PANKAJ SINGHAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 18. 2. 2001 against the respondents with the prayer that by an appropriate writ, order or direction, the respondents No. 1 to 5 be directed to give an option to all the officers of India Tourism Development Corporation Limited working in Laxmi Vilas Palace Hotel (respondent No. 4), who are the petitioners in this writ petition to exercise their option to continue to be in the service of respondent No. 2 India Tourism Development Corporation Limited (for short "the Corporation") and get posted to any of the units/divisions of the said Corporation, which are presently not being disinvested and further, the scheme of transfer of services of the petitioners from respondent No. 2 Corporation to Udaipur Hotels Private Limited (respondent No. 3) be quashed and set aside.

(2.) THE case of the petitioners as put forward by them in this writ petition is as follows:- THE petitioners, who are seven in number, are presently posted at Laxmi Vilas Palace Hotel, Udaipur (respondent No. 4 ). THE case of the petitioners is that respondent No. 2 Corporation was established in the year 1966 by the Government of India in the Ministry of Tourism as an autonomous public sector Corporation with the objects set out in its Memorandum of Association. It was incorporated under the Companies Act, 1956. THE Government of India owns about 90% of the equity share capital of the Corporation and its entire administrative and financial control vests in the Government of India. THE further case of the petitioner is that Government of India had developed the policy of disinvestment and in pursuance of their disinvestment policy, they have decided to sell the Hotel Laxmi Vilas Palace (respondent No. 4) to a private sector. THE further case of the petitioner is that for the purpose of sale of hotels, the Secretary to the Government of India, Ministry of tourism appointed one Lazard India Limited as consultant for sale of Laxmi Vilas Palace Hotel (respondent No. 4 ). As per the recommendations of the said consultant, for the purpose of sale of respondent No. 4 Hotel Laxmi Vilas Palace, Udaipur, a new shell company was incorporated by the name Udaipur Hotels Private Limited (respondent No. 3) under the provisions of the Companies Act, 1956. THE further case of the petitioners is that a Scheme has been prepared and filed with the Department of Company Affairs under Section 391 read with section 394 of the Companies Act, 1956 and according to the said Scheme, Hotel Laxmi Vilas Palace (respondent No. 4) is to be transferred to respondent No. 3 Udaipur Hotels Private Limited alongwith its employees/officers including the petitioners. THEreafter, Udaipur Hotels Private Limited (respondent No. 3) shall be handed over to the private bidders. Hence, in the guise of sale of Hotel, the petitioners are being surreptitiously shunted out of respondent Corporation to serve under a new employer. THE further case of the petitioners is that their interest would be safeguarded upon transfer of Laxmi Vilas Palace Hotel (respondent No. 4) to Udaipur Hotels Private Limited (respondent No. 3) and then to any private company, if the petitioners are given opportunity to exercise their options either to opt for respondent Corporation Service and get posted to respondent Corporation's Head Quarters or to any of the units/divisions of the respondent Corporation which are still carrying on their activities without being demerged or opt to continue in the Hotel where they are presently working irrespective of who owns/manages Hotel. THE further case of the petitioner is that they were never served with any notice regarding the above scheme of arrangement worked out by the respondents No. 1 to 3 nor they were consulted prior to transfer etc. etc. THE further case of the petitioner is that their services are transferable through out India and it is by chance that at present, they are posted at Hotel Laxmi Vilas Palace, Udaipur (respondent No. 4) when the unit is being sold. Thus, if they are shunted out from the present place of posting, this action of the respondents No. 1 and 2 would amount to arbitrary action and ultra vires the Constitution of India. Thus, such transfer of the petitioners from respondent No. 4 Laxmi Vilas Palace Hotel, Udaipur to the respondent No. 3 Udaipur Hotels Private Limited under the garb of disinvestment policy is not only illegal, but also unjust, arbitrary and violative of Articles 14 and 16 of the Constitution of India and therefore, the petitioner cannot be transferred. Hence, this writ petition with the prayers as stated above. A reply to the writ petition was filed by the respondents No. 1 and 2 it has been submitted by the respondent No. 1 and 2 that the Hon'ble Supreme Court has upheld the police of disinvestment of public undertakings in BALCO Employees' Union (Regd.) vs. Union of India and Ors. (1), and the writ petitions questioning the validity of disinvestment policy were dismissed. THE disinvestment is a policy decision of the Government of India and the Hon'ble Supreme Court has held that the said policy decision should be least interfered in judicial review and that even Government employees have no absolute rightly under Articles 14, 21, 311 of the Constitution of India and that the Government can abolish the post itself. In the present case, the petitioners are not Government employees and are merely employees of PSU. It has been further submitted by the respondents No. 1 and 2 that after disinvestment of Laxmi Vilas Palace Hotel, Udaipur (respondent No. 4), the petitioners are now the employees of Udaipur Hotels Private Limited (respondent No. 3 ). THE respondent No. 4 Laxmi Vilas Palace Hotel, Udaipur alongwith its employees has been transferred and now they are known as Udaipur Hotels Private Limited (respondent No. 3 ). It has been further submitted by the respondents No. 1 and 2 that process of disinvestment does not amount to termination of services of employees but it is a continuation of their employment with the new purchaser. Hence, the writ petition filed by the petitioners be dismissed.