U.P.Electronics Corporation ... vs Shri P.C.Gautam & 3 Ors.
2017 Latest Caselaw 1915 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 

 
Case :- SERVICE BENCH No. - 3725 of 2017
 

 
Petitioner :- U.P. Electronics Corporation Limited through Managing Director and others
 
Respondent :- Shri P.C. Gautam and others
 
Counsel for Petitioner :- Sanjay Bhasin
 
Counsel for Respondent :- C.S.C, P.C. Gautam (In person), Sunil Kumar Bajpai
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ravindra Nath Mishra-II,J.

1. Heard Sri Sanjay Bhasin, learned counsel for petitioners, Sri P.C. Gautam, claimant-respondent-1 in person, learned Standing Counsel for respondent-3 and perused the record.

2. This writ petition under Article 226 of Constitution of India is directed against judgment and order dated 30.07.2015 passed by State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal") where allowing Claim Petition No. 980 of 2012, it has directed respondents therein to pay salary to claimant-respondent-1 for the period from September, 2001 to 30.04.2003 and May, 2003 to January, 2004 with 6% interest.

3. Petitioners and respondents-2 and 3 filed Review Application No. 122 of 2015 but same was rejected by Tribunal vide order dated 05.12.2016. Both these orders are under challenge in the present writ petition.

4. Claimant-respondent-1 filed aforesaid claim petition pleading that U.P. Electronics Corporation Ltd., Lucknow (hereinafter referred to as "UPECL") is a holding company and M/s UPTRON, 10, Ashok Marg, Lucknow (hereinafter referred to as "M/s UPTRON") is a subsidiary company of UPECL. UPECL is wholly owned by State of U.P. and is a State Government company registered and incorporated under the provisions of Companies Act, 1956 (hereinafter referred to as "Act, 1956"). Initially, there were four companies, namely, M/s UPTRON Capacitors Ltd., M/s UPTRON Digital System Ltd., M/s UPTRON Communication and Instruments Ltd. and M/s UPTRON Ltd. Aforesaid four companies were subsidiary companies of M/s UPECL which itself under 100% shareholding of State Government hence is a Government Company under the provisions of Act, 1956. Aforesaid four subsidiary companies sought to be amalgamated in a new company, namely, M/s UPTRON. Vide Notification dated 03.09.1987 published by Ministry of Industry, w.e.f. appointed date, i.e., 03.09.1987, M/s UPTRON came into existence as a result of amalgamation of four companies, named above.

5. Claimant-respondent-1 was appointed as Assistant Manager (Personnel) on 01.10.1985 in M/s UPTRON Communications and Instruments Ltd. and after amalgamation of said Company with M/s UPTRON became an employee of M/s UPTRON. He was promoted as Senior Assistant Manager in M/s UPTRON on 01.07.1989 and further as Deputy Manager (Personnel) w.e.f. 01.07.1992. Post of Deputy Manager (Personnel) was re-designated as Joint Manager (Personnel) w.e.f. 02.08.1993.

6. M/s UPTRON became sick for various reasons resulting in that it failed in payment of arrears of salary, etc., i.e., in discharge of its financial obligations. In order to find out a revival of M/s UPTRON, State Government took a decision to close various units of M/s UPTRON except "Computer Consultancy Division" and issued directions accordingly vide order dated 04.01.1999 communicated to Managing Director of M/s UPECL and M/s UPTRON.

7. Vide order dated 22.09.2001 issued by Divisional Incharge (Personnel) of M/s UPTRON, claimant-respondent-1 was transferred from CDE to CCD, Lucknow and was directed to report to General Manager, CCD, i.e., Computer Consultancy Division.

8. Vide order dated 08.04.2002, UPECL since one Anil Kumar, Managing Director was holding position of Managing Director in both companies at that time, he issued office order and besides others claimant-respondent-1 w.e.f. 01.04.2002 was attached UPECL for the purpose of payment of salary since all these persons were engaged in essential activities related to Corporate Accounts and Personnel Department.

9. Claimant-respondent-1 vide application dated 10.05.2002 sought voluntary retirement under Voluntary Retirement Scheme (hereinafter referred to as "VRS"). Said application was addressed and submitted to Managing Director, M/s UPTRON, Lucknow. Vide order dated 21.08.2002 passed by Shri Avanish Kumar Awasthi, Managing Director of M/s UPTRON, claimant-respondent-1 was directed to function as In-charge, Personnel Division of M/s UPTRON and report to Managing Director, M/s UPTRON. Thereafter, vide office order dated 28.06.2003, Shri Deepak Kumar, Managing Director of M/s UPTRON, ordered that claimant-respondent-1 and three others shall be paid salary from M/s UPECL w.e.f. 01.05.2003. Ultimately, VRS of claimant-respondent-1 was accepted by Shri Rakesh Bahadur, Managing Director, M/s UPTRON, vide order dated 30.12.2003 w.e.f. 30.11.2002. There was some delay in clearing dues of claimant-respondent-1 since M/s UPTRON came to be registered as sick company before Board of Industrial and Financial Reconstruction under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "Act, 1985").

