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vikram singh (advocate)     09 February 2009

pls help

pls help

can any one sent me the judgments of the below mentioned citations pls.

                        (1)      Indian oxygen employees union

                                                    vs

                                             union of india

                                           2003(97)FLR 100.

 

              ( 2)  on transfer of an establishment no consent of the workmen is necessary.

                                  Management methu beard sell ltd.

                                                    vs

                                  workmen of methu beard sell ltd

                                   2006(2)scc 488.

 

thanks in advance.

 



Learning

 1 Replies

PALNITKAR V.V. (Lawyer)     09 February 2009

I am giving one citation. I believe it is same. Please check the names etc of other citation.




              

                  2002 INDLAW MAD 778

                  [MADRAS HIGH COURT]


                        Indian Oxygen Employees' Union and Another

                        v

                        Union of India and Others




                  V KANAGARAJ


                  28 Oct 2002


                  BENCH

                  V KANAGARAJ


                  COMPARATIVE CITATIONS

                  2003 (2) LLJ 222, 2002 INDLAW MAD 778


                  CASES REFERRED TO

                  Jawaharlal Nehru University v Dr. K. S. Jawatkar and Others

                  1989 Indlaw SC 719

                  Manager, Messrs Pyarchand Kesarimal Ponwal Bidi Factory v

                  Omkar Laxman Thange and Others 1968 Indlaw SC 416


                  ACTS REFERRED

                  Industrial Disputes Act, 1947[s. 9A, s. 25FF, s. 25N]




                  CASE NO

                  W.P. No. 17633/1998 & W.M.P. Nos. 26694/1998 & 16863/1999




                        KEYWORDS

                        Labour & Industrial Law, Tribunal, Mandamus, University,

                        Constitutional Validity of a Provision


 


                  LAWYERS

                  N. G. R. Prasad, S. Selvanandam, Ravi, Karthick




                  .JUDGMENT TEXT


                  The Judgment was delivered by : V KANAGARAJ


                  The writ petition praying to issue a writ of declaration that

                  Section 25-FF of the Industrial Disputes Act, 1947

                  (hereinafter referred to as "the Act"), is unconstitutional to

                  the extent it does not require the consent of a workman for

                  transfer of the services on the transfer of an undertaking and

                  consequently direct the second respondent to continue the

                  second petitioner in service from October 1, 1998 and pay him

                  all the wages and other dues as before October 1, 1998, or in

                  the alternative issue a writ of declaration that the sale by

                  the second respondent to the third respondent, vide the second

                  respondent's notice No. PD/ID/002, dated September 30, 1998,

                  does not constitute a transfer of undertaking as per the

                  proviso to Section 25-FF of the Act and consequently direct

                  the second respondent to continue the second petitioner in its

                  service in the same manner as before October 1, 1998, without

                  any interruption and pay all his arrears and wages and other

                  benefits.


                  In the affidavit filed in support of the writ petition, the

                  petitioners would submit that the second respondent is a

                  public limited company which has branches and factories all

                  over India with its head office at Calcutta; that in the year

                  1991, the company sold the factory situated at Calcutta to

                  Esaab India Limited; that the company transferred all the

                  workmen in the factory and the employees doing the work of the

                  medical equipment and welding divisions in its administrative

                  offices by invoking Section 25-FF of the Act; that this was

                  objected to by the petitioner-union and that the said

                  objection was accepted as an interim injunction by this Court

                  on June 27, 1991, and the same was made absolute on October

                  25, 1991, in O.A. No. 483 of 1991 in C.S. No. 741 of 1991.


                  The petitioners would further submit that after 1991, the

                  business of trading in medical equipment was thereafter

                  handled by the existing employees of the second respondent who

                  were engaged in its other activities of manufacture and

                  trading of gas and ancillary business as well; that the

                  employees are transferred from one post to another anywhere in

                  the establishment and there is a common seniority list

                  maintained for all the sections; that the second petitioner

                  joined Indian Oxygen Limited on November 8, 1965, as

                  clerk-cum-typist at the Trichy sales depot; that he has put in

                  33 years of blemish less service working in various

                  departments of the second respondent; that the second

                  respondent is maintaining a common attendance register in the

                  time office in which he has signed up to October 7, 1998; that

                  the order of appointment does not contain the name of a

                  particular department to which he was appointed meaning

                  thereby his service could be utilised in all the departments

                  of the second respondent and that the employees working in the

                  Ohmeda Division were all drawn from other departments of the

                  second respondent on a rotation basis.


