not transgress their
constitutional limits or statutory power. (See
Asif Hameed Vrs. State of J&K, 1989 Supp
(2) SCC 364 = AIR 1989 SC 1899, and Shri
Sitaram Sugar Co. Ltd. Vrs. Union of India,
(1990) 3 SCC 223 = AIR 1990 SC 1277). The
scope of judicial enquiry is confined to the
question whether the decision taken by the
Government is against any statutory
provisions or it violates the fundamental
rights of the citizens or is opposed to the
provisions of the Constitution. Thus, the
position is that even if the decision taken by
the Government does not appear to be
agreeable to the Court, it cannot interfere.
6. The correctness of the reasons which
prompted the Government in decision-making
taking one course of action instead of
another is not a matter of concern in judicial
W.P.(C) No.32402 of 2022 Page 115 of 130
review and the Court is not the appropriate
forum for such investigation.
7. The policy decision must be left to the
Government as it alone can adopt which
policy should be adopted after considering all
the points from different angles. In the matter
of policy decisions or exercise of discretion by
the Government so long as the infringement
of fundamental right is not shown the courts
will have no occasion to interfere and the
Court will not and should not substitute its
own judgment for the judgment of the
executive in such matters. In assessing the
propriety of a decision of the Government the
Court cannot interfere even if a second view
is possible from that of the Government.‟
22. In another judgment, reported as Brij Mohal Lal
Vrs. Union of India, (2012) 6 SCC 502, the
Supreme Court was considering the matter
whether the Fast Track Court established under
the Scheme of the Central Government can be
directed to be continued by the Government. It
was held that that is matter of policy having
financial implications; therefore, there cannot be
any direction to continue with such Scheme. The
Court held to the following effect:
„96. It is a settled principle of law that matters
relating to framing and implementation of
policy primarily fall in the domain of the
Government. It is an established requirement
of good governance that the Government
should frame policies which are fair andW.P.(C) No.32402 of 2022 Page 116 of 130
beneficial to the public at large. The
Government enjoys freedom in relation to
framing of policies. It is for the Government to
adopt any particular policy as it may deem
fit and proper and the law gives it liberty and
freedom in framing the same. Normally, the
courts would decline to exercise the power of
judicial review in relation to such matters.
But this general rule is not free from
exceptions. The courts have repeatedly taken
the view that they would not refuse to
adjudicate upon policy matters if the policy
decisions are arbitrary, capricious or mala
fide.
97. In bringing out the distinction between policy
matters amenable to judicial review and
those where the courts would decline to
exercise their jurisdiction, this Court in
Bennett Coleman & Co. Vrs. Union of India,
(1972) 2 SCC 788, held as under: (SCC p.
834, para 125)
„125. *** The argument of the petitioners that
Government should have accorded
greater priority to the import of
newsprint to supply the need of all
newspaper proprietors to the maximum
extent is a matter relating to the policy
of import and this Court cannot be
propelled into the unchartered ocean of
Governmental policy.‟
98. We must examine the cases where this Court
has stepped in and exercised limited power
W.P.(C) No.32402 of 2022 Page 117 of 130
of judicial review in matters of policy. In Asif
Hameed Vrs. State of J&K, 1989 Supp (2)
SCC 364, this Court noticed that, where a
challenge is to the action of the State, the
court must act in accordance with law and
determine whether the State has acted
within the powers and functions assigned to
it under the Constitution. If not, it must strike
down the action, of course, with due caution.
Normally, the courts do not give directions or
advise in such matters. This Court held as
under:
„19. When a State action is challenged, the
function of the court is to examine the
action in accordance with law and to
determine whether the legislature or the
executive has acted within the powers
and functions assigned under the
Constitution and if not, the court must
strike down the action. While doing so
the court must remain within its self-
imposed limits. The court sits in
judgment on the action of a coordinate
branch of the Government. While
exercising power of judicial review of
administrative action, the court is not
an appellate authority. The Constitution
does not permit the court to direct or
advise the executive in matters of policy
or to sermonise qua any matter which
under the Constitution lies within the
sphere of legislature or executive,
provided these authorities do notW.P.(C) No.32402 of 2022 Page 118 of 130
transgress their constitutional limits or
statutory powers.‟
99. It is also a settled cannon of law that the
Government has the authority and power to
not only frame its policies, but also to change
the same. The power of the Government,
regarding how the policy should be shaped
or implemented and what should be its
scope, is very wide, subject to it not being
arbitrary or unreasonable. In other words,
the State may formulate or reformulate its
policies to attain its obligations of governance
or to achieve its objects, but the freedom so
granted is subject to basic constitutional
limitations and is not so absolute in its terms
that it would permit even arbitrary actions.
