APAR INDUSTRIES LIMITED Vs. NATWARSINH NAHARSINH SINDHA

JUDGEMENT

(1.) Since the point involved in this group of Special Civil Applications is common and since all these petitions are filed against the common Award passed by the Labour Court, Vadodara, all these petitions, filed under Article 226/227 of the Constitution of India, are decided by this common judgment.

(2.) The point which is involved in these petitions is in connection with the status of the employees, who have been transferred from one Undertaking / Company to another Company, by an Agreement, and, ultimately, the effect of cancellation of such agreement. The concerned workmen were, initially, appointed by Apar Private Limited, a Private Limited Company, incorporated under the provisions of the Companies Act, 1956. At the relevant time, they were discharging their duties in the Welding Electrodes Division of the said Company. In the year 1987, an Agreement was entered into between the said Apar Private Limited and one Lotherme Electrodes (India) Private Limited, by which an Agreement to Sell was entered into between the transferor and transferee in connection with the land and buildings belonging to Apar Private Limited to Lotherme Electrodes (India) Private Limited. Since at the relevant time, the present set of employees were working at the Welding Electrodes Division of the transferor Company, i.e. Apar Private Limited, it was agreed between the transferor and the transferee that such employees are to be continued in the employment of the transferee company and for that purpose, the transferee Company agreed to give them the benefit of past service, etc., which they were entitled to in the transferor company. So far as the Agreement to Sell, dated 18th July, 1987, is concerned, the same is produced at Annexure 'A' to the petition. The Agreement is described as "Agreement for Sale-cum-Lease of the Land and Buildings at Baroda". At the relevant time, 134 employees, who were serving in the Welding Electrodes Division of Apar Private Limited, were transferred to the Transferee Company. In the original agreement, a clause was incorporated, being Clause 9 in connection with the aforeaid 134 employees. At present, I am not going into the details about the said Clause 9. The same shall be dealt with later on. However, it is not in dispute that, by virtue of the aforesaid agreement, the aforesaid 134 employees were transferred at the disposal of Lotherme Electrodes (India) Private Limited and they were continued as such. However, difficulty arose subsequently in the year 1989, when the aforesaid Agreement of 1987 was cancelled by a separate agreement, and, at that time, the transferee Company offered Voluntary Retirement Scheme to the aforesaid employees. At that time, out of the aforesaid 134 employees, except 42 employees, with which we are concerned, rest opted for such V.R.S. offered by the Transferee Company, being Lotherme Electrodes (India) Private Limited. But, so far as the present set of employees, on whose behalf the Industrial Dispute was raised, is concerned, they did not accept the said benefit. Thereafter, on 13.1.1990, the transferee Company gave closure notice of three months, offering retrenchment compensation, and, ultimately, closed the said unit (the unit which was transferred to it) on 20th April, 1990. Subsequently, these 42 workmen also filed Recovery Applications against the transferee company, i.e. Lotherme Electrodes (India) Private Limited, invoking the provisions of Section 33C(2) of the Industrial Disputes Act, and it seems that the State also initiated prosecution against the transferee company against alleged illegal closure. It is pointed out to this Court that during the pendency of the recovery application, Apar Private Limited was also joined in the said recovery proceedings. It has been pointed out by the learned Advocates for both the sides that the said recovery proceedings are still pending. Subsequently, the workmen raised an industrial dispute against the transferor Company, who, according to the workmen, is the real employer in view of the cancellation of the said agreement and the Assistant Labour Commissioner, Vadodara, by his order dated 17th June, 1996, referred the said dispute to the Labour Court No.2, Vadodara. The dispute, which was referred, is in connection with the prayer of the workmen to the effect that they are required to be reinstated with back wages. Along with the terms of reference, a Schedule, incorporating the names of workmen, was also forwarded. The dispute was accordingly referred to the Labour Court, Vadodara, and it was subsequently numbered as Reference (LCV) No.603 of 1996 to 644 of 1996. The dispute which is referred is between Apar Private Limited and the concerned workmen. The name of the Company was described as "Apar Private Limited", as it was pointed out that, initially, it was a Private Limited Company, which, ultimately, got the status of Public Limited Company and, therefore, it was described as "Apar Industries Limited", instead of "Apar Private Limited".

(3.) Before the Labour Court, on behalf of the employees, following demand was raised :-