Civil Appeal No. 2147 of 2010 and Civil Appeal No. 425 of 2012. Case: 1. Jatya Pal Singh and Ors., 2. Vijay Thakur Vs 1. Union of India (UOI) and Ors., [Alongwith Civil Appeal No. 3933 of 2013 (Arising out of S.L.P. (C) No. 4619 of 2011), Writ Petition (C) No. 689 of 2007 and Civil Appeal No. 5740 of 2012], 2. VSNL and Anr.. Supreme Court (India)
| Case Number | Civil Appeal No. 2147 of 2010 and Civil Appeal No. 425 of 2012 |
| Counsel | For Appellant: Triloki Nath Razdan, P.P.N. Razdan, Krishan Singh Chauhan, Ajit Kumar Ekka, Chand Kiran, Kartar Singh, D.N. Ray, Amit Mahajan, Navin Chawla and Abhishek Kumar Jha, Advs. and For Respondents: C.U. Singh, Sr. Adv., Mahesh Agarwal, Rishi Agrawala, E.C. Agrawala, Ankur Saigal, Ankur, R.K. Rathore, Baldev Ateya, Advs. for D.S. Mahra, ... |
| Judges | Surinder Singh Nijjar and Anil R. Dave, JJ. |
| Issue | Indian Telegraph Act, 1885 - Section 4; Telecom Regulatory Authority of India (TRAI) Act, 1997; Indian Telegraph Act, 1948 - Section 4; Human Rights Act, 1998 - Section 6(3); Indian Companies Act, 1956; Conduct Discipline and Appeal Rules, 1992; VSNL Recruitment and Promotion Rules, 1983; TATA Conduct Rules; SEBI (Substantial Acquisition of ... |
| Citation | 2013 (4) ABR 102, 2013 (XI) AD (SC) 24, 2013 (5) AWC 4378 SC, 2013 (138) FLR 987, 2013 (3) JLJR 425, JT 2013 (6) SC 376, 2013 (2) LLN 545 (SC), 2013 (6) SCALE 125, 2013 (6) SCC 452, 2013 (2) SCC (LS) 617, 2013 (3) SCT 154 (SC), 2013 (2) UPLBEC 1509, 2013 (4) WBLR (SC) 775 |
| Judgement Date | April 17, 2013 |
| Court | Supreme Court (India) |
Judgment:
Surinder Singh Nijjar, J.
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Leave granted in SLP (c) No. 4619 of 2011.
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This judgment will dispose of a group of appeals, details of which are given hereunder, as they raise only one question of law:
Proceedings before the Bombay High Court:
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Writ Petition No. 2139 of 2007 titled as Mahant Pal Singh v. Union of India dismissed in limine by the Division Bench on 7th September, 2009. Civil Appeal No. 3933 of 2013 @ Special Leave Petition (C) No. 4619 of 2011 titled as M.P. Singh v. Union of India and Ors. has been filed challenging the aforesaid order of the Division Bench. Writ Petition No. 2652 of 2007 titled as Jatya Pal Singh and Ors. v. Union of India and Ors. was dismissed in limine by the Division Bench on 8th September, 2009 in view of the order dated 7th September, 2009 passed in Writ Petition No. 2139 of 2007. The aforesaid order has been impugned by the Appellants (writ Petitioners in the High Court) Jatya Pal Singh and Ors. v. Union of India and Ors. in C.A. No. 2147 of 2010.
Proceedings in the Delhi High Court:
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Ten writ petitions were filed by the former employees of the Videsh Sanchar Nigam Limited (VSNL). The common question of law raised in all the appeals relates to the very maintainability of the writ petitions. VSNL had raised a preliminary objection that a writ petition would not be maintainable against it as it is neither a State within the meaning of Article 12 of the Constitution of India nor is it performing any public function. The learned Single Judge accepted the aforesaid preliminary objection and dismissed the writ petitions by judgment and order dated 29th August, 2011. Letters Patent Appeal No. 924 of 2011 challenging the aforesaid order was dismissed by the Division Bench on 14th November, 2011. LPA Nos. 930 of 2011 and 931 of 2011 were dismissed by the common order dated 15th November, 2011.
