Karnataka High Court
Bharat Hotels Ltd., vs P. Muthu Pandey S/O V. Paraman, on 12 March, 2014
Bench: K.L.Manjunath, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 12TH DAY OF MARCH, 2014
PRESENT
THE HON'BLE MR JUSTICE K L MANJUNATH
AND
THE HON'BLE MR JUSTICE RAVI MALIMATH
Writ Appeal Nos. 4226-27 of 2009 (S-TR)
IN WA NO. 4226/2009
(ARISING FROM WP NO. 28700/2003)
BETWEEN:
BHARAT HOTELS LTD.,
HAVING ITS REGISTERED OFFICE
AT BARAKHAMA LANE,
NEW DELHI - 110 001,
REP. BY ITS SR. VICE PRESIDENT
AND COMPANY SECRETARY
NOW REP. BY ITS
RESIDENT MANAGER ... APPELLANT
[By Sri K Prabhakar Rao, Adv.]
AND:
1. P. MUTHU PANDEY
S/O V. PARAMAN,
AGED ABOUT 59 YEARS,
R/AT NO.25, 'PAVITHRA NILAYA',
BHUVANESHWARINAGAR,
DASARAHALLI MAIN ROAD,
HEBBAL FARM POST,
BANGALORE - 560 054
2
2. INDIA TOURISM DEVELOPMENT
CORPORATION LTD.,
HAVING ITS REGISTERED OFFICE
AT SCOPE COMPLEX CORE-8,
6TH FLOOR, 7, LODI ROAD,
NEW DELHI - 110 003 ,
REP. BY ITS MANAGING DIRECTOR
3. KUMARAKRUPA FRONTIER
HOTELS PVT. LTD.,
(A GOVT. OF INDIA UNDERTAKING)
HAVING ITS REGISTERED OFFICE
AT ROOM NO.12, 2ND FLOOR,
BLOCK NO.11, CGO COMPLEX,
LODI ROAD, NEW DELHI - 110 001
REP. BY ITS DIRECTOR. ... RESPONDENTS
[By Sri Joshua Hudson Samuel, Adv. for
M/s Cariappa & Co., Advs. for R1;
Sri P S Dinesh Kumar, Adv. for R2 & R3;]
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION NO. 28700/2003 DATED 14.10.2009
AND ETC.,
IN WA NO. 4227/2009
(ARISING FROM WP NO. 5791/2004)
BETWEEN:
1. HOTEL GRAND ASHOK
(NOW KNOWN AS LALITH ASHOK)
KUMARAKRUPA, HIGH GROUNDS
BANGALORE - 560 001
REP. BY ITS GENERAL MANAGER
NOW REP. BY ITS
RESIDENT MANAGER
2. BHARAT HOTELS LTD.,
HAVING ITS REGISTERED OFFICE
AT BARAKHAMBA LANE,
NEW DELHI - 110 001,
3
REP. BY ITS CHAIRMAN &
MANAGING DIRECTOR
NOW REP. BY ITS
RESIDENT MANAGER ... APPELLANTS
[By Sri K Prabhakar Rao, Adv.]
AND:
1. MANJUNATH
S/O SRI A N RAMASWAMY
AGED ABOUT 53 YEARS,
R/AT NO. 15-B, 5TH CROSS
NANDIDURG ROAD
JAYAMAHAL EXTENSION
BANGALORE - 560 048
2. INDIA TOURISM DEVELOPMENT
CORPORATION LTD.,
HAVING ITS REGISTERED OFFICE
AT SCOPE COMPLEX CORE-8,
6TH FLOOR, 7, LODI ROAD,
NEW DELHI - 110 003 ,
REP. BY ITS
MANAGING DIRECTOR.
3. KUMARAKRUPA FRONTIER
HOTELS PVT. LTD.,
(A GOVT. OF INDIA UNDERTAKING)
HAVING ITS REGISTERED OFFICE
AT ROOM NO.12, 2ND FLOOR,
BLOCK NO.11, CGO COMPLEX,
LODI ROAD, NEW DELHI - 110 001
REP. BY ITS DIRECTOR. ... RESPONDENTS
[By Sri Joshua Hudson Samuel, Adv. for
M/s Cariappa & Co., Advs. for C/R1;
Sri P S Dinesh Kumar, Adv. for R2 & R3;]
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN WRIT PETITION NO. 5791/2004 DATED 14.10.2009 AND
ETC.,
4
THESE APPEALS COMING ON FOR HEARING, THIS DAY,
MANJUNATH, J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants in these two appeals, who were respondents in WP No 28700 of 2003 and WP No 5791 of 2004, have challenged the legality and correctness of the common order passed by the learned Single Judge in those writ petitions on 14-10-2009.
