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High Court Of Calcutta
Pranab Kumar Chattopadhyay And Arunabha Basu, JJ.
ASHOK KUMAR GUPTA - Appellant
Versus
UNION OF INDIA - Respondent
F. M. A. 602 Of 2004
Decided On : 05/11/2007
MAINTAINABILITY OF APPEAL - PRIVATISATION OF COMPANY - CESSATION OF STATUS - WRIT JURISDICTION - LOCUS STANDI - LIABILITY OF FORMER GOVERNMENT COMPANY - TRANSFER OF SHARES - PENDING PROCEEDINGS - ORDER 22 RULE 10 CPC - EMPLOYEES' RIGHTS - VESTED RIGHT - CHANGE OF CIRCUMSTANCES - PRELIMINARY OBJECTION REJECTED - APPEAL MAINTAINABLE.
Fact of the Case:
Jessop and Co., a government company, became sick and was referred to the BIFR. The BIFR-sanctioned scheme for rehabilitation fell through. The Government of India effected disinvestments by transferring its shares to a private party. Employees of Jessop and Co. who had taken voluntary retirement under the Voluntary Retirement Scheme, 1998, filed a writ petition seeking recomputation of their benefits under the scheme after giving fitment benefit w.e.f. 1st January, 1992, in view of the revision of pay scales introduced on 1st January, 1999, w.e.f. 1st January, 1992, pursuant to the policy decision of the Government of India dated 19th July, 1995.
Finding of the Court:
1. The appeal is maintainable as it was valid at the time of commencement and could not become invalid even by subsequent legislation unless retrospective effect is given. 2. The provisions of Order 22 Rule 10 of the Code of Civil Procedure are applicable, allowing the continuation of a pending proceeding notwithstanding any assignment, creation, or devolution of any interest during the pendency of the proceeding. 3. The status of Jessop and Co. was a Public Sector Enterprise at least on the date of filing of the instant appeal, and therefore, the said appeal cannot become invalid due to the subsequent decision of the respondent Government of India on account of privatization of the company by transferring its shares in favor of private individuals. 4. The Government of India or the respondent-company cannot render a pending appeal infructuous by its subsequent action. 5. The Government of India, during the pendency of the appeal, permitted the transfer of shares of the respondent-company, it cannot avoid its responsibility to protect the rights of the employees to enjoy the benefits on the basis of the earlier circulars or orders issued by the competent authority of the said' Government of India.
Issues: 1. Whether the appeal is maintainable in light of the cessation of the status of the respondent company due to privatization? 2. Whether the appellants have the locus standi to pursue the matter in the present case? 3. Whether the liability of the erstwhile Government company, if any, under the circulars can be the liability of the present management?
Ratio Decidendi: 1. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation. 2. The cause of action for filing the writ petition crystallized at a point of time when the respondent authority was, admittedly, subject to the writ jurisdiction. The said cause of action confers a vested right to the writ petitioners to have their grievances adjudicated in a writ proceeding. 3. The change of circumstances is not attributable to the writ petitioners, and therefore, the instant appeal is maintainable, and the preliminary objection raised on behalf of the respondent-company cannot be sustained.
Final Decision: The preliminary objection regarding the maintainability of the appeal raised by the respondent company is rejected. The appeal is maintainable and will be listed for further hearing to adjudicate the other issues raised in the appeal on merits.
( 1 ) ON behalf of the respondent company, a preliminary objection has been raised regarding maintainability of this appeal in view of cessation of the status of the respondent company. In the aforesaid circumstances, we are of the opinion that the issue relating to the maintainability of this appeal should be decided first before deciding any other issue raised in this appeal on merits. Therefore, only point is to be decided at this stage is whether the instant appeal is maintainable. The learned Counsel of the respective parties has also confined their arguments only in relation to the question of maintainability of the instant appeal.
( 2 ) THE writ petition out of which the present appeal arises was filed when the respondent-company was treated as sick company and the question of revival was pending before the BIFR. The writ petitioners, who were employees of Jessop and Co. Ltd. took voluntary retirement under the Voluntary Retirement Scheme, 1998 during March to October, 1998, The writ petitioners had prayed in the writ petitionfor recomputation of the benefits under the Voluntary Retirement Scheme after giving fitment benefit w. e. f. lst January, 1992 in view of revision of pay scales introduced on 1st January, 1999 w. e. f, 1st January, 1992 pursuant to the policy decision of the Government of India dated 19th July, 1995.
( 3 ) IT has also been contended on behalf of the appellants that the said appellants/writ petitioners do not get pension and retired upon accepting a meagre amount which is insufficient to live a decent life in the present days. Jessop and Co. became sick and therefore, it was referred to the Board for industrial and Financial Reconstruction (hereinafter referred to as BIFR ). The scheme for rehabilitation sanctioned by BIFR fell through. Finally, the government of India effected disinvestments by transferring its shares to private party.
( 4 ) IT has been submitted on behalf of the respondent-company that the said jessop and Co. ceased to be a Government company or an authority within the meaning of Article 12 of the Constitution of India in view of privatisation of the said company. The learned Counsel of the respondent Jessop and Co. immediately after commencement of the hearing of the appeal raised the aforesaid preliminary objection regarding maintainability of the appeal on the ground that the said Jessop and Co. has ceased to be a Government company and therefore, not amenable to the writ jurisdiction.
( 5 ) MR. L. K. Gupta, learned Senior Counsel of the respondent-company submits that an appeal being a continuation of the writ proceeding, the appellants are not entitled to pursue the matter any longer in the present case as no writ can be issued against the present management of the Jessop and Co. Mr. Gupta further submits that in order to maintain a writ petition the petitioners have to show that they have locus stand. The said learned Counsel of the respondent-company submits that a petitioner can have locus standi when he has a legal right which has been infringed or is threatened to be infringed and in absence thereof, a writ petition is not entertainable. Mr. Gupta also submits that on the date of filing the writ petition even if the writ petitioner had the locus standi but subsequently in course of the proceeding if the said legal right was extinguished then the said writ petitioners would not be entitled to maintain the proceeding any more due to loss of locus stand.
( 6 ) IT has also been submitted on behalf of the respondent-company that the maintainability of a writ petition and further proceedings arising therefrom by way of appeal depends on the respondents since a writ petition is maintainable against a "state" or "other authority" mentioned in Article 12 of the Constitution. The learned Senior Counsel of the respondent-company submitted before this court that at the time of presentation of the writ petition, the respondent- company was amenabl
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