Karnataka High Court
P Muthu Pandy S/O V. Paraman vs India Tourism Development Corporation ... on 14 October, 2009
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA
DATED THIS THE 14J"DAy.oE A
THE HON'BLE MR. ANAI§ID..EyR;{xREi§DY i
WRIT PETITION oi: 2o03g(sI+i'TR)
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WRIT PETITION 1\To.'5;Z_2_1_«., OEZQC4 (s--TR1
WRIT PE_TjTIc$3f§I or? ?2e1o0_3gS-TR)
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1. P.1\/I;itiIIe1Pandy«.'g'* S 6\).VB1An.ALM/uk.9-a.. .
S/0. Vi.'»ParaInan, F'-. .<,;..-L.-» H1'v~'5ifL MT'
;A'ge_d about 52 years,
"iEx;eIeut.ive Chieffirade - I,
The .(.3rarI'd Ashok Bangalore,
" Bai1gaIoVre._¥_j.560 00:
Narayanan,
S./'oi; Late. Krishna Iyengar,
Aged" about 52 years,
Manager ----- Engineering,
' The Grand Ashok Bangaiore,
Bangalore -- 560 001 PETITION ERS
(By Shri.Joshua H. Samuei, Advocate for petitioner No.1 and
Shri. D. Leelakrishnan, Advo 'ate. for etitioner No.2)
L g {M p
@_ Shv'? Kvpvabkktna K550, |€0>3«fxn~AD~\i I~Jo.2~.)
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_A..,1\.i_D_I
1. India Tourism Deveiopment
Corporation Limited, , .4
Having its Registered Oifi.c_e'-.
At Scope Complex Core --
66° Floor, 7, Lodi R0.ad,
New Delhi --- IIOVGQS'; _
Represented by its A V
Managing Director.-"' .
2. Kumarakrupaiaifrontier *Hote_1s V V
Private Li_rr:tted;"-- .
(A__(_}oV'e1jri1r1e:§1t_of.Ii';.:£ia iindertaking),
Havinga'i~ts5 .Regiisteredw.iOffice,
At Room N o['i-2,'t2,m"F_1oor, '
Block No. '1' '1, CGO"Co'n2p'1ex,
LodiiR.oad., a '
New Deih_1f --' 1 1'0 001
.. « .{Rep1'esented"b.y_its . Director
a . Biagrarngjtels Limited
Having it.sf"Registered Office
' . "At Baraiihamba Lane,
''-«...New Deihi --- I 10 001
Represented by its
C' .. , _ Chairman and Managing Director,
_ L Laiix Suri RESPONDENTS
V t:By Smt. Shweta Bharti, Advocate for M/s. Aarnste] Law
V "Associates for respondent no.2)
This Writ Petition is filed under Articles of
the Constitution of India praying to qtiash-.,,.the.:'~ orders ._of'g_
transfers dated 10.06.2003 issu_ed.. by respondent "no;_3 'ivide; 0'
Annexure M and N to the I" and 2" etit'ione,r's;..R-esnectivel ,
declaring the same as illegal, irfregistlar, arb-itrary,,c'a_p1*i,eious,
rnalafide and not sustainable miaw and" direct
respondents to continue t-he"'~..petitiVon.ers--._in Hoteil Ashok,
Bangalore and Airport Ashok'aRes,taurant,., Bagaliore Airport,
Bangalore on the existing tertnsaird eondition's"'o'f employment
under the respondent r1.oi,"l _corporati'ont.-i pp
WRIT P.ia:_1_if*r1Cisi§i,;No,,;5,7s1 1 or ?>,,oo4tS"i§TR)
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Sh1'i,i\;§. 0' A
Major,' A _
Residing at No.,l'fi._--B,~--._
5m;C'r'o_ss,
Narzdiduma Road," """
'}ayam'ahal,;Ex,tension,
"'B_a1'1ga_'lo,rev ~44 560 046 ... PETITIONER
Sh;"i.i['Jo.shua H. Samuel, Advocate for Cariappa And
Cornpany for petitioner)
1. India Tourism Development
Corporation Limited,
Having its Registered Office,
At Scope Complex, Core 8,
7, Lodi Road,
5
New Delhi -- I10 003 _
By its Chairman and Managing Director"-«._ ' 4
2. The General Manager
Hotel Grand Ashok, A
Kumara Krupa High Grounds;._"
Bangalore -- 560 001' -A
3. Bharat Hotels I;.i.n1ited..t""'
A Company Rte-gilstered _
Companies Act, 1956,
Having its Regist'ei"eéj'Ot'fi§3e,
At v~
