CMP.Nos.4834 and 4835 of 20011. The General manager Balmer Lawrie and Co v. S.Rajagopalan2. The General Manager AVI-OIL India Ltd. (A Public Company registered under

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.04.2006CORAM:THE HON'BLE MR. JUSTICE P.SATHASIVAMANDTHE HON'BLE MR. JUSTICE J.A.K.SAMPATHKUMARWRIT APPEAL Nos.551 & 552 of 2001and CMP.Nos.4834 and 4835 of 20011. The General manager Balmer Lawrie and Co., Ltd., (A Govt. Of India Enterprises) First Floor, JVL Plaza 501 Anna Salai Madras 18.2. The Deputy General Manager (HRD) Balmer Lawrie and Co. Ltd. (A Govt. Of India Enterprises) First Floor, JVL Plaza 501 Anna Salai Madras-18... Appellants in both the appeals.vs.1. S.Rajagopalan2. The General Manager AVI-OIL India Ltd. (A Public Company registered under Companies Act) First Floor, JVL Plaza 501 Anna Salai Madras 18... Respondents in both the appeals.Writ Appeals filed under Clause 15 of the Letters of Patentagainst the common order of the learned Judge Mr. Justice P.D.Dinakaran, dated 05.12.2000 made in W.P.Nos.8872 and 8873 of 1995.This petition presented to this Court under Article 226 ofConstitution of India to issue a Writ of Certiorarified Mandamuscalling for the records of the second respondent bearingNo.CPD/SR/1 dated 19.1.95 quash the same and direct the respondentto order constitution of the petitioner's employment with thethird respondent's company in respectively WP.No.8872/95 andWP.No.8873/95.For appellants : Mr.Sanjay Mohan for M/s.Ramasubramaniam Assts.For respondents : Ms.Selvi George for R.1 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT(Judgement of the Court was delivered by P. SATHASIVAM,J.)Aggrieved by the common order of the learned single Judgedated 05.12.2000 made in Writ Petition Nos.8872 and 8873 of 1995,the General Manager and the Deputy General Manager of BalmerLawrie and Company Ltd. (a Government of India Enterprise),Madras-18, have filed the above writ appeals.2. For convenience, we shall refer the parties as arrayed inthe writ petitions.3. Against the proceedings of respondents 1 and 2 (BalmerLawrie and Company Ltd.) dated 19.01.1995, placing the writpetitioner under suspension and reverting him back to M/s. BalmerLawrie and Comapny Ltd. in his substantive position of DeputyManager (Finance), the petitioner has filed Writ Petition Nos.8872and 8873 of 1995. The case of the petitioner is briefly statedhereunder: According to him, he was appointed by the first respondentas Assistant Manager (A&F) on 08.01.1990 and thereafter, based onhis service, he was recommended and appointed as General Manager(Personnel) of Balmer Lawrie and Company Ltd. as Finance Manager-cum-Company Secretary in the Nyco-B1.Ioc a joint venture company,which was later on incorporated as AVI OIL India Ltd. a publiccompany, registered under the Companies Act 1956, the thirdrespondent. By this appointment, he was given a lien on theBalmer Lawrie and Company for a period of two years with effectfrom the date of his assuming charge in the newly formed company.Further, he was not deputed to the third respondent Company, butwas indeed appointed to it. Thereafter, he ceased to be anemployee of Balmer Lawrie and Company Ltd. and became the employeeof the third respondent Company though he was given the option fortwo years to get back to Balmer Lawrie and Company Ltd. In termsof the said appointment, he was also discharging his duties withthe first and second respondents till May, 1994. The first andsecond respondents ceased to have any administrative control overhim. While the first and second respondents are Officials ofGovernment of India undertaking, third respondent is a PublicLimited Company, its administration is totally independent. Ontransfer to third respondent Company, the petitioner became anemployee of it and governed by its Rules and Regulations. Whileso, the second respondent i.e., Deputy General Manager, BalmerLawrie and Company Ltd. without any basis, by his order dated19.01.1995, reverted him back to Balmer Lawrie and Company Ltd.This reversion is without jurisdiction, as he had been transferredto third respondent Company and not deputed to it. He also servedwith another order dated 19.01.1995, suspending him from serviceof Balmer Lawrie and Company Limited. This order is mala fidesince it has been issued after a period of 20 months of hisoutcome from the first respondent Company. https://hcservices.ecourts.gov.in/hcservices/

