1.      Heard Mr. Ashish Dolakia, Sr. Advocate, assisted by Mr. Avijeet Bhujabal, Advocate, for the complainants, Mr. Aditya Narain, Advocate, for the opposite parties.

It may be mentioned the Bharti Telesonic Limited was merged with Bharti Telenet Limited on 10.09.2003. Bharti Telenet Limited was merged with Bharti Tele-Ventures Limited on 21.05.2005, whose name was changed as Bharti Airtel Limited on 24.04.2006. Bharti Enterprises is a group of company of Bharti Airtel Limited. The name of Bharti Tele-Ventures Employees Welfare Trust has been changed as Bharti Airtel Employees Welfare Trust. 

2.      Brigadier Vijay Raheja has filed CC/76/2006, for directing the opposite parties to (i) allot 39637 Employee Stock Option Plans after taking its price; (ii) pay Rs.150000/-, as compensation for mental agony and harassment; (iii) pay Rs.50000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.

3.      Brigadier Vijay Raheja stated that he was a commissioned officer in Indian Army and had distinguished and meritorious service record. The complainant took premature retirement from the post of Brigadier in Indian Army and was employed in Bharti Airtel Group of Companies (the company) and was posted as Chief Operating Officer, Indore Region, Madhya Pradesh as a part of Bharti Telenet Limited from 01.08.1997 to 30.09.2000. Thereafter, he was transferred to Bharti Telesonic Limited as Vice President (Projects) and served there from 01.10.2000 till his superannuation on 30.06.2003. The company issued “Employees Stock Option Plan” (ESOP) and created Bharti Airtel Employees Welfare Trust (opposite party-1). In consideration of meritorious performance, length of service and noteworthy contributions of the complainant, the company granted 56623 ESOPs amounting to Rs.2548018/- on a discounted price of 50% to him on 01.10.2000. The company vide letter dated 05.03.2001, intimated the complainant the date of vesting as 10% ESOPs on 01.10.2001, 20% ESOPs on 01.10.2002, 30% ESOPs on 01.10.2003 and 40% ESOPs on 01.10.2004 and on exercise of option, the complainant had to pay its 50% value of ESOPs on being communicated by the company to him. The complainant had to give ‘option of acceptance’ on or after the applicable vesting dates but before expiry of seven years from the date of grant of options. The complainant, vide letter dated 05.03.2001, gave his ‘option of acceptance’ to the company. The company, vide letter dated 25.09.2002, revised vesting schedule as 15% ESOPs on 01.04.2002, 15% ESOPs on 01.10.2002, 30% ESOPs on 01.10.2003 and 40% ESOPs on 01.10.2004. The revised schedule of vesting was confirmed again vide letter dated 25.09.2002 and it has been clarified that option can be exercised at any time after the vesting date but before 01.04.2008. The complainant was informed about value of 30% ESOPs, which was paid by him through cheque No.107950 dated 18.07.2003. Date of vesting of next 30% ESOPs was 01.10.2003 and 40% ESOPs was 01.10.2004. Although the complainant had already exercised his option but he was not asked to deposit its value. The complainant wrote letters dated 18.02.2005, 21.04.2005 and 02.06.2005 to the company that he may be permitted to deposit value of 70% ESOPs but the company did not respond. The complainant made online complaint to Consumer Online Resource & Empowerment Centre, Noida, who also gave letters dated 28.11.2005, 15.12.2005 and 03.01.2006 to the company in respect of the grievances of the complainant but the company did not respond. The complainant then gave a legal notice to the company on 18.05.2006. In spite of service of the notice, the company did not respond, then this complaint was filed on 15.07.2006.     

4.      Col. Ajay K. Dewan (since deceased and now represented by his daughter Ms. Gauri Dewan) filed CC/25/2008, for directing the opposite parties to (i) allot 67439 Employee Stock Option Plans after taking its price; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.50000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.

