1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL WRIT PETITION NO.314 OF 2001 The United Western Bank Ltd. & Anr. ... Applicants Vs. The Secretary, Govt. of India & Ors. ...Respondents Mr.Nitin P. Deshpande, Advocate for the Petitioner Mr.Suresh Kumar, Advocate for Respondent Nos.1 and 2 Mr.D.A.Dube with Mr. N.R. Prajapati for Respondent No.3 CORAM: B.H.MARLAPALLE & SMT.ROSHAN S. DALVI, JJ. DATED : 13TH AUGUST, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE, J.) 1. The Petitioner is a private Banking Company and it has impugned the notification dated 25th February, 2000 issued by the Ministry of Labour, Government of India under Section 5 r.w. Section 7(1) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. By the said notification the Employees Provident Fund Scheme, 1952 was amended and in paragraph 1 Sub-para (3), Clause (b), Item(III), for the words “banks doing business in one State or Union Territory and having no departments or branches outside that State or Union Territory” the words “banks other than the nationalised banks established under any Central or State Act” came to be substituted and consequently the 2 Petitioner Bank was brought within the perview of the Act despite the fact that it had its own provident fund scheme. The Petitioner alleges that this was an arbitrary change and the distinction made between the nationalised banks and the banks other than the nationalised banks is not a reasonable distinction and therefore, the amendment is hit under Article 14 as well as 21 of the Constitution of India. 2. This Petition was admitted for the first time on 2nd May, 2001 and after it was dismissed for default on 17th April, 2009 it came to be restored as per the order dated 7th May, 2009. Despite adjournments from time to time the Respondents did not file any returns so as to oppose the Petitioner. 3. In the meanwhile Mr. Deshpande, the learned Counsel for the Petitioners has placed on record the following 3 judgments of 3 different High Courts, whereby and whereunder the impugned notification has been quashed and set aside by entertaining the very same challenge as raised in this Petition. 1. Writ Petition No.30578 of 2000 decided on 30th May, 2006 by Karnataka High Court (Single Bench). 2. Writ Petition No.15728 of 2001 and all other connected 3 Petitions decided on 24th March, 2008 by the Madras High Court (Division Bench). 3. O.P.No.25270 of 2000 decided on 3rd April, 2009 by the Kerala High Court at Ernakulam (Single Bench). 4. (A) Employees of the Scheduled Banks would suffer a serious deprivation in the quantum of the pension that they would be entitled to draw as per the Pension Schemes that are currently prevailing, if they are taken out of the purview of the Pension Schemes and brought within the purview of the EPF Act and the Pension Scheme framed thereunder and that such deprivation can be resisted by them on the ground that the said action is violative of Article 21 of the Constitution of India. (B) The action of the Central Government, by issuing the notifications in question, may be a piece of conditional legislation or an exercise of statutory power. It really makes no difference qualitatively, in the context of an attack on the ground of Article 21 of the Constitution. The right to life under Article 21 of the Constitution is made subject to a procedure established by law, the law for the purpose of Article 21 of the Constitution could either be a plenary statute or subordinate 4 notifications like the impugned Circular. But the law should also subscribe to the test of reasonableness. Merely because the Central Government is entitled to exercise such powers under Section 1(3) of the Act, does not mean that the notifications are immune from an attack on the ground of Article 21 of the Constitution. The question is whether deprivation of the right to life or right to livelihood is established by the petitioners. (C) Though issuance of a notification under Section 1(3) of the Act to bring an establishment within the purview of the Act does not contemplate a hearing of the establishment, it is only appropriate to note that when an extension of the provisions of the Act or the Scheme framed thereunder is sought to be made applicable to an establishment where there is already a pension scheme applicable to the employees of the establishment, then it is appropriate that the Central Government takes into account and considers whether extension of the Act and the Scheme framed thereunder would bring in any continued benefit to the employees of the establishment so sought to be covered. And (D) There is no material on record to show that the Government had taken into account the contents of the Pension Schemes which are admittedly prevailing in the establishments of the petitioners or the 5 views of the employees or the employers. It would have been appropriate had it been done so. 5.The Division Bench of the Madras High Court in its judgment dated 24th March, 2008 also held that the notification was arbitrary, discriminatory and not based on justifiable considerations. In paragraph 12 to 14 as reproduced herein below the Madras High Court set out additional reasons holding that the notification was unsustainable. 12.Similarly, keeping in view the provisions contained in Section 16, the fact that the concerned banks have already made provisions for payment of Provident Fund or Pension which apparently appear to be beneficial to the employees, the contention that the inclusion of such banks by amending the notification appears to be arbitrary. 13. The petitioners have also highlighted the anomalous position that may emerge among the bank employees if such banks are brought under the purview of the Act and the Scheme as the employees whose pay exceeds particular amount would find themselves out of the umbrella of the benefits presently available. This submission made on 6 behalf of the petitioners also appears to be relevant submission which apparently has not been considered while the impugned Notification was issued. 14.Learned counsel for the respondent placed reliance on various decisions of the Supreme Court upholding the validity of the Act and highlighting the benefits and social purpose. We have not specifically referred to all those decisions as, in our considered opinion, the question is not relating to the validity of the Act or the scheme made thereunder as such but, relating to justifiability of the amendment where under the banks having branches in more than one State, who were not hitherto coming within the purview of the Act because of their own Provident Fund Scheme as per the Sestry Award, are arbitrarily brought within the provisions of the Act. 6. We do not have any material before us to take a different view than the view taken in the above stated 3 judgments of 3 different High Courts and as of now it appears that these judgments have received finality. Hence, we allow this Petition and quash and set aside the impugned notification dated 25th February, 2000 as being violative of the Article 21 of the Constitution. 7 7. Rule is made absolute accordingly, with no order as to costs. (SMT.ROSHAN S. DALVI, J.) (B.H.MARLAPALLE, J.)