Gujarat High Court
For Approval And Signature vs Hindustan Packaging Co Ltd & 2 on 13 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/5596/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5596 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
NM MANNARI....Petitioner(s)
Versus
HINDUSTAN PACKAGING CO LTD & 2....Respondent(s)
Appearance:
MRS SANGEETA N PAHWA, ADVOCATE for the Petitioner(s) No. 1
MR PRATEEK BHATIA FOR NANAVATI ASSOCIATES, ADVOCATE for the
Respondent(s) No. 1 - 3
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/07/2017
ORAL JUDGMENT
Heard Mrs. Pahwa, learned advocate for the petitioner, and Mr. Bhatia, learned advocate for the respondents.
2. In this petition, the petitioner has prayed, Page 1 HC-NIC Page 1 of 10 Created On Sun Aug 13 00:52:32 IST 2017 C/SCA/5596/1999 JUDGMENT inter alia, that: "5(a) Declaring that the impugned order dated 9/4/99 at AnnexureA is wholly illegal, unconstitutional, ultra virus, by way of victimization and colourable exercise of power, void and quashing and setting aside the same.
(b) Directing the respondents to reinstate the petitioner in his original post with continuity of service and with all consequential benefits including the payment of arrears of salary for the period of termination.
(c) Pending admission and final hearing of this writ petition, this Hon'ble Court may be pleased to stay the further implementation and operation of the impugned order dated 9th April 1999 by way of interim relief."
3. The petitioner, who was employed as Assistant Manager with the respondent company, came to be terminated vide order dated 9.4.1999. The petitioner felt aggrieved by the said order. Therefore, he preferred present petition and challenged the order terminating his service. The petitioner has prayed that the order dated 9.4.1999 may be set aside and the respondent company may be directed to reinstate him on original post with continuity of service and all consequential benefits.
4. Since the petition involves dispute related to termination of service of an employee, first question which arise for consideration, and therefore put to learned advocate for the petitioner, is that, how come the petitioner filed petition against order of termination Page 2 HC-NIC Page 2 of 10 Created On Sun Aug 13 00:52:32 IST 2017 C/SCA/5596/1999 JUDGMENT instead of raising appropriate dispute.
4.1 Learned advocate for the petitioner submitted that when the service of the petitioner came to be terminated, the employer i.e. respondent company, was unit of National Dairy Development Board and therefore, the respondent company was covered within purview of Article 12 of the Constitution of India and that therefore, the petitioner preferred this petition and challenged the order of termination. He also submitted that the Court considered the grievance of the petitioner and admitted the petition vide order dated 6.12.1999.
5. It appears that thereafter, some discussion between the petitioner and the respondent company ensued for overall settlement, however, any amicable settlement did not materialize.
6. Now, the petition is listed in Today's Board for Final Hearing.
7. At the time of final hearing of the petition, learned advocate for the respondent company submitted that in view of the fact that the petition involves question of termination of service of an employee / officer which, in turn, involves several disputed issues of facts, the Page 3 HC-NIC Page 3 of 10 Created On Sun Aug 13 00:52:32 IST 2017 C/SCA/5596/1999 JUDGMENT petition may not be entertained because determination of the issues would necessitate documentary and oral evidence including cross examination and the said process would not be feasible in present proceedings.
8. Learned advocate for the petitioner further submitted that though it might be that when the petitioner filed the petition, the respondent company could be considered within purview of Article 12 of the Constitution of India, the said position and status of the respondent company have now completely changed and that therefore, the petition is not maintainable and does not deserve to be entertained.
9. Learned advocate for the respondent company submitted that actually, even at the stage when the petition was filed, the respondent company had opposed the maintainability of the petition on the ground that the company would not come within purview of Article 12 of the Constitution of India, merely because it is a subsidiary of National Dairy Development Board. It was claimed by the company that the respondent is essentially a limited company incorporated and registered under Company's Act and the company does not discharge any public function, but it is engaged in business and commercial activity viz.
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C/SCA/5596/1999 JUDGMENT
packaging and that therefore, its activities are of private character.
Learned advocate for the respondent company also contended that the dispute raised by the petitioner also does not involve any issue related to public function and the relation between the petitioner and the respondent company was of contractual nature which came into existence by virtue of contract of employment and that therefore also, the petition should not be entertained.
10. As his last submission, learned advocate for the respondent company submitted that even if it is assumed that at the time when the petition was filed, the company might come within purview of Article 12 of the Constitution of India, however, in view of subsequent development, the said character and status of the company are completely changed, inasmuch as pursuant to merger scheme whereby the company has amalgamated with Tetra Pak Converting (India) Limited and Tetra Pak Flexible Packing Systems Limited and since then it is not subsidiary of National Dairy Development Board and that therefore, the petition against the respondent company would not be maintainable.
On this count, learned advocate for the petitioner relied on the details mentioned in Page 5 HC-NIC Page 5 of 10 Created On Sun Aug 13 00:52:32 IST 2017 C/SCA/5596/1999 JUDGMENT paragraph Nos.3 to 8 of the reply affidavit, which read thus: "3. I state that I am filing the present reply only for the limited purpose of clarifying the situation as to the maintainability of the petition with regard to the change in the status of respondent no.1 HPCL company from partial subsidiary of Tetra Laval Holding and Finance Limited (hereinafter referred to as "TLHFL" for the sake of brevity), a Swiss company of 100% subsidiary of the same to a full 100% subsidiary company.