5.      Col. Ajay K. Dewan stated that he was a commissioned officer in Indian Army and had distinguished and meritorious service record. The complainant took premature retirement from the post of Colonel in Indian Army in 1989. After servicing various corporate houses, he was employed in Bharti Enterprises (the company) and posted on the post of Director (Operation), Bharti Duraline Limited from 01.01.1997. Thereafter, he was transferred to Bharti Telenet Limited, M.P. Projects as Director (Operations) from September, 1998. In record time, the complainant achieved basic telephone services in 27 cities in M.P. during his posting there. The company appointed him as Director (Operations) on 25.08.2000 in Bangalore and Chief Executive Officer (Infrastructure Development) on 04.09.2000. He was superannuated from service on 28.02.2003. Later on, the company retained him as an Advisor (Infrastructure Development) till March, 2004. The company issued “Employees Stock Option Plan” (ESOP) and created Bharti Airtel Employees Welfare Trust (opposite party-1). In consideration of meritorious performance, length of service and noteworthy contributions of the complainant, the company granted 96343 ESOPs amounting to Rs.4335450/- on a discounted price of 50% to him on 01.10.2000. The company vide letter dated 24.04.2001, intimated the complainant the date of vesting as 10% ESOPs on 01.10.2001, 20% ESOPs on 01.10.2002, 30% ESOPs on 01.10.2003 and 40% ESOPs on 01.10.2004 and on exercise of option, the complainant had to pay its 50% value of ESOPs on being communicated by the company to him. The complainant had to give ‘option of acceptance’ on or after the applicable vesting dates but before expiry of seven years from the date of grant of options. The company, vide letter dated 01.04.2002, revised vesting schedule as 15% ESOPs on 01.04.2002, 15% ESOPs on 01.10.2002, 30% ESOPs on 01.10.2003 and 40% ESOPs on 01.10.2004. The revised schedule of vesting was confirmed again vide letter dated 25.09.2002 and it has been clarified that option can be exercised at any time after the vesting date but before 01.04.2008. The complainant, vide letter dated 24.03.2003, gave his ‘option of acceptance’ to the company. The complainant was informed about value of 30% ESOPs, which was paid by the complainant. Date of vesting of next 30% ESOPs was 01.10.2003 and 40% ESOPs was 01.10.2004. The complainant was verbally given understanding that after superannuation from service, he would not be entitled for balance ESOPs. Later on the complainant came to know that he was entitled for ESOPs till 01.04.2008. The complainant, therefore, gave option of acceptance of balance 70% of ESOPs on 17.01.2008 in requisite proforma and also tendered its price through cheque No.128302 dated 17.01.2008. The company, vide letter dated 04.02.2008 informed that after superannuation from service, option cannot be given and his cheque was returned. The complainant then gave a notice to the company on 08.02.2008. The company, vide letter dated 21.02.2008 replied in same terms that after superannuation from service, option cannot be given, then this complaint was filed on 05.03.2008.  

6.      The company separate written reply in both the complaints. The company did not dispute employment of Brigadier Vijay Raheja from 01.08.1997 till 30.06.2003 and allotment of 56623 ESOPs amounting to Rs.2548018/- on a discounted price of 50% to him on 01.10.2000 and accepting option for 30% of the ESOPs on 18.07.2003. The company also did not dispute employment of Colonel Aajy K. Dewan from 01.01.1997 till 28.02.2003 and allotment of 96343 ESOPs amounting to Rs.4335450/- on a discounted price of 50% to him on 01.10.2000 and accepting option for 30% of the ESOPs on 24.03.2003. The company took plea that the complainants were allotted ESOPs on a discount of 50%, under ESOPs Scheme, in accordance with the guidelines of the Securities and Exchange Board of India (SEBI). The complainants availed the ESOPs vested till the dates of their superannuation as per scheme. The ESOPs were allotted to them, being an employee of the company and the option had to be exercised after date of vesting by the employee. After superannuation they did not remain an employee of the company and therefore there were not entitled to balance 70% ESOPs, as the dates of vesting these ESOPs were subsequent to their superannuation and there was no deficiency in service on the part of the company. ESOPs Scheme pertains to ‘share’. The stages of ‘vesting’, ‘exercise of option’ and ‘payment’ were conditions precedent to the allotment of the shares. In the absence of allotment of share, it can neither termed as ‘purchase of the goods’ within the meaning of Sale of Goods Act, 1930 nor it ‘availing service’ within the meaning of the Consumer Protection Act, 1986 as such consumer complaint is not maintainable. The company raised preliminary issue that subject matter of the claim in both the complaints fall below the pecuniary limits of this Commission.       