2. The facts leading to these appeals are that: The appellant in WA No 4226 of 2009 and second appellant in WA No 4226 of 2009 is a company incorporated under the provisions of Companies Act, 1956. The writ petitioners were employed in Hotel Ashok at Bangalore, a unit of India Tourism Development Corporation Ltd (ITDC). When they were working under ITDC, the hotel business of ITDC was given on lease basis for a period of 30 years under a lease- cum-management agreement dated 29-11-2001. Pursuant to the lease, the appellants took over the management of the Hotel Ashok, Bangalore, including the ownership rights 5 relating to the leased premises and other assets and liabilities of the Hotel Ashok. The writ petitioners became regular employees of the appellants. Their salary was being paid by the appellants.
3. Subsequently, writ petitioner - P Muthu Pandy was transferred by order dated 10-6-2003 and similarly writ petitioner - R Manjunath was transferred by order dated 9- 1-2004 from Bangalore unit to other units of the appellants. Challenging the said transfer orders, the writ petitioners filed WP No 28700 of 2003 and 5791 of 2004 respectively. The prayer in the writ petition filed by Muthu Pandy is to quash the transfer order dated 10-6-2003 and permit him to continue to work at Hotel Ashok in Bangalore and to direct the third respondent therein to provide employment by paying all salaries. The third respondent in the writ petition is the appellant in WA No 4226 of 2009 i.e. Bharat Hotels Ltd. Similarly, writ petitioner Manjunath filed the petition to quash the order of 6 transfer and also to direct ITDC to consider his application for voluntary retirement.
4. Both writ petitions were opposed by the appellants herein, on the ground that writ petitions filed by the petitioners were not maintainable, because Bharat Hotels Ltd is a private company and no writ petition lies against it. It was also contended that from the date of transferring of business concern run by ITDC to Bharat Hotels Ltd, the writ petitioners have become employees of Bharat Hotels Ltd, which is a private company, and they being employees of Bharat Hotels Ltd, are bound to work wherever they are transferred and posted by the company and the service conditions of the writ petitioners have not been affected in any manner.
5. Writ petitioner Manjunath submitted an application to ITDC seeking for voluntary retirement. According to him, ITDC did not consider his application. According to ITDC, the petitioner Manjunath has no right to submit 7 such an application, because, Manjunath was no more an employee of ITDC.
6. A learned Single Judge having considered the arguments advanced by both parties, allowed the writ petitions, quashed the orders of transfer and directing the respondents therein to pay 40% of the salary from the date of petitions till the date of order. A further direction was issued to the ITDC to consider the application for voluntary retirement submitted by petitioner Manjunath. The respondents in the writ petitions were also directed to continue the petitioners' services on the same terms and conditions. The present appeals are filed, challenging the common order passed by the learned Single Judge.
7. We have heard the learned counsel for the parties.
8. According to learned counsel for the appellants, the prayer granted by the learned Single Judge has become 8 infructuous due to efflux of time. According to him, both writ petitioners have retired from service on attaining the age of superannuation. According to him, the learned Single Judge did not consider the maintainability of the writ petitions, since the writ petitioners have become employees of the appellant M/s Bharat Hotels Ltd. According to them, the question of considering the application filed by writ petitioner Manjunath for voluntary retirement did not arise, because, on the date of submission of the application, he was no more an employee of ITDC, since by then, he had become a permanent employee of Bharat Hotels Ltd. He further submits that even on account of attaining the age of superannuation, the question of considering his application for voluntary retirement does not arise at all.
9. Per contra, learned counsel for the writ petitioners submits that though the writ petitioners were directed to work under Bharat Hotels Ltd, they have retained their 9 original appointment with ITDC and they continued as employees of ITDC, since ITDC has handed over the hotel as a going concern on lease for a period of 30 years and that the petitioner Mannunath is entitled to make an application seeking voluntary retirement. He further submits that the consent of the writ petitioners to become the employees of Bharat Hotels Ltd has not been obtained either by the ITDC or by Bharat Hotels Ltd. In the circumstances, he requests the court to dismiss these appeals by following the judgment of the Supreme Court in BCPP MAZDOOR SANGH vs NTPC [AIR 2008 SC 338].
10. Having heard the learned counsel for the parties, the following points arise for our consideration in these appeals:
i) Whether the learned Single Judge has committed an error in allowing the writ petitions by directing the respondents to restore the services of the writ petitioner by paying 40% of the arrears of salary?
ii) Whether the learned Single Judge is justified in directing the ITDC to consider 10 the application of writ petitioner Manjunath for voluntary retirement?