4. Before the learned single Judge, the General Manager ofthe first respondent Company filed a common counter affidavit,wherein it is stated that the petitioner was employed in theirCompany since 08.01.1990 and he continued to be an employee tillhe was suspended on 19.01.1995. The petitioner’s service wastransferred on secondment basis to the third respondent Company.The petitioner was all along paid salary by the Balmer Lawrie andCompany till December, 1994 and his claims of perquisites werealso approved and reimbursed by them. Though the petitioner wasworked with the third respondent, the secondment allowance wasreceived by the petitioner without any protest. Thepetitioner’s service were given to the third respondent Company onsecondment basis and also with condition that respondents 1 and 2could re-transfer the petitioner whenever his service was requiredby them. In the case of petitioner, it is a case that involves nochange of Employer, but was merely a case wherein he wastransferred to third respondent along with lien being with BalmerLawrie and Company Ltd. for a maximum period of two years. He wastold that he would continue to look after his responsibilitieswith Balmer Lawrie and Company Ltd. 5. The learned single Judge, after finding that the optionfor reversion provided under order dated 05.10.1993 is notabsolute, but only conditional and also redundant, concluded thatthe proceedings dated 05.10.1993 has to be considered only as atransfer of service of the petitioner from first respondentCompany to third respondent Company once for all, the firstrespondent Company has no jurisdiction to pass the impugned ordersof suspension and reversion; quashed both the proceedings andallowed the writ petitions, hence the present appeals by BalmerLawrie and Company Ltd.6. Heard Mr. Sanjay Mohan, learned counsel for appellants andMrs.Selvi George for the contesting first respondent.7. The only point for consideration in these appeals is,whether even after the order dated 05.10.1993 and 01.11.1993, thefirst respondent, Balmer Lawrie and Company Ltd. has power to takeaction against the petitioner, such as passing order ofsuspension and reversion?8. In the earlier part of our order we have mentioned the twoorders passed by the first respondent on 19.01.1995. One is anorder suspending the petitioner pending disciplinary action andanother is reverting him to M/s. Balmer Lawrie and Company withimmediate effect and posting him in a substantive position ofDeputy Manager (Finance). Both the said orders were challenged bythe petitioner in the writ petitions. The main ground of attackwas that, after the order dated 05.10.1993/01.11.1993, he becamean employee of the third respondent, respondents 1 and 2 have noauthority or power to take any action including initiation ofdisciplinary proceedings against him. 9. On the other hand, it is the case of respondents 1 and 2that the petitioner was merely transferred to third respondentCompany with a lien over Balmer Lawrie and Company for a period oftwo years. It is also their claim that in the absence ofexercising option within the period of two years, and of the factthat even after transfer to third respondent Company, the https://hcservices.ecourts.gov.in/hcservices/ petitioner was attending the work of Balmer Lawrie and Company,the salary, perks, house loan, etc., were paid only by BalmerLawrie and Company, they are entitled to take disciplinaryproceedings against him. In order to appreciate the above stand,it is useful to refer the proceedings dated 05.10.1993/01.11.1993. “BALMER LAWRIE & CO. LTD.Corporation Personnel Department(A GOVERNMENT OF INDIA 21, Nataji Subahaa Road ENTERPRISES) Calcutta 700 001 (India)Ref:GN(P)SR/1Dated 5th October 93.Sri S.RajagopalanAssociate ServicesMadras.Sub: Transfer.1.Kindly refer to the discussions on the abovesubject.2.Accordingly, it has been decided to