10. Ultimately, raising grievance that, for some period, his salary was not paid, claimant-respondent-1 filed aforesaid claim petition seeking a mandamus for payment of salary of Rs. 6,81,287/- for the period from September, 2001 to 30.04.2003 and May, 2003 to January, 2004 with interest at the rate of 24%. In the aforesaid claim petition, claimant-respondent-1 impleaded following as respondents:-

"1. U.P. Electronics Corporation Ltd., 10, Ashok Marg, Lucknow through its Managing Director

2. The Managing Director/Chairman, U.P. Electronics Corporation Ltd., 10, Ashok Marg, Lucknow

3. The General Manager, U.P. Electronics Corporation Ltd., 10, Ashok Marg, Lucknow

4. The General Manager/Divisional Head, Computer Consultany Division, U.P. Electronics Corporation, 10, Ashok Marg, Lucknow

5. The Divisional Head (Accounts), U.P. Electronics Corporation Ltd., 10, Ashok Marg, Lucknow

6. The Divisional Head Personnel, U.P. Electronics Corporation Ltd., 10, Ashok Marg, Lucknow

7. UPTRON India Ltd., 10, Ashok Marg, Lucknow through its Managing Director

8. The State of Uttar Pradesh through its Principal Secretary, in the Department of IT and Electronics, Civil Secretariat, Babu Bhawan, Lucknow"

11. Petitioners-UPECL filed objection dated 12.12.2012 before Tribunal stating that claimant-respondent-1 was never an employee of UPECL, hence petitioners are not liable for payment of his salary. It was further pleaded that M/s UPTRON is a company registered under Act, 1956 and being an independent legal entity has its own independent status. Claimant-respondent-1, being an employee of M/s UPTRON, can stake his claim to his employer and not to petitioners who were not employers of claimant-respondent-1. With regard to transfer orders dated 08.05.2002 and 28.06.2003, petitioners specifically raised a plea that said orders were never implemented. Objections raised by petitioners in paragraphs 4, 5, 6, 7, 8 are reproduced as under:-

"4. That the services of the employees of UPTRON India Limited and U.P. Electronics Corporation Ltd. are transferable. However, the petitioner was never transferred in U.P. Electronics Corporation Ltd. nor worked with U.P. Electronics Corporation Ltd. he is not entitled for any salary/arrears etc. from U.P. Electronics Corporation Ltd.

5. That UPTRON India Ltd. is a company registered under the Companies Act, 1956 and having independent legal identity and their set of manpower is separately.

6. That in reference to the G.O. dated 04.01.1999 for transfer of assets and employees of Computer Consultancy Division of UPTRON India Ltd. to U.P. Electronics Corporation Ltd., it is to inform that the said Govt. Order was not implemented as no company can be closed partly thereafter the Government Order dated 26.11.2002 got complete closure of UPTRON India Limited was issued.

7. That in reference to the transfer letter dated 08.05.2002 and 28th June, 2003 it is to inform that these transfer orders were never implemented as the same were got issued by the petitioner at his level, being the Head of Personnel Department, UPTRON India Ltd., on transfer of then Managing Director, UPTRON India Ltd., U.P. Electronics Corporation Ltd. In reference to the said order, the petitioner has never submitted any joining report and nor worked in U.P. Electronics Corporation Ltd. hence he is not entitled for any salary from U.P. Electronics Corporation Ltd.

8. That due to continuous financial losses in UPTRON India Limited, the company became a sick unit and registered as a Sick Company before BIFR, New Delhi and now a days the matter is pending before AAIFR, New Delhi for consideration. Due to financial losses in Company, company could not pay salary to its employees and other dues of the company. To seeing the condition of company, Government of U.P. has permitted UPTRON India Limited to launch the Voluntary Retirement Scheme or reduce the manpower and Government has also issued a Government Order for the employees of UPTRON India Limited to depute in Government Department on Contract/Deputation and Body shopping basis." (emphasis added)

12. A supplementary affidavit sworn by Sri Madan Pal, Divisional In-charge (Legal) of UPECL on 23.05.2013 was also filed before Tribunal and paragraphs 4, 6, 7, 8, and 9 thereof are read as under:-

"4. That the petitioner was appointed as Assistant Manager (Personnel) vide letter dated 12.09.1985 issued by the Managing Director, M/s UPTRON India Limited. He joined the services of M/s UPTRON India Limited as Assistant Manager (Personnel). A photocopy of appointment letter is annexed herewith and marked as Annexure No. CA-1 to this affidavit. The petitioner was further promoted to the post of Deputy Manager (Personnel) from 01.07.1992 by the Managing Director, M/s UPTRON India Limited. The post of Deputy Manager (Personnel) was later re-designated as Joint Manager (Personnel). The petitioner had been working as Joint Manager (Personnel), with the UPTRON India Limited, till he was allowed to retire under Voluntary Retirement Scheme (VRS) with effect from 30.11.2002 vide letter dated 30.12.2003. A copy of the VRS letter dated 30.12.2003 issued by M/s UPTRON India Limited is being annexed herewith as Annexure No. CA-2 to this affidavit (Annexure No. 7 of claim petition).