                  The petitioner would further submit that all of a sudden, the

                  second respondent has published a letter Ref. PD/ID/002, dated

                  September 30, 1998, stating that Ohmeda Division has been sold

                  to one DATEX Ohmeda India Pvt. Ltd. and the employees who

                  happened to be working in the said division are transferred to

                  the said new employer; that while effecting the transfer, the

                  second respondent has neither sought consent from the affected

                  employees nor held any discussion with the union; that the

                  said transfer was effected in a most arbitrary manner; that if

                  as a result of selling a portion of the business activity to

                  DATEX, some workers had become surplus, the second respondent

                  should have resorted to Section 25-N of the Act; the action of

                  the second respondent in transferring the services of the

                  second petitioner to the third respondent in the guise of

                  transfer of undertaking under Section 25-FF of the Act is

                  patently illegal; that all the employees were paid by the

                  second respondent and that since there has been no transfer of

                  undertaking, the second respondent cannot transfer the second

                  petitioner's contract of service to the third respondent.


                  The petitioners would also submit that since the second

                  respondent is a large establishment having more than 100

                  workers, they are also entitled to the protection of Chapter

                  V-B of the Act which prohibits lay off, retrenchment and

                  closure without the prior permission of the Government that

                  since the so called sale cannot be covered by the proviso to

                  Section 25-FF of the Act, the conditions of service of workmen

                  have been changed; that the action of the second respondent in

                  this case is really covered by items 10 and 11 of the Schedule

                  IV to Section 9-A of the Act; that any change introduced

                  without such notice and negotiation and settlement thereafter

                  is illegal and void as held by several judgments of the

                  Supreme Court and this Court; that the second respondent

                  cannot refuse employment to the second petitioner in this case

                  since no notice was given to the petitioners; that since on

                  transfer of an undertaking covered by Section 25-FF of the

                  Act, the service of a workman is transferred to the new

                  employer, without his consent, it amounts to forced employment

                  and is contrary to the fundamental right of a workman under

                  Article 19(1)(g) of the Act and that consent has to be read

                  into Section 25-FF of the Act as otherwise Section itself

                  would be unconstitutional, being violative of Article 19(1)(g)

                  and Articles 21 and 23 of the Constitution of India. On such

                  averments, the petitioners would pray to the relief extracted

                  (supra).


                  In the counter-affidavit filed by the first respondent, it is

                  submitted that the petitioner has challenged the

                  constitutional validity of Section 25-FF of the Act to the

                  extent it does not require the consent of a workman for

                  transfer of his services on transfer of an undertaking; that

                  the employment of the workman engaged by the transfer of

                  ownership or management of an undertaking comes to an end and

                  it provides for the payment of compensation to the said

                  employees because of the said termination of their services

                  provided they satisfy the length of service prescribed by the

                  Section; that the introduction of Section 25-FF of the Act as

                  held by the Supreme Court that if industrial undertakings are

                  transferred the employees of such transferred undertaking

                  should be entitled to compensation unless of course the

                  continuity of service in employment is not disturbed and that

                  can happen if the transfer satisfies the three requirements of

                  the proviso; that when the legal position remains that the

                  services of the workmen on a transfer of undertaking comes to

                  an end, the fact that the transferee has opted to give

                  continuity of service on the same terms and conditions of

                  services to the workmen is only to the benefit of the workmen

                  and consequently cannot be challenged on the ground that the

                  workmen have been compelled to work with a new employer; that

                  Section 25-FF of the Act is for the limited purpose of

                  calculating the compensation payable to workman under this

                  Section; that this section has nothing to do with the

                  procedure or legality of transfer of an undertaking. On such

                  grounds the first respondent would pray that the above writ

                  petition may be dismissed with costs since Section 25-FF of

                  the Act is constitutionally and legally valid.


