Ladley Mohan vs Uoi & Ors.
2010 Latest Caselaw 2368 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            W.P.(C) 1479/1995 & WP(C)4542/1998


%                                                Date of decision: 4th May, 2010


LADLEY MOHAN                                                        ..... Petitioner
                             Through: Petitioner in person.


                                      Versus


UOI & ORS.                                                      ..... Respondents
                             Through:      Mr. Sandeep Prabhakar and Mr.
                                           Amit Kumar, Advocates for R-2.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may
        be allowed to see the judgment?                  No

2.      To be referred to the reporter or not?           No

3.      Whether the judgment should be reported          No
        in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petitioner, a qualified Engineer (Mechanical Engineer, B.E. &

M.Tech.) joined the employment of the respondent Modern Food Industries

(India) Ltd (MFIL) as Engineering Manager (Project) w.e.f. 5th February, 1987.

WP(C) 1479/1995 was filed by the petitioner seeking (i) withdrawal of all Office

Memorandums from 17th June, 1994 to 31st March, 1995 issued by MFIL

disallowing the petitioner to cross the efficiency bar at the stage of basic pay

though it was due to be allowed to him and thereby stopping his increment at that

stage; (ii) further seeking the relief of allowing the petitioner to cross the

efficiency bar and to direct MFIL to allow increments to the petitioner; (iii)

quashing of the order of his transfer from Delhi to Jaipur Unit of MFIL and to

allow the petitioner to resume duty at Delhi; and (iv) for a further direction to

MFIL to release the salaries due to the petitioner from December, 1994 onwards.

This court however vide order dated 28th April, 1995 issued notice of the petition

restricted to the withholding of the efficiency bar and not granting the annual

increment to the petitioner. The petitioner also sought interim relief in the said

writ petition for restraining the respondent from declaring result of the

Departmental Promotion Committee held on 17th April, 1996; however the said

interim relief was declined in order dated 26th April, 1996. Rule was issued in

the said writ petition on 22nd August, 1997.

2. WP(C)4542/1998 was filed by the petitioner for a direction to MFIL to

grant promotion to the petitioner in the cadre of Senior Manager with

retrospective effect and for adjustment of all medical leave applied by the

petitioner and further for a direction to MFIL to sanction the balance medical

leave, casual leave, grant increment, quash departmental proceedings and to

regularize the period of stay of the petitioner at the head office in Delhi of MFIL.

The counsel for the MFIL informed this court on 16th October, 1998 that the

services of the petitioner had been terminated on 8th October, 1998. The

petitioner thereafter amended this writ petition to also incorporate therein the

challenge to the order of his termination. Rule was issued in this petition also on

1st October, 2002.

3. Both the petitions are being listed together.

4. The petitioner has in the writ petitions inter alia pleaded that MFIL is an

instrumentality of the respondent Union of India and on which ground Union of

India has been impleaded as respondent no.1 in each petition as a necessary and

proper party. The counsel for the Union of India has been submitting that the

Union of India is neither a necessary nor a proper party and it has been recorded

in the orders in the writ petition that Union of India is merely a proforma party in

the present proceedings.

5. Both the petitions were listed before the court on 18th July, 2008 when the

counsel for Hindustan Unilever Ltd. appeared before the court and informed that

during the pendency of the writ petitions, on account of privatization, MFIL,

which was an undertaking of Union of India, has been disinvested and the unit

has been taken over by Hindustan Unilever Ltd. This court vide order of that

date, allowed the counsel for Hindustan Unilever Ltd to file a short affidavit.

Thereafter, the applications have been filed in both the writ petitions alongwith

additional affidavit seeking dismissal of the petition. MFIL / Hindustan Unilever

Ltd. now questions the continued maintainability of the writ petitions for the

reason that MFIL is no longer a Public Sector Undertaking. In the additional

affidavit supported by documents it is stated that MFIL , being a Public Sector

Undertaking at the time of institution of the writ petition, was a "State" within

the meaning of Article 12 of the Constitution of India and hence amenable to the

writ jurisdiction of this court; however the Government of India vide Notification

dated 2nd March, 2000 disinvested its shareholding in MFIL to the extent of 74%

in favour of the Hindustan Lever Ltd.; pursuant to the disinvestment MFIL

became a joint venture company of Government of India and Hindustan Lever

Ltd.; thereafter vide Notification dated 6th January, 2003, the remaining equity

shares were also transferred in favour of the Hindustan Lever Ltd. and MFIL

became a subsidiary of Hindustan Lever Ltd. ; that no share capital of MFIL is

now held by the Government and none of the Directors on the Board of MFIL

now are the nominees of the Government of India; that post such disinvestment

MFIL has ceased to be a "State" under Article 12 of the Constitution of India;

that after obtaining approvals of concerned courts, MFIL has amalgamated with

Hindustan Lever Ltd. w.e.f. 30th March, 2007 and has ceased to exist as a legal

entity. It is thus stated in the affidavit that that after such disinvestment, the

contractual obligations as claimed by the petitioner cannot be enforced against

MFIL / Hindustan Lever Ltd under the writ jurisdiction of this court and hence

the writ petition is not maintainable.