6. That regarding the Annexure No. 3 of the Claim Petition (which is order dated 08.05.2002), it is respectfully submitted that the petitioner never submitted the alleged transfer order before the answering respondent. From a perusal of said order (Annexure No. 3 of claim petition), it is transpired that the said alleged office order was issued on 08.05.2002 under the signatures of Sri Anil Kumar, the then Managing Director, UPTRON India Limited and U.P. Electronics Corporation Limited, whereas, Sri Anil Kumar, Managing Director, UPTRON India Limited/U.P. Electronics Corporation Limited had already been transferred and allotted the charge of Managing Director, U.P. Desco on 04.05.2002 and in his place, the charge of Managing Director, U.P. Electronics Corporation Limited and UPTRON India Limited was allotted/taken over by Shri G.K. Batra vide Office Memorandum dated 04.05.2002, a copy of which is annexed herewith as Annexure No. CA-3. As such, on the date of issue of said office order dated 08.05.2002, Shri Anil Kumar was not holding the charge of Managing Director of UPTRON India Limited and U.P. Electronics Corporation Limited as he had already left the charge on 04.05.2002 and new Managing Director Shri G.K. Batra had taken over the charge of Managing Director of U.P. Electronics Corporation Limited and UPTRON India Limited on 04.05.2002. As such, it is evident that the said Annexure No. 3 of Claim Petition is forged, fabricated and manipulated by the petitioner, with a view to obtain undue advantage by the petitioner, being the Head of the Personnel Department at the relevant period, for which he is liable to be prosecuted under law.

(i) It is also relevant to point out here that the said Annexure No. 3 was never produced/submitted by the petitioner before the new MD, during his service tenure and before taking VRS from UPTRON India Limited. In fact the said Annexure No. 3 of the Claim Petition is not in existence. It is also pertinent to mention here that Sri Anil Kumar, the then MD was not competent to issue any transfer order/attachment order on 08.05.2002 in respect of the employees of UPTRON India Limited and U.P. Electronics Corporation Limited. It is also relevant to submit here that petitioner sought information from the answering respondent under the RTI Act vide his letter dated 13.04.2011 (Annexure No. 18 of the claim petition) and in response, the petitioner was accordingly informed vide letter dated 11.05.2011 (para no. 1 of Annexure No. 19 of the claim petition refers). As such, it is crystal clear that the said transfer order dated 08.05.2002 was manipulated by the petitioner hence the same was never produced nor implemented in respect of the petitioner as well as other employees named in the said order dated 08.05.2002.

7. That regarding Annexure No. 6 of the claim petition, which is transfer/attachment order dated 28.06.2003, issued by Sri Deepak Kumar, the then Managing Director, UPTRON India Limited in respect of 04 employees of UPTRON India Limited, it is respectfully submitted that the said alleged transfer order was never submitted by the petitioner nor by the other 03 employees named in the alleged transfer order. It is further submitted that the petitioner was never relieved from UPTRON India Limited and as such he did not join at U.P. Electronics Corporation Ltd. nor worked in U.P. Electronics Corporation Ltd.

(i) It is also clarified that the alleged transfer order was not implemented in the case of any of the employees named in the said order including the petitioner, as they were not relieved from UPTRON India Limited. Moreover, the said alleged transfer order was issued by M/s UPTRON India Limited and it was not binding on U.P. Electronics Corporation Limited. In view of the above, it is clear that the petitioner managed the said alleged transfer order to get undue advantage at this stage, although he did not join nor worked in U.P. Electronics Corporation Limited during the relevant period (September, 2001 to 30.04.2003 and May, 2003 to January, 2004).

(ii) It is also necessary to mention here that vide letter dated 02.06.2011 (refer para-8 of Annexure No. 20 of claim petition), petitioner sought information, in respect of non-compliance of aforesaid transfer/attachment order dated 28.06.2003 issued by UPTRON India Limited, under the RTI Act, from the answering respondents. In reply to his aforesaid query/letter, petitioner was informed vide letter dated 28.06.2011 (para-8 of Annexure no. 21 of claim petition refers) that the aforesaid order dated 28.06.2003 was never received in U.P. Electronics Corporation Limited nor the petitioner reported for duty in compliance of said order hence the said order was never affected in U.P. Electronics Corporation Limited.