                  In the counter-affidavit filed by the second respondent, it is

                  submitted that since this respondent is only public limited

                  company and is not performing any public duty, a writ of

                  mandamus is not maintainable; that BOC is manufacturing

                  industrial and medical gas whereas the Ohmeda Division has

                  been trading in health care equipment; that an agreement dated

                  September 24, 1998, was entered into between the second

                  respondent whereby the Ohmeda Division has been sold off to

                  the third respondent; that the said transfer was not only in

                  India but throughout the world; that by virtue of transfer of

                  undertaking, the second respondent issued a notice dated

                  September 30, 1998, informing the employees about the transfer

                  of the entire undertaking of the Ohmeda Health Care Division

                  to the third respondent; that on and from October 7, 1998, the

                  employees working in the Ohmeda Health Care Division in

                  Chennai including the second petitioner became employees of

                  the third respondent by virtue of transfer of the undertaking;

                  that the issue regarding consent of workmen on a transfer of

                  undertaking is covered by Section 25-FF of the Act has been

                  finally settled by a Division Bench of this Court in Spencer

                  Group Aerated Water Factory Employees' Union v. Presiding

                  Officer, Industrial Tribunal 1997-I-LLJ-362; that the legal

                  position on a transfer of ownership or management of an

                  undertaking is that the employment of the workmen engaged by

                  the said undertaking comes to an end and it provides for the

                  payment of compensation to the said employees because of the

                  said termination of their services provided they satisfy the

                  length of service prescribed by the section; that such

                  termination of service of the employees by the employer on

                  transfer of undertaking does not in law amount to retrenchment

                  but the workmen concerned are entitled to compensation as if

                  the said termination was retrenchment; that this provision has

                  been made only for the purpose of calculating the amount of

                  compensation payable to such workmen; that with reference to

                  interim order in O.A. No. 483 of 1991, it was only an interim

                  order and there was no conclusive pronouncement; that though

                  interim order was initially granted by this Court, the suit

                  itself was ultimately withdrawn by the employees; that the

                  allegation that the transfer was effected in an arbitrary and

                  unilateral manner is without any basis; that there is no basis

                  to read Section 25-N of the Act in a situation arising on a

                  transfer of undertaking; that when the law permits the

                  transfer of undertaking, it is not open to the petitioner to

                  insist on the consent of the workmen for such transfer as the

                  provision to that effect would amount to imposing unreasonable

                  restriction on the rights of the employer; that when the third

                  respondent is always willing to provide employment on the same

                  terms and conditions and with continuity of service, it is not

                  open to the second petitioner to claim employment or wages

                  with this respondent and that the prayers in the writ petition

                  are factually and legally without basis and hence it ought to

                  be dismissed.


                  In the counter-affidavit filed by the third respondent, it is

                  submitted that the petitioners have not claimed any relief

                  against the third respondent in the main writ petition; when

                  no relief has been claimed against the third respondent, it is

                  not permissible for the petitioners to seek any interim order

                  against the third respondent; that there is no merit in the

                  present writ petition and the same deserves to be rejected;

                  that when transfer of an undertaking takes place and such

                  transfer provides for continued employment of the workmen of

                  the transferor in the services of the transferee on the same

                  terms and conditions and without disruption, the concerned

                  workman should offer his services without any disruption and

                  on continuous basis; that there is no question of the second

                  petitioner having an option of making a claim for employment

                  against the third respondent while pursuing his claim against

                  the second respondent for continued employment; that when the

                  petitioner had not offered his services for more than six

                  months, the third respondent was justified in proceeding on

                  the footing that the second petitioner has forfeited his claim

                  for employment and has prayed that the writ petition against

                  the third respondent should be dismissed.