New neiajV¢+ 110001,. A M
Represe'11,ted'i3y itlsflhairrnani A
V .. An_d"Mana gin g ~DireCtoi~. . V
4. Kt1rnarakrulp'aA'Frontgier Hotels
Priv-ate'vLirr1iteL~', " "
; ' " Having" i.t_s"Regis.tered Office at:
;_Ro<.)m No.' I_2','"2"d Floor,
g 3 iB1Lo.ck«-No.l 1, CGO Complex,
. Lpailnoa,d,
Delhi RESPONDENTS
x(gBy Nvljevadas, Senior Central Government Standing Counsel
«j ran d tN .1 f
gé 2&9; Mfivmk 8?' a~§u'V\-A'3>.
EK Ce-meta; \Au;»>°--'~'--~
This Writ Petition is filed under Amfc1¢sj--a22c:lir;;ijd 227
the Constitution of India praying jqi'uas'h.A.'of
transfers dated l0.06.2003.a'i.susued" respw.);nd.e'nt.V.V
Annexure«M and N to the Vléiespectively,
declaring the same capricious,
malafide and not to direct the
respondenpfig in Hotel Ashok,
Bangaloreig Bangalore Airport,
Bangalore and conditions of employment
under the"resipond'ent 'no. lfiorporation.
T_he,se4._dpe.titi0ns having been heard and reserved on
H 'coming on for pronouncement of orders this
day, itheiiC;To:.i1rt delivered the following: --
ORDER
These petitions are heard anddisposeéd of'tio¥getherfhav--ingi j regard to the common circumstancesinvolved.' * . 2 V' i
2. In the first of these then follows:
The Indian 'Corporation Limited (ITDC for brevity) year 1996 by the of Tourism, as an Corooration--incorporated under the a Government Company under Section 6.17 of Act.
it of ITDC is to develop the infrastructure to };'iijomo,te thofuriism in India. It has established a hotel chain known n as tAshok Group. It has hotels in aimost all major cities of ii Hotel Ashok Bangalore isfffch. The corporation has secured other Divisions and allied activities. It is not in dispute that ITDC is amenable to the writ jurisdiction of this Court. 3 The Second--respondent is also a Goverxninentiyifl undertaking promoted by ITDC 'forthe"p:1r1s.ose«of"i:gifJing:'efiect V 1'. to a Scheme of Dernerger. Itwasianp-arentlytjineorporateydito take over Hotel Ashok at Bangyalore El}Ii)t':l'17t_iift'r'}i':I"I1..:(;ifL*i1'tE1iI'l other hotels in the country. i.t1coItpio:r_ated*.itn the year 2002. The 'services of ITDC as Hotel A" in the year 1975. After trairzriinéhe -~ IL in the year 1978, at He was promoted as Sous Chef atygjisioszaiarrr Madurai Ashok, Madurai. He was then Hotel Ashok, Bangalore in the year 1989. He was i '- Ertecutive Chef Grade -- II in the year 1993 and as 1r"ixeoiiitiye.iChief Grade -- I in the year 1998. He was working in " it that capacity as on the date of the petition. The second--petitioner joined the services of ITDC in the year 198i as an Assistant Manager (Engineering) and was 'é posted to work at Hotel Ashok Bangalore. He was transferred to Lalit Mahal Palace Hotel, Mysore in l985. iiiheiiiwxas transfefiredhteo 31/(eOa\1i_8.if"i§B§§S ok Beach Re e was transisdired-«.tof.Hote1._ Ashokp Bangalore and promoted as Manager.-He? was' WorE§i'nig.___irrA;;that i capacity as on the date of the pet_itioni'v. 2 Soon after the incorporat_iion._,_of_the Sec«ond respondent in the year ax dernerger was entered into between lTDCi"ar_1dtheV.seeond"1:es'pondent. But as the Department of Conlpapny i/Xffairsii had not given its formal approval of the ' the.._second respondent did not hand over the properties ~. ofHoteil'_"_Asli;o'lc, Bangalore. Hence, the petitioners continued to be epmpioyées of time.