8. That it is also surprising that the petitioner had been relieved under Voluntary Retirement Scheme with effect from 30.11.2002, on the basis of his VRS application, which was submitted by him before UPTRON India Limited and demanding salary from the answering respondent for the period upto January, 2004.

(i) it is necessary to clarify here that UPTRON India Limited had demanded the funds from State Govt. for payment of VRS benefits as well as pending salary of UPTRON India Limited employees, however, the State Government had provided funds for VRS benefits only and no funds were provided for payment of pending/balance salary of UPTRON India Limited employees. It is also necessary to clarify here that State Government issued GO for sanction of the funds for payment of VRS benefits to the employees of UPTRON India Limited and permitted U.P. Electronics Corporation Limited to withdraw the funds, for payment of VRS benefits of the employees of UPTRON India Limited. Accordingly, based on the written directions from UPTRON India Limited in respect of payment of VRS benefits of UPTRON employees including the petitioner, funds were being released through cheques, which were further handed over to the VRS beneficiaries by UPTRON India Limited alongwith the VRS sanction letter, as has been done in the case of petitioner, who was handed over the VRS benefits amounting to Rs. 6,95,684/- through cheque alongwith VRS letter issued by UPTRON India Limited.

(ii) That since the Government had not provided the funds for payment of pending salary of the employees of UPTRON India Limited, including the petitioner hence it was clearly mentioned in the VRS Scheme by UPTRON India Limited that payment of balance salary to the beneficiaries of Voluntary Retirement Scheme, will be provided on receipt of funds from the State Government under the salary head, para (3) of Circular refers. A copy of the VRS Scheme dated 30.10.2001 is annexed herewith as Annexurer No. CA-4 to this affidavit (Annexure No. 4A of claim petition). Accepting the aforesaid condition of VRS Scheme, petitioner had submitted his VRS application dated 10.05.2002, vide which the petitioner has agreed as under:-

"I agree to take my pending dues towards salary on receipt of funds from the Government on this Account. I also declare that in case any of the aforesaid statements are untrue the VRS Compensation amount paid will be recoverable from me without any prejudice to any other steps that may be taken against me."

A copy of VRS application of the petitioner dated 10.05.2002 is annexed herewith as Annexure No. CA-5 to this affidavit (Annexure No. 4 of claim petition).

(iii) It is further submitted that the State Government has so far not provided the funds for the payment of balance salary of the employees of UPTRON India Limited, in terms of VRS Scheme, and therefore, the petitioner as well as other VRS employees of UPTRON India Limited could not get their pending salary from UPTRON India Limited.

(iv) In the present case, the petitioner has filed claim petition for pending salary, demanding the same from U.P. Electronics Corporation Limited (not from M/s UPTRON India Limited, his employer company) against the terms and condition of VRS Scheme and therefore, the VRS sanctioned in respect of the petitioner by their employer company M/s UPTRON India Limited is liable to be cancelled and payment of VRS benefits amounting to Rs. 6,95,684/- is liable to be recovered from the petitioner, in view of the statement/undertaking given by the petitioner in his VRS application dated 10.05.2002 (Annexure No. CA-5 of this affidavit and Annexure No. 4 of the claim petition). As such, in view of the terms of VRS Scheme, duly accepted by the petitioner vide his VRS application dated 10.05.2002, the sanction of VRS is deemed to have been cancelled and the amount of Rs. 6,95,684/- paid to the petitioner by UPTRON India Limited towards VRS benefits be recovered from the petitioner by the UPTRON India Limited.

9. That the petitioner filed Writ Petition No. 2038 (SB) of 2011 (P.C. Gautam Vs. U.P. Electronics Corporation Limited and others) before the Hon'ble High Court, Lucknow Bench, Lucknow for payment of his salary, notice of which, was served upon the Counsel of U.P. Electronics Corporation Limited. The said Writ Petition was heard on 21.12.2011 and after arguing for some time, learned counsel for the petitioner prayed for and was permitted to withdraw the Writ Petition with liberty to file a fresh one with impleadment of necessary parties. It is necessary to mention here that in the said writ petition, M/s UPTRON India Limited was not arrayed as opposite party, which was necessary party, and therefore, the writ petition was dismissed. It is evident from the records that the petitioner was retired employee of M/s UPTRON India Limited, which was necessary party hence M/s U.P. Electronics Corporation Limited was not the necessary party. A copy of order and judgment dated 21.12.2011 passed by the Hon'ble High Court in Writ Petition No. 2083 (SB) of 2011, is annexed herewith as Annexure No. CA-6 to this affidavit (Annexure No. 22 of claim petition). As such, on this ground alone, the claim petition is liable to be dismissed, in so far it relates to U.P. Electronics Corporation Limited.