7.      The complainants filed their Rejoinder replies, Affidavit of Evidence of Brigadier Vijay Raheja (Retd.), Colonel Ajay K. Dewan (Retd.) and documentary evidence. The company filed Affidavits of Evidence of Vijaya Sampath, Rohit Kishan Puri, Gormohina Kaur and documentary evidence. Both the parties have filed short synopsis.

8.      We have considered the argument of the counsel for the parties and examined the record. The company raised preliminary issues that the complaints are time barred and subject matter of dispute is not falling within pecuniary limits of this Commission. CC/76/2006 was filed on 15.07.2006 and CC/25/2008 was filed on 05.03.2008. Date of vesting of IIIrd option of 30% ESOPs was 01.10.2003 and IVth option of 40% ESOPs was 01.10.2004.Section 24-A of the Consumer Protection Act, 1986 provides two years limitation for filing the complaint from the date of cause of action.

As per letter dated 01.04.2002, the complainants had liberty to give option up to 01.04.2008. Although the complainants gave option but they were not communicated the decision of the Compensation Committee, as such, the complaints are not time barred. Initially, in written reply, issue of pecuniary limits of the claim was not raised. After about 18 years, it will not be proper to return the complaints for filing before State Commission. Supreme Court in Sujir Keshav Nayak Vs. Sujir Ganesh Nayak, AIR 1992 SCC 1526, held that a court of unlimited pecuniary jurisdiction can decide the suit of lessor value and in that case there will be no lack of pecuniary jurisdiction.

9.      The company raised other preliminary issue that pending allotment of ESOPs, its sale is not competed. The exercise of ‘option’ is only an ‘offer’, as such, the complainants cannot say that they had purchased the ESOPs and are ‘consumers’ nor does it give any right to the complainants to claim ESOPs as held by Supreme Court in Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, R.D. Goyal Vs. Reliance Industries (2003) 1 SCC 81, Brahm Dutt Aggarwal Vs. San Tubes (2004) 13 SCC 731 and this Commission in Sushila Agrawal Vs. I.T.C. Agrotech Ltd., II (1994) CPJ 93 (NC) and Tata Timken Vs. Consumer Protection Council, II (1995) CPJ 164. Supreme Court in Sri Gopal Jalan Vs. Calcutta Stock Exchange Association Ltd., AIR 1964 SC 250 held that ‘allotment’ means appropriation out of previously un-appropriated capital of a company of a certain number of shares to a person.

10.    The word “consumer” has been defined under Section 2(1)(d) and the word “service” has been defined under Section 2(1)(o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:-

Section-2 (1) (d).- “consumer” mean any person who,-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails such services for any commercial purpose;

Explanation.- For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning livelihood by means of self-employment.

Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

Section 2(7) of the Sale of Goods Act, 1930 defines ‘goods’ as:-

“Section 2(7).- “goods” means every kind of movable property other than actionable claims and money and includes stock and shares, growing crops, grass, and things attached to or forming part of land, which area agreed to be severed before sale or under contract of sale”.