in November 2001, the petitioners learnt that ITDC proposed to lease out Hotel Ashok Bangalore to the third respondent. The petitioners and others expressed their 5 r apprehensions in respect of such a move. ITDC replietito state that their interests would be safewguarded. And Management agreement dated respondent leased Hotel Asholc Restaurant Bangalore to the.t'ni_rd respondent of years, and transferred all ITl5C:iemployee.si_ixivorkzing therein, including the petitionersi:t'to the 'reisp:ionndent.
The Chairman of by a letter dated 29.1il.._2()(:)l,' igftttei"sta£r of Hotel Ashok Bangalore that the thlrti"~«f3spQi'lLi_€l1C_ih&.ti taken over the management of the H_o*te:1;.ga1idp Solici't'ed"co--operation of all concerned. This was _rettot;t~e;'a15y.:a;.sinai1at letter from the Chairman and Managing iD__irectorio'i TTDC endorsing the above circumstance. The Staff i in tuirfraised strong protests.
The petitioners and the Karnataka ITDC Hotels Officers 'T Association, Bangalore filed a writ. petition in WP. No.4264l/2001. before this Court challenging the above actions 3 10 of the respondents. The same was disposed of on in the light of the decision of the apex Court in Union vs. Union of India 2002 1(1)' i.LJ toa1éde« against the same is pending consideration along». vxiti-i'segVe.ral other matters.
Further by separate ,orders' dated iO§06.2003 the third respondent has issued orders'voif:'Vtra~ns'fe'i's. transferring the first petitioner to 'th.es.'third.p respondent'-is' Hotei Inter Continental the Grant R'esort:Cioa.. Chef and the second petitioner to the third "resp.ondent-"dis hotel at Udaipur as Manager .....
said orders of transfer that are chalienged in the present petition.
3. In the second of these petitions, the peti_tioner was appointed as a waiter at Lalith Mahal Palace Hotel, Mysore by ETDC in the year I978. He was later promoted and appointed as '3 ll .21 Junior Executive Trainee. Thereafter he was promoted as Assistant Manager in the year 1989. It is the pet.itji_olnelr'f~scase that in November 2003 ITDC introdueeclp-.:a':.S:chenae"l Voluntary Retirement for its erhployees, 'EXeCt1tiverand'~.. Non--Executive. The petitioner found.hirnselrf"el,igi_bVle apply and made an application on l_9?""December Eiut ITDC had failed to reply. A H' However, by ai.lvei:terfdated;O§5:0_l,:2f)0?lL the petitioner was inforr_ne'd' as Deputy Manager (Hotel Operations) to "Inter continental, the Grand Palace, the""'said hotel was not a unit of ITDC, the , letitlior1erVl';nade a re resentation claimin that as an em lo ee A could be transferred only to any other unit of ITDC it lndia or abroad, as per the terms of his employment. He it "therefore reported for work at Hotel Ashok, Bangalore -- but he i was refused entry. He was informed that the third respondent had taken over the Ho 1 and he was now an employee of the 12 third respondent and that he ought to abide _"the transfer of the Hotel at Srinagar which was "a* uiniitiiiofythe 'third respondent.
It is this action of the respoiidpentsi,'which isgsought to be challenged in this writ._p:c;titi-;jn. ~
4. Tl1e'i,p__Couns__el the"'pet.i.ti_oiiiers in these petitions contends as Trfol_loWs~: » ' ii'~._The respondent, in both the petitions, narnely,iiiM/st. Bh._ara--t_iHotels has no authority to transfer the p_ettiti_oners to iionewof its own units. The petitioners being ~of_jITDC are bound by the Service Regulations of only provides transfer from one unit of ITDC to _ another.