(i) That it is further submitted that the petitioner has filed another Writ Petition No. 125 (SB) of 2012 (P.C. Gautam Vs. U.P. Electronics Corporation Ltd. and others) for the same relief i.e. payment of pending salary. The said writ petition was heard by the Hon'ble High Court and dismissed vide its order and judgment dated 07.02.2012 on the ground of alternate remedy. While dismissing the said writ petition, the Hon'ble High Court was pleased to observe the undisputed facts that the petitioner is an employee of UPTRON India Limited and opted for his retirement under the Voluntary Retirement Scheme. The application moved by the petitioner for retirement under Voluntary Retirement Scheme was accepted and the petitioner was allowed to retire under the said Scheme. The entire dues which were payable to him under the said scheme have been paid. It was further observed that while accepting the application for retirement under the said scheme, the dues which had not been paid earlier to the petitioner were to be paid subject to release of the funds from the State Government, on these terms and conditions, the retirement of the petitioner was accepted. It was also observed that the petitioner preferred a Writ Petition No. 2083 (SB) of 2011, in the Hon'ble Court, wherein a preliminary objection was raised by learned counsel for the opposite parties that UPTRON India Limited was not impleaded as opposite party in the Writ Petition, which is a necessary party. The copy of the said judgment and order dated 07.02.2012 is annexed herewith as Annexure No. CA-7 to this affidavit (Annexure No. 23 of claim petition).

(ii) That, subsequently, the petitioner moved a Review Petition No. 91 of 2012 (P.C. Gautam Vs. U.P. Electronics Corporation Limited and others) before the Hon'ble High Court, Lucknow, on the grounds that according to proviso to Section 4(1) of the U.P. Services Tribunal Act, 1976, no reference shall, subject to the terms of any contract be made in respect of a claim arising out of the transfer of a public servant. It was further submitted that the petitioner's claim for payment of arrears of salary arises out of his transfer from one division of UPTRON India Limited to CCD, Lucknow and from CCD of Uptron India Limited to U.P. Electronics Corporation Limited. A ground was also taken by the petitioner that the petitioner cannot be relegated to alternate remedy of filing the claim petition before the Tribunal. The said review petition was dismissed by the Hon'ble High Court, Lucknow with the observation that there is a bar on transfer matters, is not sustainable. A copy of said order and judgment dated 11.05.2011 is being annexed herewith as Annexure No. CA-8 to this affidavit (Annexure No. 24 of claim petition).

(iii) That at this stage, it is necessary to clarify that CCD (Computer Consultancy Division) was a Division of Uptron India Limited and did not merge in U.P. Electronics Corporation Ltd. as was mentioned in Govt. letter dated 04.01.1999 (Annexure No. 1A of claim petition). Since there was no provision of partial closure of a company, hence vide G.O. dated 26.11.2002 (Annexure No. CA-9 to this affidavit), State Government was pleased to decide that recommendations for complete closure of Uptron India Limited be submitted to BIFR, New Delhi, accordingly, BIFR has passed winding up order of Uptron India Limited on 31.08.2010, which has been challenged by Uptron India Limited before AAIFAR, New Delhi by means of Appeal No. 35 of 2011. It is further submitted that petitioner was never transferred from Uptron India Limited to U.P. Electronics Corporation Limited nor worked in U.P. Electronics Corporation Limited, as has been stated in detail in the preceding paras.

(iv) It is surprising to note here that even after seeking permission from the Hon'ble High Court, Lucknow in Writ Petition No. 2038 of 2011 for impleading the Uptron India Limited as a necessary opposite party and petitioner withdrawn the said Writ Petition on this ground alone but in the present Claim Petition, the petitioner is not seeking any relief from M/s Uptron India Limited (opposite party no. 7), which is necessary party being the employer company of the petitioner. The filing of the claim petition against opposite parties no. 1, 2, 3 and 6 is against the letter and spirit of the judgment dated 21.12.2011 passed in Writ Petition No. 2083 of 2011 and is contemtuous, for which, this Hon'ble Tribunal may take suo-moto cognizance to initiate contempt proceedings against the petitioner.

(v) It is further submitted that Uptron India Limited and U.P. Electronics Corporation Limited are separate companies registered under the Companies Act and independent legal entity. Both the companies maintain their balance sheets separately. Liability of one company cannot be fastened on other company/companies. Petitioner was appointed by Uptron India Ltd. and retired from Uptron India Limited and he never worked in U.P. Electronics Corporation Limited hence the petitioner is not entitled for any relief from U.P. Electronics Corporation Limited, the answering respondent." (emphasis added)

13. Our attention is also drawn to Page-176 of paper book which is a photocopy of office order dated 08.05.2002 which is said to have been issued by Sri Anil Kumar, Managing Director wherein an endorsement has been made by another Officer stating that Managing Director was already changed and new Managing Director took charge on 06.05.2002, hence how an outgoing Managing Director can issue such office order. Endorsement dated 10.05.2002 of Sri G.K. Batra, Managing Director reads as under:-

"a) How can this be done with retrospective effect.

b) I have assumed charge as per GO on 6th May.