100. Certain tests, whether this Court should or
not interfere in the policy decisions of the
State, as stated in other judgments, can be
summed up as:
(I) If the policy fails to satisfy the test of
reasonableness, it would be
unconstitutional.
(II) The change in policy must be made
fairly and should not give the
impression that it was so done
arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of
mala fides, unreasonableness,
arbitrariness or unfairness, etc.W.P.(C) No.32402 of 2022 Page 119 of 130
(IV) If the policy is found to be against any
statute or the Constitution or runs
counter to the philosophy behind these
provisions.
(V) It is dehors the provisions of the Act or
legislations.
(VI) If the delegate has acted beyond its
power of delegation.
101. Cases of this nature can be classified into
two main classes: one class being the
matters relating to general policy decisions of
the State and the second relating to fiscal
policies of the State. In the former class of
cases, the courts have expanded the scope of
judicial review when the actions are
arbitrary, mala fide or contrary to the law of
the land; while in the latter class of cases,
the scope of such judicial review is far
narrower. Nevertheless, unreasonableness,
arbitrariness, unfair actions or policies
contrary to the letter, intent and philosophy
of law and policies expanding beyond the
permissible limits of delegated power will be
instances where the courts will step in to
interfere with Government policy.‟
23. In view of the judgments referred to above, none of
the conditions to challenge the policy decision to
do away the Business Facilitator is satisfied.
Therefore, we find that the decision of the Bank in
terminating the services of the appellants cannot
be said to be illegal, arbitrary, irrational as such is
W.P.(C) No.32402 of 2022 Page 120 of 130
in terms of the agreement entered upon by the
appellants with the Bank.”
11.8. Having thus analysed the merit of the matter, and
having regard to proposition propounded to attack the
policy decisions, this Court is of the considered view
that as the period of Agreement has been ended, there
is little scope to exercise jurisdiction under Article 226
of the Constitution of India to issue writ of mandamus
for extension of the period of Agreement.
Conclusion:
12. On the facts that the petitioner, engaged as BC on the
agreed terms to engage its own workmen for providing
service(s), was required to comply with the statutory
obligations under different laws including labour laws.
The BC was only entitled to fee and commission
towards the services rendered by him. Such
Agreement was for one year subject to extension on
satisfaction by the OGB. The Agreement appears to
have been ended by now and the same has not
extended for the OGB has floated tender inviting
success bidder to engage Corporate Business
Correspondent with Information and Communication
Technology Solutions. No material is placed on record
by the petitioner to show that the BC was to face
interview or written examination for its selection. It is
W.P.(C) No.32402 of 2022 Page 121 of 130
held on the analysis of fact that the Agreement was
entered into between the OGB and the individual BC
as required under the Master Circular. For the reasons
inter alia that there was absence of authorisation by
the BCs, the Odisha Gramya Bank Business
Correspondents Association could not have filed this
writ petition to represent cause of the individual BC.
12.1. Since the employer-employee relationship and matter
relating to claim for regularisation in service is
pending adjudication before the Central Government
Industrial Tribunal, the contention of the counsel for
the petitioner that there was non-adherence of
mandatory requirement under Section 9A read with
Section 33(2) of the ID Act is repelled and the decision
rendered in the case of Jaipur Zila Sahakari Bhoomi
Vikas Bank Ltd. Vrs. Ram Gopal Sharma, AIR 2002 SC
643 = (2002) 1 SCR 284 would not countenance the
cause of the petitioner. Said reported case is
distinguishable on facts. The Agreement in Annexure-
2 reveals the structure of payment was commission
basis and the BC was given scope to engage its
employees and pay them. The BC was also required to
comply with statutory provisions including Labour
Laws as independent employer, the moot question
sought to be answered in the present writ petition
stands answered. Since the industrial dispute is stated
W.P.(C) No.32402 of 2022 Page 122 of 130
to be pending in ID Case No. 34 of 2022 it is left open
for the learned Central Government Industrial
Tribunal to adjudicate on analysis of documents on
facts. Nonetheless, as is evinced from the material
available on record, it is quite natural but to hold that
there is no clarity as to whether the Odisha Gramya
Bank Business Correspondents Association is a
registered or unregistered Association authorised by
its so-called members-BCs to ventilate their grievance
to treat them as employees of the OGB before this
Court invoking Articles 226 and 227 of the
Constitution of India. This Court feels it expedient to
have regard to the following dicta of the Hon’ble
Supreme Court of India laid in the case of Sanjay
Kumar Jha Vrs. Prakash Chandra Chaudhary, (2018)
14 SCR 893:
“13. It is well settled that in proceedings under Article
226 of the Constitution of India the High Court
does not adjudicate, upon affidavits, disputed
questions of fact. In arriving at the finding that the
land offered by respondent-Prakash Chandra
Chaudhary was located within Giriyama Mauza of
Falka Block the learned Single Bench embarked
upon adjudication of a hotly disputed factual
issue, which the High Court, while exercising its
writ jurisdiction, does not do.