                  During arguments, learned counsel appearing on behalf of the

                  petitioners, besides reiterating the facts pleaded in the writ

                  petition, would also bring out the instances such as the offer

                  of appointment, the order of confirmation and the selection as

                  a stenographer, the reports, the confirmation orders as

                  stenographer and then as a senior stenographer, personal

                  representation of the second petitioner and the first

                  petitioner-union's representation, the salary mentioned, etc.,

                  learned counsel would ultimately contend that it is a transfer

                  of only part of the undertaking and not the transfer of the

                  entire undertaking, i.e. Indian Oxygen Employees Union, citing

                  various correspondences, learned counsel would point out that

                  the second petitioner has been transferred to several

                  departments in the health care division, secondly learned

                  counsel would point out that the second respondent is washing

                  off his hands stating that the new employer is willing to take

                  over on the same terms and conditions but the third respondent

                  says that the employees' consent is not necessary and would

                  bluntly say that once you are transferred better go and work

                  there on the same terms and conditions and therefore Section

                  25-FF of the Act is relevant in this context. It could also be

                  said that in such an event, he is only entitled to

                  retrenchment compensation and cite the following judgments

                  respectively reported in (1) R.S. Madho Ram & Sons (Agencies)

                  v. Its Workmen 1964-I-LLJ-366 (SC); (2) P.K.P. Bidi Factory v.

                  O. L. Thenge,  1968 Indlaw SC 416; (3) J.N.U. v. Jawatkar, 

                  1989 Indlaw SC 719; 1989-II-LLJ 586; and (4) Voltas Volkart

                  Employees Union v. Voltas Ltd. 2000-I-LLJ-969 (Mad-DB).


                  In so far as the first judgment cited above is concerned, it

                  is held as follows 1964-I-LLJ-366 at p. 366 :




                  "The first and foremost condition for the application of

                  Section 25-FF of the Industrial Disputes Act is that if the

                  ownership or management of an undertaking is transferred from

                  the employer in relation to that undertaking to a new employer

                  what the section contemplates is that either the ownership or

                  the management of an undertaking should be transferred;

                  normally this would mean that the ownership or the management

                  of the entire undertaking should be transferred before Section

                  25-FF comes into operation. If an undertaking conducts one

                  business, it would normally be difficult to imagine that its

                  ownership or management can be partially transferred to invoke

                  the application of Section 25-FF. A business conducted by an

                  industrial undertaking would ordinarily be an integrated

                  business and though it may consist of different branches or

                  departments, they would generally be inter-related with each

                  other so as to constitute one whole business. In such a case,

                  Section 25-FF would not apply if a transfer is made in regard

                  to a department or branch of the business run by the

                  undertaking and the workmen would be entitled to contend that

                  such a partial transfer is outside the scope of Section 25-FF

                  of the Act."


                  In the second judgment cited above, it is held as follows :


                  " A contract of service being incapable of transfer

                  unilaterally a transfer of service from one employer to

                  another can only be effected by a tripartite agreement between

                  the employer, the employee and the third party, the effect of

                  which would be to terminate the original contract of service

                  and to make a new contract between the employee and the third

                  party. So long as the contract of service is not terminated, a

                  new contract is not made and the employee continues to be in

                  the employment of the employer. When an employer orders him to

                  do a certain work for another person, the employee still

                  continues to be in his employment. The employee has the right

                  to claim his wages from the employer and not from the third

                  party. Such third party-hirer may pay his wages but that is

                  because of his agreement with the employer. The hirer may also

                  exercise control and direction in the doing of the thing for

                  which he is hired or even the manner in which it is to be

                  done. But the hirer third party cannot dismiss him."*




                  In the third judgment cited above, it is held as follows at

                  1989-II-LLJ-586 :




                  "The centre of post-graduate studies at Imphal was set up as

                  an activity of Jawaharlal Nehru University. Since the centre

                  of post-graduate studies at Imphal represented an activity of

                  the Jawaharlal Nehru University, the teaching and

                  administrative staff of the Centre at Imphal must be

                  understood as employees of the Jawaharlal Nehru University.