4A. Only two of the original writ Appellants have approached this Court in the civil appeals against the judgment of the learned Single Judge and the Division Bench of the Delhi High Court by way of civil appeals. These are Ram Prakash v. Union of India and Ors. in C.A. No. 5740 of 2012 and Vijay Thakur v. V.S.N.L. and Anr. in C.A. No. 425 of 2012.
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For the purpose of this order, we shall make a reference to the facts as pleaded in C.A. No. 2147 of 2010. All the Appellants in writ petitions had been working in the Ministry of Communication, in particular, Department of Overseas Communication Service (OCS) from 1st March, 1971 onwards. Their dates of appointment on various posts are as under:
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Appellant Nos. 1 and 2 were appointed as Assistant Engineer on 16th May 1983 and 1st September, 1983, respectively. Appellant Nos. 3 and 4 were appointed as Junior Technical Assistant on 1st March, 1971 and 13th January, 1976 and Appellants 5 and 6 were appointed on 8th January, 1980. During their continuous service with Respondent No. 1, they had earned promotions at due time on merit. They have a clean record of service. Till 31st March, 1986, they were holding responsible posts in the OCS.
Background of VSNL:
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Origin of Overseas Communication Service (in short OCS) -
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On 1st of January, 1947 'Indian Radio and Telecommunication company Ltd.' a Private Company operating India's external telecommunication service was taken over by the Govt. along with its employees on the terms and conditions as they had with the private company.
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The Govt. created a department in ministry of telecommunication known as Overseas Communication Service (OCS) that dealt communication of India subjects with the rest of the world.
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The OCS department of Ministry of telecommunication continued till 31st of March, 1986.
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Conversion of OCS into VSNL -
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Ministry of Communication took a decision to convert its OCS Department into a Public Sector Corporation (PSC). A notification to this effect was issued on 19th March, 1986 and the Corporation was named as VSNL. Accordingly, w.e.f. 1st April, 1986, all international telecommunication services of the country handled by the Govt. stood transferred to VSNL. All the employees were deemed to have been transferred to the VSNL on the existing terms and conditions till their case for absorption or otherwise are decided upon by the VSNL in consultation with the cadre controlling authority and other concerned Govt. Departments. They were to be treated on deputation on Foreign Service to VSNL without deputation allowance. These employees also were to be treated as though on the strength of OCS as on 31st March, 1986 till their cases were finalized by the VSNL. Those who do not opt for absorption will be treated as on deputation on foreign service with the Corporation for a period of 2 years without deputation allowance. The Corporation (VSNL) would finalise the terms and conditions for employment in the Corporation within a period of 12 months or on any specified date as may be agreed upon by the Government. It was provided that the employees will be asked to exercise their option for being absorbed in the company or otherwise within the stipulated period. The date of induction of the employees in the Corporation will be the date from which they have exercised the option to be absorbed in the Company with the approval of the competent authority. The notification also provided that pensionary and other retirement benefits to the employees on their absorption in the Corporation will be determined in accordance with the Department of Pensions and Pensioners Welfare O.M. No. 4(8)-85-P & PW dated 13th January, 1986 and as amended from time to time.