Hence this be kept in abeyance.

S/d 10.5.02

G.K. Batra

Managing Director"

14. A detailed counter affidavit was also filed by petitioners before Tribunal which was sworn by Sri Madan Pal, Divisional In-charge, Legal of M/s UPECL and therein also pleadings in para 4, reads as under:-

"4. That regarding the Annexure No. 3 of the Claim Petition (which is order dated 08.05.2002), it is respectfully submitted that the petitioner never submitted the alleged transfer order before the answering respondent. From a perusal of said order (Annexure No. 3 of claim petition), it is transpired that the said alleged office order was issued on 08.05.2002 under the signatures of Sri Anil Kumar, the then Managing Director, Uptron India Limited and U.P. Electronics Corporation Limited, whereas, Sri Anil Kumar, Managing Director, Uptron India Limited/U.P. Electronics Corporation Limited had already been transferred and allotted the charge of Managing Director, U.P. Desco on 04.05.2002 and in his place, the charge of Managing Director, U.P. Electronics Corporation Limited and Uptron India Limited was allotted/taken over by Shri G.K. Batra vide Office Memorandum dated 04.05.2002. As such, on the date of issue of said office order dated 08.05.2002, Shri Anil Kumar was not holding the charge of Managing Director of Uptron India Limited and U.P. Electronics Corporation Limited as he had already left the charge on 04.05.2002 and new Managing Director Shri G.K. Batra had taken over the charge of Managing Director of U.P. Electronics Corporation Limited and Uptron India Limited on 06.05.2002 (Forenoon). As such, it is evident that the said Annexure No. 3 of Claim Petition is forged, fabricated and manipulated by the petitioner, with a view to obtain undue advantage by the petitioner, being the Head of the Personnel Department at the relevant period, for which he is liable to be prosecuted under law." (emphasis added)

15. Averments of reply contained in paragraphs 4.4 to 4.10 are contained in paragraphs 9 to 12 of counter affidavit and read as under:-

"9. The contents of para 4.4 of Claim Petition are not admitted hence denied. It is submitted that petitioner never worked with the answering respondents. No salary was paid to the petitioner by M/s U.P. Electronics Corporation Limited. During the period in question, petitioner worked in Uptron India Limited and therefore he should raise his claim before Uptron India Limited.

10. That the contents of para 4.5 of Claim Petition, are not admitted in the manner stated and, as such, denied. It is desirable to state that the Government letter dated 04.01.1999 for transfer of assets and employees of Computer Consultancy Division of Uptron India Limited to UPLC, was not implemented as no company can be closed partly/winding up under SICA Act, there is no provision of partially winding up of company. However, thereafter, vide Government Order dated 26.11.2002, a decision was taken by Government order to complete closure of Uptron India Limited. Accordingly, BIFR has passed final order for recommending winding up of Uptron India Limited vide judgment dated 31.08.2010. It is wrong to say that in compliance of Government letter dated 04.01.1999, the services of the employees of CCD of Uptron India Limited were transferred. It is further submitted that CCD division of Uptron India Limited was not merged in M/s U.P. Electronics Corporation Limited. The employees, whose names are mentioned by the petitioner in para under reply, were transferred in the year 2005 to 2009 under the Service Rules, in the exigency of work. Transfer of these employees have no concern with the claim of petitioner.

11. That the contents of para 4.6, 4.7, 4.8 and 4.9 of the petition are denied. It is submitted that by the present claim petition, petitioner has sought direction from the Hon'ble Tribunal for the payment of his salary for the period from September, 2001 to 30 April 2003 and for the period of May 2003 to January 2004 from the answering respondent (M/s UP Electronics Corporation Limited) on the ground of Annexure No. 3 and 6 of the claim petition, which relates to the alleged transfer/attachment of the petitioner and which are annexed by the petitioner in support of his alleged transfer from M/s Uptron India Limited to M/s UP Electronics Corporation Limited. The entire facts related to the alleged transfer of petitioner are stated in preceding para 2(1) to (20). However for the sake of convenience, the following facts are reiterated as under:-

(1) Regarding the Annexure No. 3 of the claim petition (which is order dated 08.05.2002), it is respectfully submitted that the petitioner never submitted the alleged transfer order before the answering respondent. From a perusal of said order (Annexure No. 3 of claim petition), it is transpired that the said alleged office order was issued on 08.05.2002 under the signatures of Sri Anil Kumar, the then Managing Director, Uptron India Limited and U.P. Electronics Corporation Limited, whereas, Sri Anil Kumar, Managing Director, Uptron India Limited and UP Electronics Corporation Limited had already been transferred and allotted the charge of Managing Director, U.P. Desco on 04.05.2002 and in his place, the charge of Managing Director of U.P. Electronics Corporation Limited and Uptron India Limited was allotted/taken over by Sri G.K. Batra on 06 May, 2002, copies of aforesaid order dated 04.05.2002 and certificate of taking over the charge by Sri G.K. Batra are annexed herewith as Annexure No. CA-3 and CA-4.

