Back
2009 Supreme(Kar) 712
High Court of Karnataka
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
P. Muthu Pandy & Others
Versus
India Tourism Development Corporation Limited & Others
Writ Petition No.28700 of 2003 (S-TR) Connected with Writ Petition No.5791 of 2004 (S-TR)
Decided on : 14-10-2009
For the Petitioners:Shri. Joshua H. Samuel, Shri D. Leelakrishnan, Advocates. For the Respondents:R2, Smt. Shweta Bharti Advocate for M/s. Aamstel Law Associates, R1, N. Devadas, Senior Central Government Standing Counsel, R2 & 3, K. Prabhakar Rao, Advocates.
Headnote:LABOUR & SERVICES - Transfer: [Anand Byrareddy,J] Transfer - Petitioner prayer to quash the orders of the transfer passed by the third respondent - Direction sought to the respondent to continue the petitioners in Hotel Ashok, Bangalore and Airport Ashok Restaurant, Bangalore Airport, Bangalore on the existing terms and conditions of employment under the Respondent No.1 Corporation - Authority of third Respondent/ M/s Bharat Hotels Limited to transfer the petitioners to one of its own units - Article 13 of the management agreement - Scope and effect of the agreement on the petitioners - Consideration of -Held, Respondent No.3 is required to continue the regular employees in service in the "Hotel" (as defined in Article 1 1.1(o) of the Agreement. There is no provision for transfer to any other hotel. The alternative to reduce the employee strength at Hotel Ashok is made available to the third respondent by offering an option to voluntarily retire on terms that are not in any manner, less favourable than the voluntary retirement scheme of the lessor as on the closing date. Hence, respondent No.3, claiming the authority to transfer the petitioners to other units belonging to it is not to be found under the agreement, on a plain reading of the same. Further, ITDC is not absolved of its obligation to be answerable to the petitioners merely on account of the Scheme of de-merger and transfer of its properties at Hotel Ashok Bangalore in favour of respondent No.3 in so far as the petitioners are concerned. Respondent No.3 acts instead of ITDC insofar as their service conditions are concerned it can also be said that respondent No.3 is not however, conferred with any authority to transfer the petitioners to any other unit either of ITDC or its own. Such an agreement which has in effect changed the service conditions of the petitioners without their consent would require the impugned orders to be set at naught.
These petitions are heard and disposed of together having regard to the common circumstances involved.
2. In the first of those petitions the facts are as follows:
The Indian Tourism Development Corporation Limited (ITDC for brevity) was established in the year 1996 by the Government of India in the Ministry of Tourism, as an autonomous Public Sector Corporation-incorporated under the Companies Act, 1956. It is a Government Company under Section 617 of the Act.
The object of ITDC is to develop the infrastructure to promote tourism in India. It has established a hotel chain known as The Ashok Group. It has hotels in almost all major cities of India. Hotel Ashok Bangalore is one such. The corporation has secured other Divisions and allied activities. It is not in dispute that ITDC is amenable to the writ jurisdiction of this Court.
The Second-respondent is also a Government of India undertaking promoted by ITDC for the purpose of giving effect to a Scheme of Demerger. It was apparently incorporated to take over Hotel Ashok at Bangalore apart from certain other hotels in the country. It was incorporated in the year 2002.
The first petitioner had joined the services of ITDC as Hotel Operation Trainee (Kitchen) in the year 1975. After training he was posted as Chef Grade-II, in the year 1978, at Kovalam Ashok Beach Resort. He was promoted as Sous Chef at Kovalam and Hotel Madurai Ashok, Madurai. He was then transferred to Hotel Ashok, Bangalore in the year 1989. He was promoted as Executive Chef Grade-II in the year 1993 and as Executive Chief Grade-I in the year 1998. He was working in that capacity as on the date of the petition.
The second-petitioner joined the services of ITDC in the year 1981 as an Assistant Manager (Engineering) and was posted to work at Hotel Ashok Bangalore. He was transferred to Lalit Mahal Palace Hotel, Mysore in 1985. In 1994 he was transferred to Kovalam Ashok Beach Resort.
In the year 1999, he was transferred to Hotel Ashok Bangalore and promoted as Manager. He was working in that capacity as on the date of the petition.
Soon after the incorporation of the Second respondent in the year 2001, a scheme of demerger was entered into between ITDC and the second respondent. But as the Department of Company Affairs had not given its formal approval of the Scheme, the second respondent did not hand over the properties of Hotel Ashok, Bangalore. Hence, the petitioners continued to be employees of ITDC.
In November 2001, the petitioners learnt that ITDC proposed to lease out Hotel Ashok Bangalore to the third respondent. The petitioners and others expressed their apprehensions in respect of such a move. ITDC replied to state that their interests would be safe-guarded. And by a lease-cum-Management agreement dated 29.11.2001, the second respondent leased Hotel Ashok Bangalore and Airport Restaurant Bangalore to the third respondent for a period of 30 years, and transferred all ITDC employees working therein, including the petitioners to the third respondent.
The Chairman of the respondent, by a letter dated 29.11.2001, informed the Staff of Hotel Ashok Bangalore that the third respondent had taken over the management of the Hotel and Solicited co-operation of all concerned. This was followed by a similar letter from the Chairman and Managing Director of ITDC endorsing the above circumstance. The Staff in turn raised strong protests.
The petitioners and the Karnataka ITDC Hotels Officers Association, Bangalore filed a writ petition in W.P. No.42641/2001 before this Court challenging the above actions of the respondents. The same was disposed of on 28.12.2001 in the light of the decision of the apex Court in Balco Employees Union vs. Union of India 2002 (1) LLJ 550. An appeal filed against the same is pending consideration along with several other matters.
Further by separate orders dated 10.06.2003 the third respondent has issued orders of transfers, transferring the first petitioner to the third respon