The third respondent is only a lessee of Hotei Ashok Bangalore there is at best a transfer of Management and not a transfer of ownership. There is hence no jural relationship of 3 employer and employee as between the petitioners and the third respondent.
"It is contended even the very lease--.c1im-nianlagement Agreement does not authorize the"'tl1--ird respondent itofltrainsfeirj employees of Hotel Ashok Bangaillorjetoiianyiofithe 1to't§'is.¢f' the third respondent.
It is also contended thatv privity of contract betweenthe'Vpetitiior1ers~~.i;trtd_ the third respondent «~ there can be no vlarialncel 'sis/it'njthe«--._ppterms of service conditions existing between the petitioners and ITDC, on the footing that there is A ' v.,any_Vagreevrner1t between ITDC and third respondent. ~ «l}tv.._is'~ii:;ttr.ged that the contingency of termination of the leasei.agreement between ITDC and the third respondent is not it impossibility. The petitioners who are sought to be transferred to other units of the third respondent -- do report for if duty therein ~ and in the meanwhile' the lease agreement is 5
-14 terminated, the petitioners who continue to be employees of ITDC will have to be reverted. But may in fact be lurch as there may be a situation of the petitioners'inotfbeiragi' . capable of being accommodated in the..mainstrearn" i It is further contended oiibehalf of the the V second of these petitions,' thatoyeifi'320__ernployeesl of ETDC have been offered the voluntary'retirernentjscheme benefit but this petitioner is' di.scrirninated*aga~inst:fand.is denied the same. It is i the petitioners who have been employees' ti-niithe vpu_biiciise_eitor over the years have been forced int.;:)_j'iirthglyiprivatei'sector; And in the event of the nebulous the third respondent and ITDC being re\vol<edVfor"one reason or the other -- the effect on transfers and ' reelocation of employees of ITDC is not contemplated under the i '-Aagreeinent and hence the same is opposed to public policy. Q
5. Per contra, Kumar Krupa Frontier Hotels Limited has contended that it is formed for the purpose of disinvestment of ITDC and pursuant to a Scheme of de--merger all employees of ITDC at Hotel Ashok became its employees on terms and conditions as applicable on the date of ~ appointed date being 31.03.2000.
Further, with effect theft' lease-cunvmanagernent '~...Agreen1ent j"between" itself and Respondent no.3--all employeesiistood.-transferred to respondent no.3. lt'-- Article 13 of the Agreement adequateljl/0safegulaijds._the.ii* interest and hence there can be no '~ _ on thellpart---91' the petitioners. 0' Rveslpendent no.3 on the other hand contends that it is not---an i.nstrti'haentaiity of State and hence the writ petition is not inaitntainable against it. Further, the orders of transfer made by lllitlflcould not be challenged in the present writ petition. it is 3 l6 contended that the Management of Hotel Ashok, Bangalore is taken over by it in entirety for a period of piT.his includes the services of the employees_.wi_th._cor1ti.nuity<i service of terms and conditions[potinferior "to "the 'te__rrr1sb max. conditions applicable to emiployeesii the cloisii.y;1g,_Vdatle. whether there would be any___employerernployeei relationship between the petitionershand is no longer res- integra and _stands concluded .dec'is'i,on of this court in W.P. wa-siheld all those employees whose names.._ find' place' :_at«.._i:p"AnneXure ~---« B to the Lease--cum--
"l&jIa'riagerr1ient..Agreement dated 29.1 l.200l would be employees , , ., of thei.tl1ird..responderrt. It is therefore contended that there is no i '-- bar to transfer the petitioners to any of its other hotels in India. x the above background the questions that would arise iiiifor consideration is whether respondent no.3 would be amenable to the writ jurisdiction of this court and secondly 8 17 whether the impugned orders could be sustain.eld.'in'l of material available on record.
