Calcutta High Court (Appellete Side)
Bridge & Roof Workers' Union & Ors vs Union Of India & Ors on 1 December, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
December 01,
2017
R.C.
W.P. 28870 (W) OF 2017
Bridge & Roof Workers' Union & Ors.
Vs.
Union of India & Ors.
=-=-=-=-=-
Mr.Bikash Ranjan Bhattacharya,
Sr. Advocate
Mr. Soumya Majumdar
Mr.Mainak Ganguly,
...for Petitioner
Mr. Koushik Chander
Mr. Partha Ghosh
Mr. Salil Kumar Maity,
...for Union of India
A decision taken by the Central Government to disinvestment of
100% shares of the Bridge & Roof Company Limited is under challenge in
the present writ petition at the behest of the Worker's Union of the first
respondent.
The learned senior Advocate appearing for the petitioner submits that, the company is one of the profit making Public Sector Undertakings which is sought to be disinvested. The company is under the Ministry of Heavy Industries. The Ministry of Heavy Industries, at least by two different Hon'ble Ministries expressed their views in writing to the effect that, disinvestment of the company is not in public interest. Such writings highlights the profitability and the nature of business that the company is engaged in. It also highlights the fact that, the disinvestment may not be in the interest of all concerned of the company. It suggests that the company can be merged with any other Public Sector Undertakings and names a legal entity which is a Public Sector Undertaking for such purpose. He further submits that, the Ministry of Disinvestment however has taken a different view. There is a conflict in the views between the 2 concerned Ministries. The Central Government, however, want to proceed with the disinvestment process. The decision to disinvestment of the 100% shares of the company is arbitrary. He refers to the various letters issued by the Ministry in this regard. He draws the attention of the Court to the process of disinvestment. He submits that, the preliminary information memorandum for inviting expression of interest of strategic disinvestment of the company as invited by the Ministry of Heavy Industries and Public Enterprises debars any Public Sector Undertaking from participating in such a disinvestment process. In this context, he refers to Clause 5.2 of such Expression of Interest Document. He contends that, till such time, the Court decides as to the legality and validity of the disinvestment process, the respondents should be restrained from taking a final decision on the memorandum inviting express of interest.
Learned Additional Solicitor General representing the respondents submits that, the Government has taken a policy decision not to carry on business in the Public Sector. Such a policy decision is not amenable to judicial review, unless the petitioner is in a position to establish that, such a decision is unconstitutional or is tainted or arbitrary. In the present facts, he submits that, the question of unconstitunality does not arise. Moreover, the question of arbitrariness also does not arise. The decision to disinvest 100% shares of the company was initially taken by the Ministry of Disinvestment on October 18, 2016. The views of the Ministry of Heavy Industries were taken into consideration in a Cabinet Meeting on October 27, 2017. Such Cabinet meeting approved of the disinvestment process. There was in fact a Ministerial Consultative Committee. Such decision was taken by the Core Group of Secretaries. It has taken a decision to go on with the disinvestment process as put forward by the Niti Aayog. Therefore, the question of arbitrariness does not arise. In support of his contentions that the Court should not intervene in a policy matters, he refers to 2015 (9) Supreme Court Cases 3 657 (Parisons Agrotech Private Limited and Anr.-Vs-Union of India and Ors.).
I have considered the rival contentions of the parties and the materials made available on record.
As noted above, the disinvestment process of the company is under challenge. There are issues raised in the writ petition which will require an opportunity to be granted to the respondents to file affidavits.
Let affidavit in opposition be filed within five weeks from date, reply, if any, be filed within a week thereafter.
The writ petition will be treated as ready for hearing immediately on completion of the time stipulated for filing affidavits.
Liberty to the parties to mention for early hearing.
The issue as to the nature and extent of interim order, if any, during the pendency of the writ petition requires consideration.
Again, as noted above, the disinvestment process of a Public Sector Undertaking is under challenge. On side of the spectrum of balance of convenience and inconvenience is the fact that, if the disinvestment process is allowed to continue and attain its finality, the same may have the effect of rendering the writ petition infructuous. The other end of the spectrum is the requirement of the petitioners to establish a strong prim facie case in their favour to obtain an interim order.
Prima facie, it appears that the Central Government has taken a policy decision to disinvest in respect of the company. Such a decision is in furtherance of the policy of the Central Government not to carry on business in the private sector. Such decision was taken after a consultative process where the Ministry of Heavy Industries was represented. Prima facie it appears that, the conflicting views of the different Ministries were looked at and considered the level of the Secretaries of the Ministries. It is after such a consultative process that a decision to taken. At this stage, therefore, it cannot be said that such a decision is tainted with arbitrariness warranting a writ Court to interfere 4 at the interim stage. Prima facie, it appears that, the petitioners as workers and employees of a company are seeking to choose their employers. They are not entitled to do so. Therefore, neither a prima facie case is made out for grant of any interim order nor is the balance of convenience and inconvenience in favour of the petitioners to grant the same. . Moreover, since prima facie the Court is not satisfied that the decision to disinvest is tainted with any arbitrariness, it would not be prudent to grant any interim order as prayed for.
Learned senior advocate appearing for the petitioner draws the attention of the Court that the claim of taking decision for disinvestment was taken after a elaborate consultative measure as aforesaid on behalf of the first respondent are incorrect and the same would appear from the letters of the Hon'ble Ministers dated February 07, 2017 at page 194 of the writ petition.
The letter dated February 7, 2017 in its opening paragraph refers to the decision of the Cabinet of the disinvestment process of the company and the communication thereof by the Department of Disinvestment and Public Assets Management by letter dated September 27, 2016. It suggests that, the disinvestment need not be undertaken as proposed. However, the letter refers to the Bibek Deb Roy Committee whish was constituted for review/monitoring the implementation of revival package for sick/loss-making Public Sector Undertakings. The company was not called to be present at such meeting. Apparently, it is noted that the Secretaries had taken the decision suo motu.
The view of the Hon'ble Minister as recorded in the letter dated February 7, 2017 is subsequent to, the decision of the Central Government to disinvest. The relevant Ministries were consulted at appropriate levels before the decision was taken. The Minister for Heavy Industry and Public Enterprises by another writing dated September 7, 2017 has refers to the Parliamentary Standing Committee Meeting held on July 4, 2017 to the effect that disinvestment of the company is not correct 5 and that it has recommended a review of strategic disinvestment of the company. However, it notes that there is an existing Cabinet approval for the merger of EPIL with similarly placed Central Public Sector Enterprises. It goes on to suggest that, the company may be merged with EPIL, if need be. It requests consideration of a proposal and to initiate a case for partial modification of the proposal for disinvestment. The contents of these two letters will demonstrate that there is a decision of the Central Government to disinvest. These two letters requests the appropriate authorities to revisit the decision. Nothing is placed on record to suggest that, the authorities who are required to decide on the process of disinvestment have revisited their decision on the basis of such requests. Therefore, at this stage, it would not be prudent to grant any interim relief to the petitioners as prayed for.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( DEBANGSU BASAK, J. ) 6 Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( DEBANGSU BASAK, J. ) 7 8