(2) As such, on the date of issue of said office order dated 08.05.2002, Sri Anil Kumar was not holding the charge of Managing Director of Uptron India Limited and U.P. Electronics Corporation Limited as he had already left the charge on 04.05.2002 and new Managing Director, Sri G.K. Batra had taken over the charge of Managing Director of U.P. Electronics Corporation Limited and Uptron India Limited on 06.05.2002. As such, it is evident that the said Annexure No. 3 of Claim Petition is forged, fabricated and manipulated by the petitioner, with a view to obtain undue advantage by the petitioner being the Head of the Personnel Department at the relevant period, for which he is liable to be prosecuted under law.

(3) It is relevant to point out here that the said Annexure No. 3 of the claim petition was never produced/submitted by the petitioner before the new MD, during his service tenure, nor being taking VRS from Uptron India Limited. In fact the said Annexure No. 3 of the claim petition is not in existence. It is also pertinent to mention here that Sri Anil Kumar, the then MD was not competent to issue any transfer order/attachment order on 08.05.2002 in respect of the employees of Uptron India Limited and U.P. Electronics Corporation Limited. Petitioner was employee of Uptron India Limited, where he opted for VRS and relieved from Uptron India Limited under VRS.

12. That in reply to the contents of the para 4.10 related to Annexure No. 6 of the claim petition, which is transfer/attachment order dated 28.06.2003, issued by Sri Deepak Kumar, the then Managing Director, Uptron India Limited in respect of 04 employees of Uptron India Limited, it is respectfully submitted that the said alleged transfer order was never submitted by the petitioner nor by the other 03 employees named in the alleged transfer order. It is further submitted that the petitioner was never relieved from Uptron India Limited and as such he did not join at U.P. Electronics Corporation Limited nor worked in U.P. Electronics Corporation Limited.

(1) It is also clarified that the alleged transfer order was not implemented in the case of any of the employees named in the said order including the petitioner, as they were not relieved from Uptron India Limited. Moreover, the said alleged transfer order was issued by M/s Uptron India Limited and it was not binding on U.P. Electronics Corporation Limited. In view of the above, it is clear that the petitioner managed the said alleged transfer order to get undue advantage at this stage, although, he did not join nor worked in UP Electronics Corporation Limited during the relevant period (September 2001 to 30.04.2003 and May 2003 to January, 2004). Hence not entitled for any salary." (emphasis added)

16. Learned counsel for petitioners contended, when question, whether claimant-respondent-1 was an employee or could have been treated to be an employee of M/s UPECL was raised, Tribunal has passed impugned judgment holding all defendants impleaded in the claim petition as respondents as responsible for payment of salary to claimant-respondent-1 without deciding this issue hence its judgment is patently illegal. It is submitted that claimant-respondent-1 can pursue his remedy against his employer and not against other independent companies or bodies.

17. Claimant-respondent-1 who has appeared in person stated that petitioner UPCCL is holding company of M/s UPTRON. State Government being 100% shareholder, ultimate financial liability is upon them. Therefore, Tribunal has rightly allowed claim petition directing all defendants impleaded therein to make payment of salary to claimant-respondent-1. He placed before this Court State Government's order dated 01.08.1991 clarifying that M/s UPTRON is a subsidiary company of M/s UPECL and a 100% Government company. The said certificate was issued by Shri R.P. Singh, Joint Secretary, U.P. Government, Electronics Department, Lucknow which reads as under:-

**;g izekf.kr fd;k tkrk gS fd viVz~ku bf.M;k fyfeVsM] mRrj izns'k bysDVz~kfuDl dkjiksjs'ku fyfeVsM dh ,d lgk;d dEiuh gS rFkk ;g jkT; ljdkj dk ,d iw.kZr;k 'kkldh; fuxe gSA**

It is certified that Uptron India Limited is a subsidiary company of Uttar Pradesh Electronics Corporation Limited and it is entirely a Government Corporation of State Government. (emphasis added)

(English Translation by Court)

18. Question up for consideration in the case in hand that M/s UPTRON, admittedly, is a subsidiary company of M/s UPECL and holding company, i.e., M/s UPECL is a 100% State Government owned company. Hence can it be said that for the purpose of financial claims, claimant-respondent-1, an employee of M/s UPTRON, an independent Company, can enforce his claim against M/s UPECL or the State Government.