11.    Supreme Court in Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, held that a fortiori, an application for allotment of shares cannot constitute goods. In other words, before allotment of shares whether the applicant for such shares could be called a consumer? In CIT v. Standard Vacuum Oil Co., AIR 1966 SC 1393, while defining shares, this Court observed as “A share is not a sum of money; it represents an interest measured by a sum of money and made up of diverse rights contained in the contract evidenced by the articles of association of the Company.” Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods. The issue was yet to open on 27-4-1993. There is no purchase of goods for a consideration nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Section 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act.

12.    After review of previous cases, Supreme Court in Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad, (2005) 11 SCC 314, held that moreover, the allotment in favour of the members of the company was provisional in nature which would amount to invitation to an offer and not an offer. A right to a share would fructify only when an offer made by the company is accepted. Only upon acceptance of such offer, does a binding contract come into being. A right, as is well known, fructifies only upon conclusion of a contract and not prior thereto. When a share is provisionally allotted in favour of a person as a member of the company, it becomes his personal right. Such a personal right is not heritable. By reason of a mere provisional allotment without making any payment therefor no legal right in the shares was created. It would also be of some interest to note that even initial allotment of shares cannot be transferred.           

13.    In present case, the company granted 56623 ESOPs amounting to Rs.2548018/- on a discounted price of 50% to Brigadier Vijay Raheja on 01.10.2000. The company vide letter dated 05.03.2001, intimated Brigadier Vijay Raheja the date of vesting as 10% ESOPs on 01.10.2001, 20% ESOPs on 01.10.2002, 30% ESOPs on 01.10.2003 and 40% ESOPs on 01.10.2004 and on exercise of option, he had to pay its 50% value of ESOPs on being communicated by the company to him. Brigadier Vijay Raheja had to give ‘option of acceptance’ on or after the applicable vesting dates but before expiry of seven years from the date of grant of options. The complainant, vide letter dated 05.03.2001, gave his ‘option of acceptance’ to the company. The company, vide letter dated 25.09.2002, revised vesting schedule as 15% ESOPs on 01.04.2002, 15% ESOPs on 01.10.2002, 30% ESOPs on 01.10.2003 and 40% ESOPs on 01.10.2004. The complainant was informed about value of 30% ESOPs, which was paid by him through cheque No.107950 dated 18.07.2003. Date of vesting of next 30% ESOPs was 01.10.2003 and 40% ESOPs was 01.10.2004. Brigadier Vijay Raheja wrote letters dated 18.02.2005, 21.04.2005 and 02.06.2005 to the company to permit to deposit value of 70% ESOPs but the company did not respond.

           The company granted 96343 ESOPs of Rs.4335450/- on a discounted price of 50% to Colonel Ajay K. Dewan on 01.10.2000. The company vide letter dated 24.04.2001, intimated Colonel Ajay K. Dewan the date of vesting as 10% ESOPs on 01.10.2001, 20% ESOPs on 01.10.2002, 30% ESOPs on 01.10.2003 and 40% ESOPs on 01.10.2004 and on exercise of option, he had to pay its 50% value of ESOPs on being communicated by the company to him. Colonel Ajay K. Dewan had to give ‘option of acceptance’ on or after the applicable vesting dates but before expiry of seven years from the date of grant of options. The company, vide letter dated 01.04.2002, revised vesting schedule as 15% ESOPs on 01.04.2002, 15% ESOPs on 01.10.2002, 30% ESOPs on 01.10.2003 and 40% ESOPs on 01.10.2004. The revised schedule of vesting was confirmed again vide letter dated 25.09.2002 and it has been clarified that option can be exercised at any time after the vesting date but before 01.04.2008. Colonel Ajay K. Dewan, vide letter dated 24.03.2003, gave his ‘option of acceptance’ to the company. He was informed about value of 30% ESOPs, which was paid by him. Date of vesting of next 30% ESOPs was 01.10.2003 and 40% ESOPs was 01.10.2004. Colonel Ajay K. Dewan gave option of acceptance of balance 70% of ESOPs on 17.01.2008 in requisite proforma and also tendered its price through cheque No.128302 dated 17.01.2008.

