IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :: 17.2.2010
Coram
THE HONOURABLE MR. JUSTICE P.JYOTHIMANI
W.P.No.6325 OF 2004
M/s. HTL Ltd., Retired Employees Welfare Association
Rep.by its Secretary
Mr.B. Velayudham
Reg.No.475/2002
(Regd. Office
No.5, Eswaran Colony
Servamangala Nagar
Nanganallur
Chennai-600 061)
No.9, Thiruvallur Street
West K.K.Nagar
Chennai-600 078. ..Petitioner
-Vs.-
1. HTL Limited
Rep.by its Managing Director
G.S.T.Road
Guindy
Chennai-600 032.
2. The Secretary
Ministry of Communication
New Delhi.
3. The Under Secretary
Department of Public Enterprises
Public Enterprises Bhavan
Block 14, CGO Complex
Lodhi Road
New Delhi-110 003. ..Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records on the file of the first respondent relating to the letter No.LC/B-56 dated 19.12.2003 and quash the same and consequently direct the first respondent to recalculate the ex-gratia compensation of the members of the petitioner as mentioned in the annexure and settle the claim said with difference in notice period wages with interest within three months.
For Petitioner : Mr.R.Thiagarajan, SC
for M/s.Aiyar and Dolia
`
For Respondents : Mr.Sanjay Mohan
for M/s.Ramasubramaniam Associates for R1
Ms.P.Kalpa Reddy for RR2 and 3
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O R D E R
Heard Mr.R.Thiagarajan, learned Senior Counsel for the petitioner; Mr.Sanjoy Mohan, learned counsel appearing for the first respondent and Ms.Kalpa Reddy, learned counsel appearing for respondents 2 and 3.
2. The issue involved in this case relates to the communication of the first respondentHTL Limited dated 19.12.2003, by which the first respondent rejected the claim of ex gratia payment under voluntary retirement scheme propounded by the first respondent in 1998-1999, on the ground that the company was under the impression that the Government of India would provide monetary assistance for the voluntary retirement scheme.
2. However, quoting the scheme dated 5.10.1988, it is contended by the learned Senior Counsel for the petitioners that the order is a total misnomer in the sense that in the scheme formulated by the first respondent-Company on 4.11.1998 and subsequent dates viz., 9.11.1998, 4.3.1999 and 24.12.1999, which are all the circulars, the first respondent has reiterated the right of the petitioners to have ex-gratia payment on option for voluntary retirement and it is the case of the petitioners that based on that scheme they have opted for voluntary retirement, the benefit of which is now denied.
3. In the counter affidavit filed by first respondent, in paragraph 6, it is stated that the first respondent, which was originally a Government of India Enterprise, viz., Public Sector Undertaking dealing in the business of telecommunication equipments’ has been subsequently dis-invested by the Government of India in respect of its share holdings in the first respondent company on 16.10.2001 to the extent of 74% and retained 26% of the share capital. Since the Government of India has sold 74% of its shares in the first respondent company to another private company viz., Himachal Futuristic Communications Ltd., “HFCL”, it ceases to be a Government of India undertaking from 16th October, 2001.
4. When the first respondent against whom the relief is claimed has ceased to be a Government of India undertaking, no writ can be issued under Article 226 of the Constitution of India, since the first respondent does not continue to be the authority under the control of the Government of India as per Article 12 of the Constitution of India. Article 12 reads as follows:-
“In this Part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”
5. In similar circumstances, in respect of the very same first respondent-company, a Division Bench of this Court in Writ Appeal No.416 of 1998 in the judgment dated 14.3.2007 relying upon the earlier judgment reported in 2003(3) LLN 1078 (P.Subban v. H.T.L.Ltd.,) particularly with reference to para 12 of the said judgment, which is as follows:
“12. Having regard to all these aspects, I think it is a fit case where a writ can no longer be issued in view of the changed circumstances, namely, privatisation of the respondent. Therefore, I follow the course adopted in the similar Writ Petition No. 14425 o f 1995 dated 19 July, 2002 (the entire order in this case is given in Para.8 supra) and observe that the writ petition is no longer maintainable. The writ petition is accordingly disposed of as not maintainable leaving it open to the petitioner to workout his remedy before the appropriate forum.”
has held that the writ petition as well as subsequent writ appeal filed by the Employees’ Union of H.D.L. as “not maintainable”. That was also the consistent stand taken by this court in another writ petition filed against H.D.L, in W.P.No.16588 of 1998 batch dated 19.7.2007, of which I am a party. The said decision was also followed in a batch of cases by K.Chandru, J in W.P.No.29186 of 2003 by order dated 22.11.2007, wherein liberty was given to the petitioners therein to workout their remedy in the manner known to law.
6. The submission of the learned Senior Counsel for the petitioners that at the time when the right has accrued, the first respondent was a public sector undertaking and the subsequent disinvestment by the Government of India will not take away the right of the petitioners, is not sustainable, for the reason that the second and third respondents- Government of India had never formulated any such scheme and therefore even assuming otherwise, as on date, no writ can be issued against respondents 2 and 3 on the said cause of action under Article 226 of the Constitution of India.
7. In such view of the matter, on the ground that the first respondent do not remain to be a Government of India undertaking, the writ petition against the Government Company is not maintainable and therefore the writ petition stands dismissed on the ground of maintainability, leaving it open to the petitioners to work out their remedy against the first respondent in the manner known to law. No costs.
Index:Yes/No 17.2.2010
Internet: Yes/No
Tr/
To
1. The Secretary
Ministry of Communication
New Delhi.
2. The Under Secretary
Department of Public Enterprises
Public Enterprises Bhavan
Block 14, CGO Complex
Lodhi Road
New Delhi-110 003.
P. JYOTHIMANI, J.
Tr
W.P.No.6325 of 2004
17.2.2010