4. I state that before HPCL became 100% subsidiary of TLHFL Finance limited, 80% of HPCL shares were owned by NDDB.
5. I state that vide agreement dated 1.7.1999 TLHFL purchased 4,80,000 shares from NDDB.
At this time, TLHFC had thre more companies in existence registered in India, viz. (i) Tetra Pak India Limited, (ii) Tetra Pak Converting (India) Limited and
(iii) Tetra Pak Flexible Packing Systems Limited.
6. Thereafter with a view to integrate the business under one name, an amalgamation petition came to be preferred under section 391, 394 of the Companies Act, 1956 for the amalgamation of Tetra Pak Converting (India) Limited, Tetra Pak Flexible Packing Systems Limited and the newly acquired HPCL with Tetra Pak India Limited and vide order dated 30.3.2000 the scheme for amalgamation was allowed. Annexed hereto and marked as "AnnexureI Colly." is a copy of the order along with the sanctioned scheme for amalgamation.
7. It is pertinent to note that as per the scheme, the amalgamation was effective from 1.4.1999, which was sanctioned as per the Court's order dated 30.3.2000.
8. Thereafter Tetra Pak India Limited changed its name to Tetra Pak India Private Limited in September, 2001, and thereafter is carrying on business under the name and style of Tetra Pak India Pvt. Ltd. as is mentioned in the cause title of the present affidavit in reply."
11. In addition to the said details, learned advocate for the petitioner also placed reliance on the decision dated 19.9.2016 rendered in Special Civil Application No.10996 of 2002 [in case of Kalpana Yogesh Dhagat, Since Deceased Page 6 HC-NIC Page 6 of 10 Created On Sun Aug 13 00:52:32 IST 2017 C/SCA/5596/1999 JUDGMENT Through Legal Heirs v. Reliance Industries Limited] wherein this Court held that even if at the time when the petition is filed, the opponent company fall within the purview of Article 12 of the Constitution of India, however, on subsequent change in the status and character of the company, which takes out the company from purview of Article 12 of the Constitution of India, the petition would not be maintainable.
12. Learned advocate for the respondent company relied on the said judgment and submitted that the petition may not be entertained and the petitioner may be relegated to appropriate remedy.
13. Ms. Pahwa, learned advocate for the petitioner submitted that the petition may not be disposed of on the said ground. She submitted that the character and status of the company at the time when the petition was filed should be taken into consideration. She placed reliance on the details of the composition of the company (at the time when the petitioner filed the petition) mentioned in paragraph No.3(c) of the petition. On the strength of the said details, learned advocate for the petitioner submitted that at the relevant time, the company was within purview of Article 12 of the Constitution of India and Page 7 HC-NIC Page 7 of 10 Created On Sun Aug 13 00:52:32 IST 2017 C/SCA/5596/1999 JUDGMENT therefore, now, the petition may not be disposed of on the ground that the company is not a State and therefore, the petition should not be entertained.
14. The said contention is already considered and decided by the Court in above referred decision. After considering the said contention and various other contentions in light of the decisions by Apex Court and other decisions as well, the Court, in the said decision, accepted preliminary objection as regards the maintainability of the writ petition and held that the writ petition would not be maintainable.
In the said case, when the petitioner employee filed the petition, she was employee of the Indian Petrochemicals Corporation Limited. The said corporation was considered a State within meaning of Article 12 of the Constitution of India. However, subsequently, the said corporation, in a scheme of amalgamation, merged with Reliance Petro Investment Limited and thereby it lost character and status within purview of Article 12 of the Constitution of India. In background of said facts, the Court observed and held that: "58 For all the foregoing reasons, the preliminary objection as regards the maintainability of this writ application is upheld. I hold that this writ application is not maintainable against the Reliance Industries Limited.
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59 This writ application is disposed of with liberty to the legal heirs of the original writ applicant to approach any other forum for the redressal of their grievance if so advised. The time spent by the writ applicant in prosecuting the present proceeding shall be taken into consideration for the purpose of limitation in case the writ applicant choose any such remedy where the question of limitation would be relevant."
15. In this view of the matter, this petition cannot be maintained.
Therefore, the petition deserves to be disposed of and the petition is accordingly disposed of in light of the judgment dated 19.9.2016 rendered in Special Civil Application No.10996 of 2002.
15.1 It is clarified that in view of the said decision, this Court has not entered into the merits of the grievance of the petitioner and this Court has not expressed any opinion so far as the main dispute raised in the petition, i.e. against illegal termination, is concerned.
15.2 The petitioner would be at liberty to approach appropriate form, if the petitioner wants to agitate the dispute and grievance.
15.3 It is also clarified that all contentions of both sides including the contention on the ground of limitation, delay, pendency of the petition in the interregnum, etc. are kept open and alive.
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C/SCA/5596/1999 JUDGMENT
With aforesaid observations and
clarifications, present petition stands disposed of. Rule is discharged. Interim relief, if any, granted earlier, stands vacated forthwith.
Sd/-
(K.M.THAKER, J.) kdc Page 10 HC-NIC Page 10 of 10 Created On Sun Aug 13 00:52:32 IST 2017