While the competence entering into Scheme of De-merger' thron medium of M/s. Kumar Krupa Front'ier..':Hotels ._¢f:ipie.p:'s11_bseqtient Lease--cun1_ Management Agreeme'nt:..as ivtliiird respondent and the said in question, it is the scope. on the petitioners, which arises for: " hi i " _ It is seenplthat the Agreement is for a prescribed term and 'A t*3uI:I1'll11f;14il.T)]i.f: in terms of Article 17 thereto. In which event, it ~. geoinstrued that Respondent no.3 acts as an agent of has all the control that ITDC possessed over its 2 'lemployees, immediately prior to the appointed date of commencement of the agreement. And the same is clearly in respect of the business of Hotel Ashok, Bangalore and the 3 18 Restaurant at the Bangalore Airport and does not concern any other unit either of ITDC or the third respondent,....__ljv '4 Article 13 of the Agreement respondents is reproduced hereunder foror:eadyireference_; if' "l3.l The Lessee / Licensee offe1*i'ientp.lo.yment l to all the regular employees 'V'lterfrl1i:;s and conditions that 'shall notllhe to thveliiterrns and conditions as applliea'ble-.ste :the:lre..galar--ernpioyees on the Closing Dateand: continuity of H to the existing voluntary applicable under the guidelines o'f.__the_ljepali-tinent'_.'eof Pubiic Ernterprises, if any, and l ' s..terrhs"set_goiit inlagreernents entered into by the Lessorl ;,.,"t"Licensor inmrelation to such regular employees with "syorl<e1's unions I associations. The Lessee / V further covenants that :
ti"; it shall not retrench any of its regular employees V for a period of one year from the Closing Date other than any dismissal or termination of regular employees from their employment in accordance with the applicable staff regulations and standing orders of the Lessor I Licensor or applicable law.
%
(ii)
(iii) 19 The services of the regular employees will not be interrupted.
Any restructuring of the labour force infhhthe Hotel shall be implemented in them recommended by the Board of Directors * Lessee / Licensee in it applicable laws. In thelievenitlgof any '1reductiQI1:tg_ the strength of the regular employees;
Lessee / Licensee..V_shall" offer V vthefregular employees an op_tion_to.._vvoluntarily retire or terms th_at'=. are n.o.t" "l.§1'._"3§1'y manner, less fayiinrab'lelp than "(a}~ the voluntary retirement . V iselierne _olf~th'e* Lessor /Licensor as applicable as per the" gurdellines of the Department of Public _:Enterprises of the Closing Date and (b) the
(iv) benefits;t'/ compensation required to be ibvstatutorily given to an employee under al.:'va'pplicable law. The compensation shall be it determined on the basis that the services of the regular employees have been continuous and uninterrupted.
In respect of contract employees the terms and conditions of the relevant contracts shall be 'fully observed by the Lessee I Licensee and it shall keep the Lessor I Licensor and ITDC 3 20 indemnified against damages, losses or"
resulting on account of the Lessee _/;"'L'ice'n.s.ee failing to observe any of the iiiiE€gVi'"IIi:S:"~.e1i.411% ' conditions of such contr'a"cts--.«'7 i i It is clear from the above that'-respondent. 3: isifreqtiired to continue the regular emploijiees in serVi---ceiin "Hotel" (as defined in Article pl'-.._.l:;'l_(o'i_)_ oif.itfre_"v.A5rgreement. There is no provision for t._ransfer"'to« fdnj/'* otl_1eri';hote.vl.ii The alternative to reduce the evmpilioyeei strength-._at:HoteliAshok is made available to die third offering an option to voluntarily retire on _t4e1*rnsithaV1'.arepr1ot in any manner, less favourable than the Voluntary"retirement scheme of the lessor as on the closing ,__fHerice respondent no.3, claiming the authority to transfer A. the petitioners to other units belonging to it is not to be found plunder the agreement, on a plain reading of the same. Further, a decision of the Apex Court i_n the case of BCPP Mazdoor Sang}: vs TPC M AIR 2008 SC 336 - which 2l has considered similar questions clinches the case ,irie».fav_our of the petitioners. In that case, the appellants of National Thermal Power Corporatien _ _('NT_'£"C)j "lt_';tra'r1spi.res _that_ when steps were being takenito 7t_rar1sfei"- i Aluminum Company Limn¢a yi(atALc'o)t Wen ior1gina11y'a Public Sector Undemalgging ;» theil_:Go"vernment"efhfndia under a policy of disinvestrnent i'v'ves'ted._:t'iiej.e_r1'tire management to M/s. Sterlite;i'a_}"'riVa.te Seeto'r~ Aggrieved by the tranlsferi Sector Undertaking to a privately managed' reunite approached the High Court of »' . l" iv.F iii"; . .. They .