6. The petitioner sought opportunity to respond to the aforesaid additional

affidavits and has filed a response thereto. The petitioner has not controverted

the factual averments in the affidavits. It is the plea of the petitioner that

MFIL/Hindustan Lever Ltd in its present status, cannot be permitted to shirk all

responsibility which it has taken over. It is pleaded that as per the terms on which

Hindustan Lever Ltd has acquired the shares of MFIL from Union of India, any

suit, appeal or other legal proceedings of whatsoever nature by or against MFIL

pending on that date is not to abate or be discontinued or in any way to be

prejudicially affected by reason of the transfer of the undertaking of MFIL and

such proceedings are to be continued against the transferee company i.e.

Hindustan Lever Ltd. in the same manner and to the same extent as it would or

might have been continued against the transferor company (MFIL) if the scheme

had not been made.

7. The petitioner appearing in person and the counsel for the Hindustan

Unilever Ltd. have been heard. The petitioner besides relying on the clause

aforesaid has also contended that he has been litigating in these petitions for the

last 15 years and if now relegated to a suit, long time will be taken in disposal

thereof also, causing undue prejudice to him.

8. The counsel for the Hindustan Unilever Ltd. has on the contrary relied on

Asulal Loya Vs Union of India 154 (2008) DLT 314. Mr. Asulal Loya

petitioner therein also had filed the writ petition challenging the order of

termination of his services by Bharat Aluminium Company Limited, then a

Government company. During the pendency of the writ petition the said Bharat

Aluminium Company Ltd. was privatized and thereupon it was contended that

the writ petition was no longer maintainable and no relief could be granted

against Bharat Aluminium Company Ltd. since on that date it was not a State or

other authority under Article 12 of the Constitution of India. The counsel for the

Asulal Loya had however contended that the writ petition, when it was originally

filed was maintainable and it would be unjust and unfair to non suit him after so

many years; it was further contended that the ordinary rule of litigation is that

rights of the parties stand crystalised on the date of commencement of litigation

and right to relief should be decided with reference to the date on which the

petitioner entered portals of the Court. This court however held -

i. that Section 6 of the General Clause Act 1897 does not apply to the

Constitution of India;

ii. that a writ petition is not maintainable against a Private Limited

Company or a Public Limited Company in which the State does not

exercise all pervasive control;

iii. that a Government servant having a protection of not only Articles 14

and 16 of the Constitution of India but also of Article 311 has no

absolute right to remain in service;

iv. that the petitioner in that case was not remediless and the apprehension

expressed of limitation for taking appropriate proceedings before

appropriate fora can be taken care of.

This court thus in Asulal Loya (supra) dismissed the writ petition on the

sole ground of the respondent company at the time of hearing of the writ petition

ceasing to be State and amenable to the writ jurisdiction of the court.

9. The aforesaid dicta applies on all fours to the present situation also. The

petitioner in person has contended that Asulal Loya was a workman to whom the

remedy under the Industrial Disputes Act was available and which is not

available to him and he would be rendered remediless. However, neither is that

the position nor was that the consideration for the decision in Asulal Loya. The

petitioner, as aforesaid would have the remedy of the civil court available to him.

10. The petitioner next contends that Asulal Loya did not consider the clause

as aforesaid. Undoubtedly, as per the said clause, the proceeding pending on the

date of privatization against MFIL were to be continued against MFIL/Hindustan

Lever Limited without prejudicially affecting the same; the petitioner would

certainly be affected by this court holding the writ petition to be not

maintainable. However, the question that arises is that, when the writ petition is

not maintainable against MFIL/Hindustan Lever Limited, could MFIL/Hindustan

Lever Limited by agreement aforesaid, make itself amenable to the writ

jurisdiction. It is not open for a person/party to agree or disagree to the

amenability to the writ jurisdiction. If under the law, a party is not amenable to

the writ jurisdiction, he would not so become amenable merely because he has

represented to the other or has agreed with the other that he would be so

amenable. It is a settled principle of law that jurisdiction cannot be vested by

contract in a court which otherwise does not have the jurisdiction. Similarly, if

this court has no jurisdiction to entertain a writ against MFIL/Hindustan Unilever

Limited, which as of today is a private entity, merely because Hindustan Lever

Ltd at the time of acquiring the shares of MFIL from the Government agreed that

the proceedings then pending against MFIL would be continued, would not vest

jurisdiction in this court to entertain a writ against MFIL/ Hindustan Unilever

Limited.

11. The writ petitions therefore cannot continue and are dismissed as not

maintainable. It is clarified that this court has not gone into the merits of the

matter and the petitioner is at liberty to approach any forum for redressal of his

grievance and the time spent by him in these proceedings shall be taken into

consideration for the purpose of limitation. Section 14 of the Limitation Act,

1963 gives protection in such cases. In the facts and circumstances, there will be

no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 4th May, 2010 M