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Thereafter on 11th December, 1989, VSNL issued STAFF NOTICE on the subject 'Absorption of OCS Employees in VSNL'. In this notice, it is mentioned that date of absorption of OCS employees in the VSNL has been approved by the Ministry of Communication on 1st January, 1990. It is further mentioned that accordingly from that date, the OCS employees transferred to VSNL on deputation basis without deputation allowance on foreign service terms will cease to be government servants. The aforesaid notice of absorption including the terms and conditions of absorption was also issued individually to each employee. On 5th July, 1989, the Government had issued Office Memorandum No. 4/18/87- P&PW (D) on the subject 'Settlement of Pensionary terms etc. in respect of Government employees transferred en masse to Central Public Sector Undertakings/Central Autonomous Bodies'. Under this, the employees were given the option to retain the pensionary benefits available to them under the Government rules or be governed by the rules of the Public Sector Undertaking/Autonomous Bodies. The Government also assured that the employees of the OCS will not be removed by the VSNL unless their case was placed before the competent authority in the Government. Finally, the VSNL absorbed en masse the erstwhile employees of OCS with effect from 1st January, 1990. The solemn promise of not being removed was incorporated in the Conduct Discipline and Appeal Rules framed by the VSNL in the year 1992. It is pertinent to note here that all the Appellants had opted to join VSNL.
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Disinvestment
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Between 1992 and 2000, Government of India divested a portion of its share holding in VSNL by sale of equity to certain funds, banks and financial institutions controlled by the Government in 1992 and to the general public in 1999. Thereafter, the company was listed on Indian Stock Exchange. In 1997, the Government of India sold some of its equity holdings by issuing Global Depository Receipts (GDRs) following which VSNL was listed on the London Stock Exchange. On 15th August, 2000, VSNL became first Public Sector Undertaking of India to be listed on the New York Stock Exchange through conversion of underlying GDRs to American Depository Receipts (ADRs). However on 13th February, 2002, Government of India which till then held 52.97% of shares in VSNL, divested 25% shares in favour of Panatone Finvest Limited, (comprising of 4 companies of the Tata Group) and 1.85% in favour of its employees after following due process in accordance with its disinvestment policy. This brought the share holding of the Government of India to 26.12 %. Tata Group also made a public offer for acquiring a further 20% of the share capital of the VSNL, from the public in terms of SEBI (Substantial Acquisition of Share and Takeover) Regulations 1997. Consequently, the total holding of the Tata Group in VSNL increased to 44.99 % of the paid up share capital in 2002. Presently, Tata Group holdings in VSNL is about 50.11%.
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As per the share holding agreement and share purchase agreement, the Government of India mandated the Tata Group to ensure that none of the employees should be retrenched for a period of one year. Clause 5.13 of the aforesaid agreement was as under:
5.13 Employees.
(a) Notwithstanding anything to the contrary in this Agreement, the Strategic Partner shall not cause the Company to retrench any of the employees of the Company for a period of 1 (one) year from the closing other than any dismissal or termination of employees of the company from their employment in accordance with the applicable staff Regulations and standing orders of the Company or applicable law.
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It appears that the Tata Group by a letter dated 14th April, 2002 to ensure that the morale of the present employees of the VSNL is maintained at a high level and that they continue to deliver their best performance, decided that it shall cause VSNL not to retrench any of the employees of VSNL for a period of two years from 13th February, 2002.
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On 5th February, 2004, VSNL was granted a non exclusive licence by the Government of India pursuant to the disinvestment. Clause (1) of the non exclusive licence reads as under:
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In view of the fact that the LICENSEE is the INCUMBENT OPERATOR and in consideration of the payments including LICENCE FEE and due performance of all the terms...
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LPA No. 626/2013. Case: Anil Dutta Mishra Vs Gandhi Smarak Sangrahalaya Samiti & Ors.. High Court of Delhi (India)
...or of public character. 8. Recently the Supreme Court in the case reported as Jatya Pal Singh and Others v. Union of India and Others, 2013 (6) SCC 452 dealing with 10 writ petitions filed by the former employees of Videsh Sanchar Nigam Ltd. has held as 49. In our opinion, the functions per......
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LPA No. 626/2013. Case: Anil Dutta Mishra Vs Gandhi Smarak Sangrahalaya Samiti & Ors.. High Court of Delhi (India)
...or of public character. 8. Recently the Supreme Court in the case reported as Jatya Pal Singh and Others v. Union of India and Others, 2013 (6) SCC 452 dealing with 10 writ petitions filed by the former employees of Videsh Sanchar Nigam Ltd. has held as 49. In our opinion, the functions per......