          Therefore, ESOPs were allotted on 01.10.2000. The dates of vesting as mentioned in letter dated 25.09.2002, is the ‘offer’ of ESOPs by the company and exercise of ‘option of acceptance’ amounts to acceptance of ‘offer’ with promise to pay purchase price. As such for the purposes of the Consumer Protection Act, 1986, the sale is completed and the complainants are ‘consumers’. 

14.    Relying upon clause-8(a) of Bharti Tele-Ventures Employees’ Stock Option Scheme-I, the ‘option of acceptance’ of the complainants were denied as the vesting dates 30% ESOPs was 01.10.2003 and 40% ESOPs was 01.10.2004) and the dates of superannuation of Brigadier Vijay Raheja was 30.06.2003 and Colonel Ajay K. Dewan was 28.02.2003, i.e. prior to date of vesting. Clause-8(a) reads as:-

“Clause-8. Exit Clauses.- (a) Treatment of unvested options:- The right of an employee to have options vested in him or her under this Scheme is contingent upon the employee continuing in services of the Company. If an employee separates from the services of the company for any reason excluding that of death or permanent incapacity, all unvested options outstanding on the date of separation of the employee will lapse on the said date of separation.”

15.    Bharti Tele-Ventures Employees’ Stock Option Scheme-I was framed under the direction of Securities and Exchange Board of India (SEBI), who also issued a detail Guidelines vide PR 135/99 dated 18.06.1999, which governed all the matters. Clause-5.3 of the Guidelines, directs the Compensation Committee to formulate the detailed terms and conditions of the ESOS including

(a)     The quantum of option to be granted under an ESOS per employee and in aggregate;

(b)     The conditions under which option vested in employees may lapse in case of termination of employment for misconduct;

(c)     The exercise period within which the employee should exercise the option and that option would lapse on failure to exercise the option within the exercise period;

(d)     The specific time period within which the employee shall exercise the vested options in the event of termination or resignation of an employee;

(e)     The right of an employee to exercise all the options vested in him at one time or at various points of time within the exercise period;

(f)      …….

(g)     The grant, vest and exercise of option in case of employees who are on long leave; and

(h) The procedure for cashless exercise of options.

16.    Clause-1 “Objectives” states that the Bharti Tele-Ventures Employees’ Stock Option Scheme-I is designed to retain, motivate and attract employees who are contributing/will contribute to the growth and long-term success of the company. Grant of options under this Scheme will reward demonstrated performance and capability by employees and foster an increased alignment with the operational culture. The scheme is also aimed at nurturing a climate of greater performance reward for tangible contributions.

          Under Clause-5 of the scheme the Compensation Committee has to determine the quantum of options to be offered to eligible employee, after considering the recommendation of Chief Executive Officer of the relevant operating company. Clause-5(b) provides that number of options offered to eligible individual will be based on performance as well as such other factors as may be considered relevant by the Compensation Committee.

17.    Supreme Court in Vishal Tiwari (Adani Group Investigation) v. Union of India, (2024) 4 SCC 115, held that SEBI was established as India's principal capital markets regulator with the aim to protect the interest of investors in securities and promote the development and regulation of the securities market in India. SEBI is empowered to regulate the securities market in India by the SEBI Act, 1992, SCRA and the Depositories Act, 1996. SEBI's powers to regulate the securities market are wide and include delegated legislative, administrative, and adjudicatory powers to enforce SEBI's regulations. SEBI exercises its delegated legislative power by inter alia framing regulations and appropriately amending them to keep up with the dynamic nature of the securities' market. SEBI has issued a number of regulations on various areas of security regulation which form the backbone of the framework governing the securities market in India.