Cfhattrsgarhgt ?3_1laspu1' by way of a writ petition. / primarily " V thém. .....
ll 'V,_,clralvleVnge'éi;fVclause under an agreement which unilaterally ' 2 l'e.hai1'geld_"--the'i'rl service conditions when they were not parties to avgreeinent. The Apex Court while dealing with the issues " it hays held as follows:
"$21. It is not in dispute that NTPC is a public sector imdertaking wholly owned by the Govermnent of India. Likewise, initially BALCO was aisr) a public sector undertaking and BCPP is whtfliy owned by BALCO 8 22 which. was set up for production of powe,rfj'or«l.,iheir units. Subseqttently in the year 200l,.V__by-.,vt'rt_tteilycif disinvestment policy of the-"'Governmen.t jioflndia, BALCO including BCPP were:'1ira;%tsfé;~r¢d_:}:.;,'"ti%tn,f*:' Sterlite which is a .priTyate concern. the 90 agreement between BAliC:O:"'ai2d wasentered into on 22.05.}"99x0 enabiiitéé 'manage, operate, supervise§lfnalinttiin} and:?cont'i*ol BCPP in all aspects, as per:.ciaase'r conditions deemedllltohlycante opelraltiowfifrom 29.06.1987. Learned senior 501;;-.-a_s?'ei._ appearing for the appellants, " "by.,placin§iI:the rele--vant 'nza.tcr"ial.s, submitted that most Qt" thy'grnpioyeseskwere appointed prior to the l'agreeinlen_t990, however, admittedly they were _n()t.partiesl'to the agreement. In other words, 'a<ic()rding~v.o...ttze employees, the said agreement was '{)t'tl')A»:"l;'JlpaP'Ill(:' i. e., between BALCO and NTPC and that 90 '=vlTtu'tey on the rolls of NPTC on the date of the said V. Agreement without there being party various terms ~ 'and conditions which affect their services are not enforceable against them. The appointment letters of employees are annexed in Vol.1] of the appeal paper book which clearly Show that they were appointed in the year 1987. It is not in dispute that the Agreement was executed on 22.05.1990. In order to bind these employees, the management could have executed a 3 tripartite Agreement by taking their consent. juncture, it is relevant to mention that evena"s'pej~ ;_ ' Agreement, particularly, clause 16.3 ins'i.9ts"-thatiirz. the 0' event of transfer to the successor'organisation-V or new management, the terms and ciandiiiorts ofsitch. transit'e.rf'i1.t.i shall not be inferior t().»thas'e enjoyed by t.~7ie"ernp_loye_es' V on the date of transflersl"Learned.senior counsel appearingfor the.employ'ees out that inasmuch as these persons' as per the StandingaOrders', 1*' Eliiles of transfer is implemented, all: the n'on~'exec*iitive--"employees have to " w'£'.Fkl"'rWith:3:;§1=.pt"iVdI.e c()neern with less benefits and privileges'"coinpa'reai*--toNTPC which is a public sector 'tinciertala?_tg;~«?f'. S N J Thle'vl:ripa'rtite Agreement between NTPC and 4, was entered into on 22.05.1990. It is brought it :to,V_(nirv'notice that the appointments of .236 employees v_.~are4]:made prior to 22.05.1990 and at the time of *~ V frecrttitment and appointment by NTPC, no agreement between NTPC and BALCO was in existence empowering NPTC to make recruitment and appointment on behalf of BALCO. Therefore, as rightly pointed out by learned senior Counsel for the employees, the provision. made in clause 21.0 of the Agreement, the eflective date and duration of 8 24 Agreement w.e.f 29.06.1987 is contrary to tithe provisions of Section 23 of the 1ndian Contract Act also violative ofArticle 14 of the Con.s'tittttion. of ' . By virtue of the aforesaid clause, the ser=vic=e:'eondition 9 has been admitted to be chanigedlto theemployeesdbyi_ giving efiect to the Agreement' 22.05.1990 1' 29.06.1987. Even dtirin[g"~t..tlte c'oztr_.s*e _oj7.1a'}-g'ame;ti.s made prior to 22.05.1_990:_cannot"be_:iterrrted in furtherance of' 22.06.1990. In such circamstancegs, 1 Court that the s'ervices of theiempioyiees'appointed by NTPC are to 'BALCO0in~t~he light of the provisions made.Vin'T'-:;laaSes_:.8.