Radha Anand And Ors. v. Indian Investment Centre And Ors.
1997-08-30
SHIVAPPA
body1997
DigiLaw.ai
Judgment :- SHIVAPPA, J. The appellants have preferred these appeals against the common order of the learned Single Judge dated September 2, 1993 made in W. P. Nos. 4960, 4962 and 4965 of 1986. 2. Respondent No. 1 was set up by Government of India and it is a Society registered under the Societies Registration Act to render assistance to nonresident Indians to make Investment in India so that opportunities could be improved by encouraging new entrepreneurs. It decided to set up Entrepreneurial Guidance Bureau (for short EGB') in certain important centres in India, of which one was located at Madras. Respondent No. 4 is one such officer. He was to hold charge of EGB at Madras. The appellants, viz., Ms. Radha Anandan was appointed as Receptionist-cum-Telephone Operator in February, 1981, Mr. N. Ananthakrishnan as Clerk-eum-Typist and Mr. N. Jayakumar as Farash-both in May, 1977 in EGB at Madras. 3. On December 23, 1981 Respondent No. 125 decided to wind up all the branches of EGB located at various centres in India, inclusive of the branch at Madras with effect from December 31, 1981. On such winding up, in order to avoid loss of employment, the staff recruited by 30 EGB at Madras were placed at the disposal of Respondent No. 3 as an interim measure providing them with the basic salary they were drawing earlier for the utilisation of their services either by IDBI or by nominated organisation. Respondent No. 2 agreed to meet the expenditure, subject to condition of all such expenses being reimbursed by IDBI, until they were provided with placements. Despite best of efforts by this organisation, appellants were unable to be provided with any due placement. Consequently, Respondent No. 1 passed orders terminating their services on May 19, 1986, s providing them with salary for three months by means of cheque to individual appellants in lieu of termination notice. 4. Aggrieved by these orders of termination, these appellants filed writ petitions seeking Mandanw to quash the termination notice and for a direction to Respondent No. 3 to absorb them as its 1, 1982 with of, 15 contending up of EGB, they were transferred from Respondent No. 1 to Respondent No. 3 and they were absorbed therein as its regular employees with all service benefits and therefore, the termination 20 orders are of no consequence. Along with the writ petitions they filed W.M.P. Nos.
Along with the writ petitions they filed W.M.P. Nos. 7173 to 7184 of 1986 for interim order and interim order was passed to continue the status quo and thereafter, the interim order was made absolute. 5. It is stated at para 7 of the counter of Respondent No. 3 that the business carried on by EGB proposed closed might perhaps be container by a Financial Institution like IDBI and IDBI expressed its willingness to take over the business of the EGB without any commitment on its part to take over the IIC employees working with such EGB. Though IIC requested 35 IDBI to explore the possibility of absorbing the EGB staff m IDBI or in the Technical Consultancy Organisations (TCOs), IDBI made it clear in the discussions held between the IDBI officials and the IIC officials that it would make no commitment in this regard though, however, as an interim measure, IDBI had no objection for utilising the services of the EGB staff by various TCOs. There was neither a transfer by IIC nor an absorption or take over of the appellants by IDBI or any of its organisations as alleged by the appellants. It is specifically stated that Respondent No. 3 played only a co-rdinating role in regard to continuation of business of EGB by and also in exploring the possibility of giving gainful employment to the employees of EGB including the appellants by such TCOs. But the fact remains, they continued to remain as the employees of IIC and IDBI or Respondent No. 2 either absorbed or recognised the appellants as their respective employees. 6. The question for consideration is, whether by length of service the appellants are entitled for absorption on the roles of Respondent No. 3 herein ? 7. Respondent No. 4 being the branch of Respondent No. 1 (UC) both belonged to one and the same entity. But, ITCOT and IDBI are different and distinct entities. A transfer of service of personnel from one such entity to another is not legally permissible. Transfer, if at all, can be effected only from one departmentl unit/branch to i another of the same entity and not to any other different and distinct entity, because it requires the jural relationship of master and servant. 8. It is an undisputed fact that the office of EGB at Madras had been wound up with effect from December 31, 1981.
8. It is an undisputed fact that the office of EGB at Madras had been wound up with effect from December 31, 1981. As a consequence of closure naturally results in disbandment of all posts therein, the present appellants were not immediately terminated. Since they sought accommodation, purely on humanitarian measure, by requesting IDBI to utilise their services by it or any of its constituents as an interim measure on the basic pay they were drawing earlier. IDBI agreed to such interim measure by placing their services at the disposal of ITCOT and agreed to reimburse the salary paid to them. But, this does not flow from any order by IDBI. 9. Order dated May 10, 1977 reads as temporary and subject to terms and conditions set out in the endorsed offer of appointment. That 9F was issued by the Finance and Accounts Officer of Respondent No. 1. 10. It is also observed in the order of the learned single Judge that no provident fund contribution had been made by the present petitioners, after the winding up of EGB and the contribution made till then was not also transferred to IDBI or ITCOT. Such aspect of the matter is indicative of the fact that the present appellants were not at all absorbed by transfer of services in IDBI and they were, after all, provided with some employment opportunity, as an interim measure on humanitarian considerations. 11. In the grounds of appeal, the appellant in W. A. No. 1075 of 1993 has urged that there are as many as six branch offices for Respondent No. 1. Out of the six, the other five branches situated at various places such as Allahabad, Bhopal, Chandigarh, Calcutta and Madras were closed as per Memorandum dated December 23, 1981. As per the Memorandum, Respondent No. 3 absorbed the employees into service and only in Madras branch the discrimination has been conimitted by lDBI. Respondent No. 3 filed an additional affidavit stating that none of the employees of other offices of EGB at Allahabad, Bhopal, Chandigarh and Calcutta run by Respondent No. 1 were absorbed by Respondent No. 3. It is further submitted that at no was given by appellant that all the 35 Respondent No. 1 IDBI. 12. The learned counsel appearing for the appellants submitted that there is no order of 40 taking over the staff by Respondent No. 3.
It is further submitted that at no was given by appellant that all the 35 Respondent No. 1 IDBI. 12. The learned counsel appearing for the appellants submitted that there is no order of 40 taking over the staff by Respondent No. 3. but that fact can be construed on conduct. There is no merit in the contention. In the absence of taking over the staff by Respondent No. 3, any concession on humanitarian grounds should not be taken as indicative of absorption in the establishment of Respondent No. 3. The nature of the appointment order itself speaks that the appointment is purely temporary. In Union of India v. Moti Lal the Apex Court has taken the view, temporary employees completing requisite length of service, not so fact entitled to regularisation. Where the term employment provided that it is purely temporary, there is no right conferred on the employee to seek absorption. In the instant case, Respondent No. 3 is a different entity. In the absence of any written agreement or contract to take over the staff, that too, when the nature of appointment being on temporary basis, it is too much to comprehend that the appellants are entitled for absorption. We see no merit in these appeals and they are liable to be dismissed. Accordingly, the writ appeals are dismissed without costs.