transfer you toNYCO-BL-IOC Joint Venture Company at Madras as FinanceManager-cum-Company Secretary in your existing basicpay and grade with immediate effect. You are rejectedto report to Shri. VN. Sharma, Deputy General Managerfor further instructions.3.You will have lien with Balmer Lawrie & Co.Ltd., for a maximum period of 2 years effective from the date you assume charge.4.You will have to exercise the option either forabsorption in NYCO-BL-IOC Joint Venture Company orreversion to Balmer Lawrie & Co.Ltd., before theexpiry of 2 years lien period only. However, in caseyou opt for reversion, actual reversion will besubject to availability of a suitable vacancy, whichmay be before or after expiry of the lien period.5.Further, you will continue to look after your existing responsibilities till such time the new incumbent joins.6.All others terms and conditions of your service will remain unaltered.We wish you all the success in your new assignment.Yours faithfullyFor BALMER LAWRIE & CO. LTD.(U. RAY),General Manager (Personnel) “ https://hcservices.ecourts.gov.in/hcservices/

10. It is clear from the above letter that the petitioner wasgiven lien with Balmer Lawrie and Company for a maximum period oftwo years effective from the date he assumes charge with thirdrespondent. He has free exercise option either for absorption inthe NYCO-BL-IOC (AVI OIL India Limited) third respondent orreversion to Balmer Lawrie and Company before the expiry of twoyears lien period. It further shows that when he opts forreversion, actual reversion will be subject to availability of asuitable vacancy. As per Clause 5 he has to continue to lookafter the existing responsibility in the Balmer Lawrie and Companytill such time the new incumbent joins. Clause 6 makes it clearall other terms and conditions prevail in Balmer and LawrieCompany will remain unaltered. 11. It is not in dispute that the petitioner has not opted orexercised his lien before the expiry of two years period. It isalso clear from the terms of the proceedings dated05.10.1993/01.11.1993, particularly in view of Clause 3 that hewas given lien with Balmer Lawrie and Company Ltd. for a maximumperiod of two years, respondents 1 and 2 can very well revert himback to Balmer Lawrie and Company within the expiry of saidperiod. As rightly argued by Mr. SanjayMohan, a perusal of allthe Clauses, particularly, Clause 2 to 6 make it clear thatpetitioner’s service were given to the third respondent onsecondment basis and also with condition that respondents 1 and 2could re-consider the petitioner whenever his service would berequired. With various clauses in the proceedings dated05.10.1993/01.11.1993, we are satisfied that the petitioner’sservice was transferred on secondment basis to the thirdrespondent Company. Our conclusion also fortified in variouscircumstances as put forth by respondents 1 and 2.(1)Even after transfer, the petitioner was allalong paid salary by the first respondentCompany, viz., Balmer Lawrie and Company Ltd.till the month of December, 1994.(2)His norms of perquisites were also approved andre-imbursed by the first respondent Company. (3)The petitioner was paid by the first respondentCompany his secondment allowance and the samewas received by the petitioner without anyprotest while he worked with the thirdrespondent.(4)He also availed furniture loan even after05.10.1993 from Balmer Lawrie and Company.(5)The first respondent Company alone paid onbehalf of the petitioner in respect ofreimbursement fees to professional bodies /institutes, such as, ICMA, London, Medicalexpenses reimbursement, etc. https://hcservices.ecourts.gov.in/hcservices/ (6)The petitioner by quoting his employee number(under Balmer Lawrie and Co. Ltd.) applied fora No Objection Certificate to receive passport. 