--2' and 16.3 of the bipartite iAgreetne'n.ti tag...2235,1990 between NTPC and not acceptable. Even for the sake of ._._.a;'gument. 'it--------n«*a.s' admitted that the power of attorney _ v;.ta'.a*._g"ivert to NPTC pursuant to the Agreement dated 0 and 29.05.1991, it is only those employees have been appointed by NPTC on behalf of " V ABALCO, pursuant to the said power of attorney, can only be transferred to BALCO. "
And has further held as follows:
"29. The Government or its instramentality cannot alter the conditions service of its employees and 25 any such. alteration causing prejudice cannot be efiected without aflording opportunity of decisional hearing and the same would anio'antjto arbitrary and violative o'f'Article 14. As po-i,nted_i'oat M earlier, in the case on hand," the e_4mployAeet's~ are} neither party to tripartite Agareetnertt nor_ been heard before changing their servicecoyrzditionil Therefore, the action of 'Managernen't'ris violative of Article 14 oj"..the C0h'stitLitio't;i_.of lrttllfl.' Similar view has been Trehan and other vs-UnionA.ofv.,lridia-and {H.989} 1 SCC """ '*6--4_."ln para] l"of*t.he jaa'gr;zent, this Court observed as tinder" .. A' i ' if :lti~s a well established principle of "law tha't--..there ean be no deprivation or curtailment iofanv existing right, advantage or benefit enjoyed by it ' (l(;%te_rntnent servant Without complying with the natural justice by giving the Government l°,.s'ervcznt concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Article 14 of the Constitution. Adtrtitteclly, the employees of CORIL were not given an opportunity of hearing or representing their case 3 26 before the impugned circular was issued by the Board of Directors. The impugnea' circular therefore, be sustained as it offends against the Ru~le's--. 3' V of natural justice. "
30. It is useful to refer to the judg_m'€j;_tII.i{}ffilflls'-.C()I,tt(l'V l f in Jawaharlal Nehru, Un.ive=rs'ity_ vs. " K.S';=--f' Ja watkar and others', 1'9s§-supp ('1 ,~ .SCC_ be-79;"'»t;t'rtitis:
case, Jawaharlal Nehru VUnlive_rs'it_y was thevvappellant before this Ct;Itt:l;~ The ,V-mai'n__'»eontention of the appellant--Universityi- was that tespondent was " appoitztecll . the , » Centre" 'of vPost--Graduate Studies, Iniph(il"Vat't-cl "w,h'e:a_ the' Centre was transferred to 'A/[artipur'r.Unii3ers'ttyhis services were automatically transferred.'-tr) that University and consequently he :could not to be an employee of the appellant- 'Uriiye'tf.sf_ity. The argument proceeds on the if that the Centre ofPG studies at Imphal .~wasf..an independent entity which existed by itself and was not a clepartment of the appellant--Univers'it}=. H Rejecting the said contention, this Court hela.' thus:
"7 ................. .. The Centre of Post--Graduate Studies .was set up at Imphal as an activity of the appellant--University. To given expression to that activity, the Ct])[?£'[email protected]'.S'iIy set up and 27 organised the Centre at linphal and :_.