                  The respondent, assistant professor continues to be an

                  employee of Jawaharlal Nehru University. His employment could

                  not be transferred by Jawaharlal Nehru University to the

                  Manipur University without his consent notwithstanding any

                  statutory provision to that effect, whether in the Manipur

                  University Act or elsewhere. The contract of service of the

                  Assistant Professor was a contract with the Jawaharlal Nehru

                  University and no law can convert that contract into a

                  contract between him and the Manipur University without

                  simultaneously making it, either expressly or by necessary

                  implication, subject to the Assistant Professor's consent.

                  When the Manipur University Act provides for the transfer of

                  the services of the staff working at the centre of

                  post-graduate studies, Imphal to employment in the Manipur

                  University, it must be construed as a provision enabling such

                  transfer of employment but only on the assumption that the

                  employee concerned is a consenting party to such transfer. No

                  employee can be transferred without his consent from one

                  employer to another. The consent may be express or implied."


                  In the last judgment cited above, it is held as follows :


                  " If the management chooses to vary the existing practice in

                  vogue namely, of excluding Saturdays and Sundays from the list

                  of holidays, the management is at liberty to comply with the

                  requirement under Section 9-A of the Act. The finding of the

                  Bench that the practice adopted till now had become a

                  condition of service will be restricted only to the extent

                  that the union was allowed to opt for holidays excluding

                  Saturdays and Sundays and not as regards the claim of the

                  union that their choice of holidays was binding on the

                  management."*




                  With such averments, learned counsel would seek to the relief

                  sought for in the writ petition.


                  On the other hand, learned counsel appearing on behalf of the

                  first respondent submits that the petitioners have challenged

                  the constitutional validity of Section 25-FF of the Act; that

                  on transfer of an undertaking, the employer of the workmen

                  engaged by the management or an undertaking comes to an end

                  and it only provides for payment of compensation to the

                  employees because of the termination of their services

                  provided they satisfy the length of services prescribed by

                  that Section; that even this compensation is not available by

                  the provision of law wherein the continuity of service in

                  employment is not disturbed and that can happen if the

                  transfer satisfies three requirements of the provisions; that

                  the service of a workman on a transfer of undertaking comes to

                  an end and its option of continuity of service on the same

                  terms and conditions of service is only to his benefit which

                  cannot be challenged on ground that the workmen have been

                  compelled to work with the new employer; that Section 25-FF of

                  the Act is for the limited purpose of calculating the

                  compensation payable to the workmen under this Section and

                  that this Section has nothing to do with the procedure or

                  legality of the transfer of undertaking.


                  Learned counsel appearing on behalf of the second respondent,

                  besides pointing out that it is a public limited company and

                  it is not performing any public duty, would submit that a writ

                  of mandamus is not maintainable. He would further submit that

                  the issue regarding consent of workmen on a transfer of

                  undertaking is covered by Section 25-FF of the Act and this

                  question has been finally settled in a case in Spencer Group

                  Aerated Water Factory Employees Union v. Presiding Officer,

                  Industrial Tribunal (supra); that the legal position is that

                  in such transfer, the employment of the workmen engaged by the

                  said undertaking comes to an end and it provides only for the

                  payment of compensation to the employees because of

                  termination of service provided they satisfy the length of

                  service prescribed by that Section and the same does not

                  amount to retrenchment and this provision has been made only

                  for the purpose of calculating the amount of compensation

                  payable to such workmen. On such arguments, learned counsel

                  appearing on behalf of the respondents would pray to dismiss

                  the above writ petition with costs.


                  In consideration of the facts pleaded by parties, having

                  regard to the materials placed on record and upon hearing the

                  learned counsel appearing for both, what comes to be known is

                  that the above writ petition has been filed by the petitioners

                  seeking to declare Section 25-FF of the Act unconstitutional

                  to the extent it does not require the consent of a workman for

                  transfer of the services on the transfer of an undertaking and

                  consequently direct the second respondent to continue the

                  second petitioner in service from October 1, 1998, and pay him

                  all the wages and other dues as before October 1, 1998, or in

                  the alternative issue a writ of declaration that the sale by

                  the second respondent to the third respondent, vide the second

                  respondent's notice No. PD/ID/002 dated September 30, 1998,

                  which is impugned herein does not constitute a transfer of an

                  undertaking as per proviso to Section 25-FF of the Act.