***
W.P.(C) No.32402 of 2022 Page 123 of 130
16. It is well settled that proceedings under Article
226 of the Constitution of India, the High Court
cannot sit as a Court of Appeal over the findings
recorded by a competent administrative authority,
nor reappreciate evidence for itself to correct the
error of fact, that does not go to the root of
jurisdiction. The High Court does not ordinarily
interfere with the findings of fact based on
evidence and substitute its own findings, which
the High Court has done in this case. Even
assuming that there had been any error in the
computation of marks in respect of fixed and
movable assets, the High Court could, at best,
have remitted the case of respondent-Prakash
Chandra Chaudhary to the concerned authorities
for reconsideration.
***
19. In exercise of discretionary power of judicial
review under Article 226 of the Constitution, the
High Court might interfere with administrative
matters only if the decision is violative of
fundamental or basic principles of justice and fair
play or suffers from any patent or flagrant error. It
is true that the High Court might rectify, in
exercise of its power of judicial review, an error of
law or even an error of fact, for sufficient reasons,
if the error breaches fundamental or basic
principles of justice or fair play or if the error is
patent and/or flagrant, but not otherwise.
However, even in cases where the High Court
finds an apparent factual error which goes to the
root of the decision, the appropriate course of
action would be to give the opportunity to the
W.P.(C) No.32402 of 2022 Page 124 of 130
authority concerned to rectify the error. It is only in
the rarest of cases, where the factual error is so
obvious that it is rectifiable by the Court itself, that
the Court might, to prevent delay and
consequential denial and/or miscarriage of justice,
rectify the error.
***
21. It is not for the High Court, exercising jurisdiction
under Article 226 of the Constitution of India to
embark upon a comparative assessment of the
suitability of different candidates for appointment
of a dealer of a retail outlet. The High Court, in our
view, should not have decided the factual question
of whether the land of respondent Prakash
Chandra Chaudhary was in Giriyama in view of
the reports of the concerned Additional Collector,
District Magistrate and Circle Officer to the effect
that the land of respondent Prakash Chandra
Chaudhary was in Falka block and not within
Giriyama. The High Court patently erred in
brushing aside the reports of the Revenue
Authorities and arriving at a different finding.”
12.2. Keeping abreast of such settled principle enunciated
by the Hon’ble Supreme Court of India, it is needed to
be highlighted that this Court being conscious that the
pertinent question on fact is subject matter to be
adjudicated in the ID Case No.34 of 2022 by the
learned Central Government Industrial Tribunal, but
the relevant facts have been discussed herein above on
the basis of the documents as made available in the
W.P.(C) No.32402 of 2022 Page 125 of 130
record of the present case for the purpose of answering
the arguments advanced by the learned counsel for
the respective parties.
12.3. This Court finds substance in the submission of Sri
Manoj Kumar Mishra, learned Senior Advocate that
covenants of the Agreement entered into between the
OGB and the BC are in the nature of contract for
rendering service and therefore, it is misnomer to say
that the RFP would change the condition of service.
The period of such Agreement (Annexure-2), i.e., one
year, has already been elapsed; as such, there can be
no direction to the opposite party Nos.4 and 5 to
extend the said period.
12.4. Most significantly, it is acknowledged that the RFP,
being in consonance with the terms of subsequent
Master Circular superseding the earlier ones,
contemplates technological upgradation to smoothen
the functioning of banking business. Such a proposal
is policy decision of the OGB. A faint attempt has been
made by Sri Debendra Mohanta, learned Advocate by
suggesting that such policy is contrary to Guidelines
and Master Circular. Because of new Master Circular
superseding the earlier Circulars/Instructions, the
opposite party Nos.4 and 5 have rightfully proceeded
to invite tender. The RFP has been issued as a policy
W.P.(C) No.32402 of 2022 Page 126 of 130
decision of the OGB in tune with the Guidelines/
Circulars of the Reserve Bank of India and Central
Government. This Court must desist from interfering
with the policy of the Bank. There are no allegations of
unreasonableness, arbitrariness and favouritism.