11. It is not in dispute that the writ petitioners were employees of ITDC and they were working at Hotel Ashok, Bangalore. It is also not in dispute that Hotel Ashok, which was run by ITDC, was transferred in its entirety to Bharat Hotels Ltd, by virtue of a disinvestment policy of the government, which policy had come into effect from 29-11- 2001. It is also not in dispute that the writ petitioners were transferred to other units of Bharat Hotels Ltd in terms of the impugned orders. It is also not in dispute that no such consent was obtained either by ITDC or Bharat Hotels Ltd, agreeing to take the writ petitioners as the employees of Bharat Hotels Ltd. However, the fact remains that both writ petitioners have worked under Bharat Hotels Ltd from the date of transfer of the going concern as such. It is also not in dispute that the writ petitioners have drawn their salaries from Bharat Hotels Ltd for more than three years. On account of their conduct in drawing the salary from 11 Bharat Hotels Ltd, agreeing to the terms and conditions of the said company, the writ petitioners have become employees of Bharat Hotels Ltd. It is not the case of writ petitioners that they are governed by the service conditions of ITDC even after the transfer of the hotel to Bharat Hotels Ltd. When the petitioners have drawn salary from Bharat Hotels Ltd for more than three years without raising their little finger that they have not given consent for transfer from ITDC to Bharat Hotels Ltd and when further they did not question that the salary cannot be paid by Bharat Hotels Ltd, it is too late in the day to contend in the year 2003 or 2004 that they cannot be considered as employees of Bharat Hotels Ltd. When Hotel Ashok has been transferred by virtue of policy of disinvestment, the writ petitioners have not questioned the same. Hence, the question of contending that they are still employees of ITDC cannot be accepted. The learned Single Judge did not consider this crucial aspect while deciding the writ petitions.
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12. In the meanwhile, by attaining the age of superannuation, both writ petitioners have retired from service. As a matter of fact, when they sought an interim order in the writ petitions, a positive direction was issued to the writ petitioner Muthu Pandy to report for duty with Bharat Hotels Ltd by giving a date. Pursuant to said direction of this court to report for duty at the place of transfer and thereafter he has tendered his resignation, his resignation has been accepted by Bharat Hotels Ltd and Bharat Hotels Ltd has also settled his dues. When once the dues of the employee have been settled by Bharat Hotels Ltd, the question of issuing a direction by the learned Single Judge to continue him in service and pay salary at the rate of 40% did not arise at all. Therefore, only on this subsequent development, the case of Muthu Pandy has to be rejected.
13. In so far as the case of writ petitioner Manjunath is concerned, admittedly he has also worked for more than 13 four years under the appellant Bharat Hotels Ltd. When once he has become an employee of Bharat Hotels Ltd by operation of time, the question of he insisting ITDC to consider his application for voluntary retirement does not arise at all. ITDC has categorically stated that Manjunath was no more an employee of ITDC and therefore the question of consideration of his application for voluntary retirement does not arise. When they contend that he is not an employee of ITDC, unless and until the learned Single Judge gives a finding that Manjunath is still continued to be an employee of ITDC, the question of considering the application for voluntary retirement does not arise at all. Even otherwise, on account of Manjunath attaining the age of superannuation, the question of considering his application for voluntary retirement will not arise at all. Viewed from any angle, we are of the view that the learned Single Judge did not consider the case of parties properly and has erroneously allowed the writ petitions.
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14. As far as the judgment relied upon by the learned counsel for the writ petitioners is concerned, in the said case, there was a tripartite agreement. There, the workers were employed by NTPC before disinvestment took place and NTPC transferred the concern with entire assets and liabilities to BALCO. But, in the instant case, both writ petitioners have accepted Bharat Hotels Ltd as their employer for more than four years. Even before drawing the first month's salary, if they really intended to contend that still they are employees of ITDC, they should have protested and they should not have drawn the salary from Bharat Hotels Ltd. As a matter of fact, all the employees of ITDC workers' union and others had questioned the transfer of Hotel Ashok situated in different parts of India on the ground that on account of sale of hotels or transfer of hotels, their services conditions would affect. The Supreme Court in Transfer Case (Civil) No 76 of 2002, has dismissed the petition. Therefore, we are of the view that 15 when transfer of such employees of ITDC was questioned by the workers' union before the Supreme Court and when the Supreme Court has rejected the contentions of workers' union, they cannot be permitted to re-agitate the same.
15. In the circumstances, these appeals are allowed and the order passed by the learned Single Judge in WP No 28700 of 2003 and WP No 5791 of 2004 dated 14-10-2009 is hereby set aside. Consequently, the writ petitions filed by the writ petitioners are dismissed.
Sd/-
JUDGE Sd/-
JUDGE *pjk