Gujarat High Court
Yogesh vs Union on 6 October, 2010
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/472/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 472 of 2010
In
SPECIAL
CIVIL APPLICATION No. 8556 of 2004
With
CIVIL
APPLICATION No. 2785 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=================================================
YOGESH
KANUBHAI PATHAK & 3 - Appellant(s)
Versus
UNION
OF INDIA & 2 - Respondent(s)
=================================================
Appearance :
PARTY-IN-PERSON
for Appellant(s) : 1 - 4.
MS ARCHANA U AMIN for Respondent(s) :
1,
MR PRAFUL J BHATT for Respondent(s) : 2 - 3.
MR MAULIK SHAH
for NANAVATI ASSOCIATES for Respondent(s) :
2,
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 06/10/2010
CAV
ORDER
(Per : HONOURABLE MR.JUSTICE ANANT S. DAVE) This appeal under Clause 15 of the Letters Patent arising out of the order dated 18.12.2009 of the learned Single Judge passed in Special Civil Application No.8556 of 2004 by which prayer of the petitioner to direct the respondents to allot 1350 shares in the name of petitioners No.1.2, being legal heirs of the deceased employee of IPCL, as per the terms and conditions of the Scheme of Government of India for allocation / transfer of 1,24,10,240 equity shares of the face value of Rs.10/- each of IPCL to its employees, is not accepted on the ground that the writ petition is not maintainable under Article 226 of the Constitution of India and it will be open for the petitioners to approach the Civil Court for redressal of their grievances.
2. This appeal is argued by party-in-person , who also submitted written arguments.
3. Before we proceed to deal with the submissions made by the party-in-person, based on written arguments and grounds raised in memo of appeal, it is necessary to give brief facts of the case.
3.1 The petitioners are legal heirs of deceased - Kokila Yogesh Pathak, an employee of IPCL, who died unnaturally on 26.10.2003.
3.2 The Government of India has introduced a scheme offering for transfer / allocation of shares of IPCL to its employees on 29.04.2004 whereby it was decided to allocate / transfer, in one or more installments the legal or beneficial ownership up to 5% in aggregate of the paid up share capital of the company to the employees of the IPCL. For availing benefit of the above scheme, certain conditions were required to be fulfilled viz. that the employee should be alive at the time of making application for such allocation / transfer and such employee should have been on the rolls of IPCL as on 04.06.2002 before the transfer of management control to the strategic partner and thus the above eligibility criteria would make it clear that only those employees who were on the rolls of IPCL as on 04.06.2002 and made application for allocation of transfer in person, were eligible for such allocation or transfer of shares. Besides, the Government of India had sole discretion to determine the mode and manner for such transfer. As per the above Scheme of the Government of India, the shares were to be transferred to the employees and not to the family members as inheritance.
3.3. In view of the above scheme, legal heirs of the deceased - Kokilaben Pathak, who was serving with the IPCL and died on 26.10.2003 leaving behind, her husband and three children who are petitioners herein, made a representation to the respondents for seeking allocation / transfer of 1350 shares in their names, though deceased - Kokilaben Pathak was not alive as on the date of introduction of the Scheme on 29.04.2002. The above representation did not find favour with the authorities and, therefore, writ petition was filed before this Court.
4. In view of the above factual scenario, we are of the opinion that it is not necessary for us to decide the question about maintainability of the petition under Article 226 of the Constitution of India and whether or not the respondent Nos.2 and 3 are the State within the meaning of Article 12 of the Constitution of India.
5. The party in person appearing on behalf of the petitioners - appellants submitted that on 04.06.2002 Kokilaben Pathak was alive and was on rolls of IPCL as an employee and, therefore, denial of benefit of allocation / transfer of the shares in favour of her legal heirs by the authorities is unjust, unreasonable, discriminatory, arbitrary and violative of Article 14 of the Constitution of India.
5.1 According to him, having rendered services with the Government of India undertaking for more than 25 years and pursuant to policy decision taken by the Government of India and its strategic partner for disinvestment of 26% of the equity of IPCL as per share holder agreement to offer equity shares of the company constituting approximately 5% paid up shares to the eligible employees of the IPCL is an action of the State authorities and such benefit ought to have been extended to the legal heirs of the deceased employees who were alive on 04.06.2002 as per the Scheme. It is further submitted that even those employees, whose contract of employment over IPCL was severed on account of VRS, were also granted the benefit, but the same benefit was not extended / granted to the legal heirs like the petitioners. That denial of such benefit by the respondents on the basis of cut off line is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. It is further submitted that there is no rationale or justification behind such cut off line and same deserves to be set right by this Court. In support of his arguments, reliance was placed on the decision of the Apex Court in the case of D.S.Nakara v. Union of India [(1983)1 SCC 305].
6. Learned counsel for the respondent adhered to the stand taken in the affidavit and written submissions filed in the writ petition before the learned Single Judge and submitted that contentions of party in person lacks merit and appeal deserves to be dismissed. Learned counsel for the respondents jointly submitted that when a suitable direction is given by learned Single Judge to avail alternative and efficacious remedy of suit, this court would not like to interfere with such direction of learned Single Judge issued in exercise of powers under Article 226 of the Constitution of India.
7. Having heard the party-in-person and on perusal of the record, including written submissions filed by the party-in-person and the scheme framed by the Department of Chemicals and Fertilizers, Government of India, we are of the opinion that there is no force in the submissions of party-in-person. Admittedly, the above Scheme was introduced by the Government of India offering for transfer / allocation of shares of IPCL to its employees on 29.04.2004, while Kokilaben Yogesh Pathak, wife of the party-in-person died unnatural death on 26.10.2003. If the Scheme is closely perused, the criteria for eligibility would make it clear that only those employees who were on the rolls of IPCL and alive as on 04.06.2002 were eligible for such allocation / transfer of shares. Therefore, as on 04.06.2002, though Kokilaben Pathak, the deceased employee, who died unnatural death on 26.10.2003 was on muster roll but not alive. Besides, as per the Scheme it was the offered by the Government of India which had sole discretion to determine the mode and manner for the transfer. The Scheme further stipulates that the shares were to be transferred to the employees and not to the family members as inheritance. Therefore, no right accrued, acquired much less crystallized in favour of legal heirs or the family members of the deceased employee Kokilaben on 04.06.2002. Thus, legal heirs / family members of the deceased employee of IPCL were not entitled for the shares as claimed by them.
8. The decision relied upon by the party-in-person in case of D.S.Nakara (supra) has no application to the facts of the present case inasmuch as the case before the Apex Court was pertaining to homogeneous group of petitioners and in that context cut off line / specified date in the memorandum issued by the Ministry of Defence to get benefit of the revised formula for computation of pension prescribed therein was held arbitrary, unreasonable and violative of Article 14 of the Constitution of India. At the same time, benefits extended to the employees, who had offered VRS, but alive and on muster roll of IPCL as on 04.06.2002, also cannot be compared with legal heirs and family members of the deceased employee.
9. Considering the totality of the facts and circumstances of the case, we are of the opinion that this appeal lacks merit and accordingly it stands dismissed. Notice discharged.
Consequently, Civil Application for stay stands disposed of.
[S.J.Mukhopadhaya, C.J.] [Anant S. Dave, J.] *pvv Top