                  At the outset, it would be appropriate to mention that the

                  relief sought for in the above writ petition is rather

                  luxurious, particularly meant to serve the purpose of the

                  second or the moment. Section 25-FF of the Act has been

                  designed to serve the purpose of the employees and in fact as

                  a safety valve or a protective measure to safeguard the

                  genuine cause of workmen in case of transfer of an

                  undertaking, but the petitioner's case is that there should

                  not be any transfer of undertaking at all without any

                  tripartite settlement, thus giving such opportunity for the

                  petitioners to have the participation in all such transfer of

                  the very undertaking to the hands of some other party as it is

                  in the case of the undertaking being transferred from the

                  hands of the second respondent to the hands of the third

                  respondent.


                  But the intention of the law is different in the sense that to

                  safeguard the genuine interest of the workman, law also does

                  not want to interfere with or to obstruct the transfer of

                  undertaking which is the fundamental right guaranteed to the

                  employer or the undertaking, and therefore, in order to

                  safeguard the genuine interest of the workmen, the framers of

                  law have thought it fit to introduce Section 25-FF of the Act,

                  whereunder every workman who has been in continuous service

                  for not less than one year in that undertaking immediately

                  before such transfer shall be entitled to (i) notice; and (ii)

                  compensation in accordance with the provisions of Section

                  25-FF of the Act as if the workman had been retrenched.


                  However, the proviso to Section 25-FF of the Act would

                  contemplate that the above provision for notice and

                  compensation shall not apply in cases of change of employer by

                  reason of transfer if, (a) the service of the workman has not

                  been interrupted; (b) the terms and conditions of service

                  applicable to the workman does not alter or is less favourable

                  to the workmen; and (c) the new employer is legally liable to

                  pay compensation. It is this provision of law which according

                  to the petitioners should be declared unconstitutional to the

                  extent it does not require the consent of workmen for transfer

                  of service of an undertaking.


                  At this juncture, the appropriate judgment already decided is

                  one in Spender. Group Aerated Water Factory Employees' Union

                  v. Presiding Officer, Industrial Tribunal (supra) wherein a

                  Division Bench of this Court has held on the subject as

                  follows 1997-I-LLJ-362 at 373 :




                  "After the advent of Section 25-FF of the Industrial Disputes

                  Act there was no scope for invalidating the transfer of the

                  ownership or management of an undertaking whether by agreement

                  or by operation of law on the ground that consent of the

                  workmen had not been obtained. All that the workmen were

                  entitled to was notice and compensation, if the workman is in

                  continuous service for not less than one year and that too

                  only if the proviso to Section 25-FF was not attracted. It is

                  needless to point out that if the transfer is mala fide or

                  benami in character then the transfer itself would not only be

                  illegal, but it would have no effect in law and could be

                  ignored."*




                  The section only safeguards the interest of the workmen and

                  even according to the petitioners, no other provisions of

                  Section 25-FF of the Act is harmful to them and the only

                  grievance is that since it does not require the consent of

                  workmen for transfer, the petitioners want the section to be

                  declared unconstitutional which is meaningless. For declaring

                  non-existent clause requiring the consent of the workmen as

                  unconstitutional but instead the petitioners' prayer should be

                  for a mandamus directing inclusion of clause requiring the

                  consent of the workmen for transfer of service on the transfer

                  of an undertaking and, therefore, if at all they could only

                  pray to this extent and the very prayer to declare the

                  non-existent clause requiring the consent of the workmen

                  unconstitutional is not only meaningless but would not arise

                  at all. Needless to mention that the consequential relief of

                  directing the second respondent to continue the service as it

                  had been prior to October 1, 1998, that all the conditions

                  established cannot be granted and the above writ petition in

                  the circumstances would only become liable to be dismissed.


                  In the result,


                  (i) the writ petition is dismissed.


                  (ii) consequently, the connected W.M.P. Nos. 26694 of 1998 and

                  16863 of 1999 are also dismissed.


                  (iii) however, there shall be no order as to costs.


 


 




              

 


 


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