The SEBI regulated all the provisions of the ESOS in the Guidelines, dated 18.06.1999. Clause-7.1 of the Guidelines specifically provides that the company shall not vary the terms of ESOS in any manner which may be detrimental to the interest of the employees. Clause-5.3 permitted the Compensation Committee to formulate the terms and conditions for (i) option vested in employees may lapse in case of termination of employment for misconduct; (ii) The specific time period within which the employee shall exercise the vested options in the event of termination or resignation of an employee; and the grant, vest and exercise of option in case of employees who are on long leave. The Compensation Committee was exercising delegated powers of the SEBI to formulate the terms and conditions for option vested in employees may lapse after allotment of ESOPs in case of termination of employment for misconduct. Clause-8(e) permits to exercise option (whether vested or unvested) in case of early superannuation. Right of an employee for option unvested cannot lapse after allotment of ESOPs on attaining the date of ‘superannuation’. Constitution Bench of Supreme Court in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, held that the characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must specify the source of the rule and regulation making authority. To illustrate, rules are always framed in exercise of the specific power conferred by the statute to make rules. Similarly, regulations are framed in exercise of specific power conferred by the statute to make regulations. The essence of law is that it is made by the law-makers in exercise of specific authority. The vires of law is capable of being challenged if the power is absent or has been exceeded by the authority making rules or regulations.

18.    The object of ESOS is to reward demonstrated performance and capability by employees and foster an increased alignment with the operational culture. The number of options offered is based on performance as well as such other factors as may be considered relevant by the Compensation Committee. Thus at the time of allotment of ESOPs, the date of superannuation of an employee was very much before the Compensation Committee. If date of superannuation was relevant consideration then the ESOPs, whose dates of vesting are falling after superannuation, might not be allotted as the date of superannuation is not an unforeseen circumstance.       

19.    The SEBI framed Security and Exchange Board of India (Share Based Employee Benefits and Sweat Equity) Regulations, 2021 and Regulation-9 (6) provides that in the event of resignation or termination of an employee, all the options, SAR or any other benefit which are granted and yet not vested as on that day, shall expire:

Provided that an employee shall subject to terms and conditions formulated by the compensation  committee under sub-regulation (3) of regulation 5 of these regulations, be entitled to retain all the vested options, SAR or any other benefit covered by these regulations.

Explanation.- The cessation of employment due to retirement or superannuation shall not be covered by this sub-regulation, and such options, SAR or any other benefits granted to an employee would continue to vest in accordance with respective vesting schedules even after retirement or superannuation in accordance with the company’s policies and applicable law.

20.    Supreme Court in Central Bank of India v. Workmen, AIR 1960 SC 12 and CIT v. Podar Cement (P) Ltd., (1997) 5 SCC 482 have accepted the text in Justice G.P. Singh's Principles of Statutory Interpretation (Sixth Edn., 1996) under the heading “Declaratory Statutes”, the learned author has summed up as follows:

“Declaratory statutes.—The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court:

‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word “declared” as well as the word “enacted”.’

But the use of the words ‘it is declared’ is not conclusive that the Act is declaratory for these words may, at times, be used to introduce new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain’ an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant’ is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the Constitution came into force, the amending Act also will be part of the existing law.”

21.    In view of aforesaid discussions, it is held that clause-8(a) of the Bharti Tele-Ventures Employees’ Stock Option Scheme-I, which provides the right of an employee to have options vested in him or her under this Scheme is contingent upon the employee continuing in services of the company does not affect the right of the employee attaining age of superannuation, for allotted ESOPs, whose date of vesting is subsequent to the date of his superannuation.

ORDER

In view of aforesaid discussions, CC/76/2006 and CC/25/2008 are allowed with cost of Rs.one lac payable to each of the complainants. The opposite parties are directed to communicate the amount of 70% balance ESPOs to the complainants as per terms and conditions of the allotment within a period of one month from the date of the judgment. On communication of the amount to be deposited, the complainants will deposit it within one month from the date of communication. On deposit of balance amount of 70% ESOPs, it will be released to them, without any further delay.