12. It is also brought to our notice that the petitioner hasalso claimed secondment allowance by his letter dated 23.07.1994,wherein he himself admitted that he was under secondment andtherefore entitled to secondment allowance from his employer andalso continue to receive the secondment allowance from BalmerLawrie and Company Ltd. from the time he commenced to work withthe third respondent, which would not have been available, had hebeen an employee of the third respondent. The claim of salary,payment of salary and other perquisites issuance of NOC withrenewal of passport, payment of secondment allowance by the BalmerLawrie and Company Ltd. are available in the form of letters /proceedings / orders in the typed set filed by the appellantCompany.13. Further in the letter dated 05.10.1993 and 01.11.1993,one of the conditions mentioned therein is that petitioner willcontinue to look after the existing liabilities till such time thenew incumbent joins. Another condition in the said letter isthat other terms and conditions of his service will be remainulaltered and he will continue to retain his lien in the firstrespondent Company. As rightly argued by Mr. Sanjaymohan areading of all these clauses clearly show that the petitioner iscontinue to be an employee of Balmer Lawrie and Company Ltd.,accordingly, his claim that he has lost his position as publicservice and he could not be reverted back cannot be accepted. Weare also satisfied that since the petitioner was placed onsecondment basis, Balmer Lawrie and Company has every right torecall him as and when his services are required by them. Infact, Balmer Lawrie and Company reverted back the petitioner totheir Company within a period of two years as stated in clause (3)and (4) of the letter dated 05.10.1993 and 1.11.1993. We are alsosatisfied that various Clauses referred to in the said letter makeit clear that it involves no change of employer but merely a casewherein the petitioner was transferred to third respondent withlien being with Balmer and Lawrie for a maximum period of twohears and he was also specifically informed that he would continueto look after his responsibilities with them. All these materialaspects were not properly considered by the learned Judge andcommitted an error in holding that the petitioner did not continueto hold lien for his service upon the appellants. As rightlypointed out the petitioner has not challenged the order dated05.10.1993/01.11.1993 and in such circumstance the said order wasfinal and binding upon the parties, in which case, as communicatedin the order dated 05.10.1993, only the first respondent, i.e.,Balmer Lawrie and Company, is empowered to take action against thepetitioner. No doubt, the petitioner is equally entitled todefend the same in accordance with law.In the light of the above discussion, particularly in view ofvarious Clauses in letter dated 05.10.1993 / 01.11.1993, we areunable to accept the reasoning of the learned Judge. We are alsounable to accept the conclusion of the learned Judge that https://hcservices.ecourts.gov.in/hcservices/ proceedings dated 05.10.1993 has to be considered only as atransfer of service of the petitioner from first respondentCompany to third respondent Company once for all. As pointed outabove, particularly in the light of Clauses 3 to 6 in letter dated05.10.1993/01.11.1993, the said conclusion is not warranted and wehold that the first respondent Company has jurisdiction to passthe impugned order dated 19.01.1995. Consequently, the commonorder dated 05.12.2000 made in Writ Petition Nos.8872 and 8873 of1995, is set aside and the writ appeals are allowed. No costs.We make it clear that in the event of pursuing the disciplinaryproceedings, the writ petitioner is free to defend the same inaccordance with law and we have not expressed anything on themerits of disciplinary action.In view of disposal of main appeals, connected CMPs., areclosed.khSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The General Manager, Balmer Lawrie and Co., Ltd.(A Govt. of India Enterprises)First Floor JVL Plaza, 501, Anna Salai, Madras-18.2.The Deputy General Manager (HRD)Balmer Lawrie and Co., Ltd.,A Govt., of India Enterprises, First Floor JVL Plaza501, Anna Salai, Madras-18.3.The General Manager, AVI OIL India Ltd., (A Public Company registered under company Act)501, Anna Salai, Madras.+ 2 Ccs to Mr.S.Ramasubramanian & Associates Sr.No.19949.+ 1 Cc to M/s.Titus Jesudoss, Advocate Sr.No.19985.AK (CO)RSM/21.4.2006 Writ Appeal Nos.551 & 552 of 2001