12.5. The scope of judicial review while examining a policy of
the Bank is to check whether it violates the
fundamental rights of the citizens or is opposed to the
provisions of the Constitution of India, or opposed to
any statutory provision or is manifestly arbitrary.
Courts cannot interfere with policy either on the
ground that it is erroneous or on the ground that a
better, fairer or wiser alternative is available. Legality
of the policy, and not the wisdom or soundness of the
policy, is the subject of judicial review. The scope of
judicial review in policy matters is no longer res
integra.
12.6. This Court considering the submission of the opposite
party Nos.4 and 5 that due to interim Order dated
02.12.2022 being passed, the OGB was unable to
finalise the tender process to procure new Servers for
smooth functioning of the Bank made it clear vide
Order dated 14.12.2023 as follows:
“*** Considering such submissions made by the learned
counsels appearing for both sides, this Court directs theW.P.(C) No.32402 of 2022 Page 127 of 130
opposite party-Bank to maintain the status quo with
regard to engagement of the petitioner by the opposite
party-Bank as 02.12.2022 shall be maintained till the
next date. Further, the Bank is given liberty to proceed
with the tender process. However, any decision taken
in the meantime shall be subject to the final outcome of
the present writ application. The interim order passed
on 02.12.2022 is clarified to the aforesaid extent and
the same shall continue till the next date.”
12.7. Sri Manoj Kumar Mishra, learned Senior Advocate
referred to State of Odisha Vrs. Madan Gopal Rungta,
1951 SCC 1024 and Soumitri Panda Vrs. State of
Odisha, W.P.(C) No.4656 of 2014, vide Judgment dated
27.02.2015 of this Court reported at 2015 SCC OnLine
Ori 76, to contend that Article 226 could not be used
for the purpose of giving interim relief as the only and
final relief on the application. An interim relief can be
granted only in aid of and as ancillary to the main
relief which may be available to the party on final
determination of his rights in suit or proceeding.
12.8. Since it is admitted at the Bar that the industrial
dispute as regards employer-employee relationship vis-
a-vis regularisation in service of the BC is pending
adjudication by the Central Government Industrial
Tribunal in ID Case No.34 of 2022, the writ petition,
without taking recourse of remedy available to the BCs
individually under the statute, is premature; hence,
W.P.(C) No.32402 of 2022 Page 128 of 130
the interim order passed in the instant writ petition
stands vacated. Thus, the prayer of the petitioner “to
quash the SOP under Annexure-11 and declare the
same as illegal, arbitrary, unreasonable and against
the Order of this Hon‟ble Court dated 02.12.2022” is
refused.
13. Ergo, the petitioner-Odisha Gramya Bank Business
Correspondents Association could not successfully lay
challenge in the writ petition against the decision
making process; rather the insistence of the petitioner
to pierce into the decision itself is untenable inasmuch
as nothing is found on record to show that the RFP,
which is outcome of policy decision, is patently
arbitrary, discriminatory or mala fide.
14. Notwithstanding the fact that it is held the writ
petition under Articles 226 and 227 is not
maintainable because of defective representation of the
petitioner-Odisha Gramya Bank Business
Correspondents Association, this Court proceeded to
answer all the questions raised and argued by the
counsel for both sides at the persistence of Sri
Debendra Mohanta, learned Advocate for the petitioner
despite the factual issue of regularization of Business
Correspondents in service vis-à-vis employer-
employee/master-servant relationship is pending
W.P.(C) No.32402 of 2022 Page 129 of 130
before the Central Government Industrial Tribunal.
For the reasons ascribed hitherto, discussions made
supra, and taking note of averments contained in the
pleadings coupled with arguments advanced during
the course of hearing, this Court opines that the writ
petition, being devoid of merit, deserves to be
dismissed.
15. The writ petition is, accordingly, dismissed, but in the
circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN)
Signature Not JUDGE
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal
Assistant (Secretary-in-
charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 20-Jan-2025 17:31:44
High Court of Orissa, Cuttack
The 20th January, 2025//Aswini/MRS/Suchitra
W.P.(C) No.32402 of 2022 Page 130 of 130