teaching and administrative stafi' to man _it._Al'S.ince.:'the Centre represented an t2ctiviity"'cvf_ the University the teaching and atlminpistratilve _.s'2fa'1.'j''.-7.tti'si't''«. '' be understood as e'tnp--loyees'-.of the University. In the case respondeflnt,'l'there can be no doubt wltateéver and continttes to be, an employeelof the There is also no*dV0ubt:.tna't« ttivi'e1tjt;7?éi$;ne.??t:'.ifibula not be transferred'. the 'V JAappeilaiét4'Un'iversity to the Manipzir _ Uni without his consent " notwi'th.stanfding"any statittoryl provision to that ejj"ect whetheriirt'-.tAl9t'e sManipm" University Act or elsewhere. , c'ontra'ct' b_of--.._iis'ebrvic'e entered into by the resp'ondent..'-- was contract with the appellant- ; :Un__iversity'a--n.d«no law can convert that contract into 'acontract between the respondent and the Manipttr A :Un_ive.rsVi'ty without simttltaneottsly making it, either .~e.xpres.s'ly or by necessary irnplication, subject to the ~ 'respondents consent. When the Manipur University "Act provides for the transfer of the services of the stat)' working at the Centre o_f'Post-graduate Studies, Imphal, to employment in the Manipitr University, it must be constrtted as a provision enabling such transfer of employment but only on the assttrnption that the em Jloyee concerned is a consentin ' Jartv to I . I .
3 28
such transfer. It makings no diffierence that respondent was not shown in the list of Ats'sr'ista'nt'Vi. l' professors of the appellant-University or":th.at:l'ihe provision was not indicated in its budget.'-= rnu.s"t_ be regarded as proceeding frorn; an ':erroneoii_sH conception of the status oftthe'.t_respondent.v l position in law is c'lear,:r'that no emploly'e:e"l)e:
transferred, without his eon-.sent,tfr()ni' employer to another. The:ac.'onser.ilt l3er.exp.ress or implied. We do not find it any case law in support of thifs c'on'clzision..ifit_ -
8. as._thev__trtinsfer of the Centre of Post-
graduatetfrotn the appellant-University to the Manipurt Univ:{r.sit.3rc'()uld not result in a transfer of 'the employment of the respondent from the one to lithe' 'otlier, it must be concluded that the respondent in the employment of the appellant-
3! U t2Ai_i_'er.s'ity ................ . . ll is clear that no employee could be transferred without his consent from one €mpl()_'y'€t' to another. Therefore, in view of the aforesaid rulings the transfer of employees from NTPC we a public sector undertaking to BALCO which is a private 3 organization is bad in law. ' 9 29
7. In the light of the above and in the circitlrristpances of the case ITDC is not absolved of its Abe,' answerable to the petitioners merely on ac--countiV:oif. _the"Scherne7_ of de--nierger and transfer_.o_f its7-propertiepsi,."_i,3,tA' 'H°ote3li.Ashok Bangalore in favour of retsplondentll' inspfar as the petitioners are concer.ne'el.
Respondent no.3 {acts systead of ITDC insofar as their service'_r:on3ition'svare concerned -- it can also be said that respolrideiit no;3 however, conferred with any authority to transfer the"pe_titioners to any other unit either of ITDC or its ii agreement which has in effect changed the H rAllseryiicel."icoizditions of the petitioners without their consent xi/ould.Vrec;uire the impugned orders to be set at naught. H Accordingly, the impugned orders at Annexure -- M and N in w.r>. No.28700/2003 and Annexure -- E and H in w.1:>. No.5791/2004 and hereby quashed.
5 30 One other contention of the petitioner in respect_.._of his letter of resignation having been withdrawn before it accepted is found tenable. Hence, the letter dated' issued by the third respondent is qiiashed, as thei.:_resign'ation was withdrawn prior to the same, The petitioners on the same terms and conditions. pthehhipeititioners not having rendered any. of these petitions, they Shfi} from the date of the petition./'till »ariesp_ondent no.3 shall also consider the applicationi'---of-the-__petitiorier in W.P.No.579l/2004 seeking
-"'~,...r\/o.l:t1iiata,r§:/ Retireiro;en--t-5"prospectively, from the date of this Sd/--
JUDGE rm