19. State Government has issued a letter dated 04.07.2002 addressed to Managing Director, M/s UPTRON clarifying that payment of salary of employees of M/s UPTRON is not responsibility of State Government, relevant extract thereof reads as under:-

 
	**viVz~ku dfeZ;ksa ds osru Hkqxrku ds lEcU/k esa mYys[kuh; gS fd fuxe ds dfeZ;ksa dk osru Hkqxrku gsrq 'kklu mRrjnk;h ugha gS D;ksafd fuxe ds dfeZ;ksa dk fu;qfDr izkf/kdkjh 'kklu ugha gSA bl gsrq viV~zku bf.M;k [email protected]/kr fuxe gh mRrjnk;h gSA**
 
	It is worth mention with respect to payment of salary of employees of Uptron that Government is not responsible for payment of salary to employees of Corporation inasmuch as the Government is not the Appointing Authority of the employees of Corporation. For this, it is Uptron India Limited/concerned Corporation which is responsible.    (English Translation by Court)
 

20. Question about independent status of a company registered under Act, 1956, irrespective of factum as to who is or are its shareholder, has been considered in A.K. Bindal and another Vs. Union of India and others (2003) 5 SCC 163 wherein Company was wholly owned by Government of India. Court said that identity of Government Company remains distinct from Government. Government Company is not identified with Union but has been placed under a special system of control and conferred certain privileges by virtue of provisions contained in Section 619 and 620 of Act, 1956. Merely because the entire shareholding is owned by Central Government, will not make incorporated company as Central Government. Court also held that employees of Government Company are not civil servants and so are not entitled to protection afforded by Article 311 of Constitution of India. Since employees of Government Companies are not Government servants they have absolutely no legal right to claim that Government should pay their salary or that additional expenditure incurred on account of revision of their pay-scale should be met by Government. Being employees of a Company, it is responsibility of Company to pay them salary and if Company is sustaining losses continuously over a period and does not have financial capacity to revise or enhance pay-scale, employees cannot claim any legal right to ask for a direction to Central Government to meet additional expenditure which may be incurred on account of revision of their pay-scale.

21. Similarly, in Officers and Supervisors of I.D.P.L. Vs. Chairman and Managing Director I.D.P.L. and others (2003) 6 SCC 490, Court considered question "whether employees of public sector enterprises have any legal right to claim revision of wages irrespective of financial condition of Companies in which they are working on the ground that Government should provide financial support since the Companies are public sector enterprises are Government Companies". Answering aforesaid question, Court said that no legal right can be claimed for such employees against Government obliging it to pay their salary or any additional expenditure. Court followed and relied on its earlier decision in A.K. Bindal and another Vs. Union of India and others (supra).

22. In the context of M/s UPTRON itself, issue has been considered by Apex Court in State of U.P. and another Vs. UPTRON Employees Union, CMD and others, Civil Appeal No. 6217 of 1999; decided on 26.04.2006. Court held, even if M/s UPTRON is a subsidiary of Government Company, there is no legal obligation cast upon State Government to pay wages due to workmen. Rights of workmen are governed by relevant provisions of Act, 1956 where their claim have been accorded priority.

23. When confronted with aforesaid authorities, claimant-respondent-1 submitted that for some time, he was required to discharge duties in M/s UPECL and, therefore, financial liability of claimant-respondent-1 should be discharged by M/s UPECL being Holding Company, if subsidiary company i.e. M/s UPTRON is not possessed requisite funds and for the purpose of claimant-respondent-1, source of discharge of liability is irrelevant. This submission is thoroughly misconceived inasmuch as nothing has been brought to our notice showing that claimant-respondent-1 was an employee of M/s UPECL. Admittedly, he was appointed in M/s UPTRON which is an independent juristic person, having been incorporated under provisions of Act, 1956 and employees of such independent juristic person cannot claim discharge of their liabilities by shareholders or any body who has entire shareholding in such independent juristic person. Unfortunately, Tribunal, despite specific issue raised by petitioners, has failed to consider this aspect and therefore, judgment of Tribunal insofar as it is against petitioners cannot be sustained.

24. In view thereof, writ petition is allowed. Impugned judgment of Tribunal dated 30.07.2015 passed in Claim Petition No. 980 of 2012 insofar as its direction has included within its ambit petitioners also, is hereby set aside. We clarify that this judgment shall not affect impugned judgment of Tribunal insofar as direction has been issued against respondents-2 and 3 who have not come before this Court to challenge impugned judgment of Tribunal.

Order Date :- 5.7.2017

Shubham