YESMIN RUSTUM LENTIN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was employed by the Finlay Mills Ltd. on March 7, 1970 as a Clerk. The petitioner was eon-firmed as a Junior Clerk in the Office of the Mills by letter, dated October 1, 1971. a copy of which is annexed as Ex. 'I' to the affidavit of Virendra Ambalal Inamdar. Constituted Attorney of Respondent no. 2 and sworn on February 7, 1986. The petitioner continued to be in employment till October 19, 1983 when the Management of the Textile Undertaking was taken over by the Ordinance issued by the Government of India. Subsequently, the Parliament passed the Textile Undertakings (Taking Over of Management) Act, 1983 (hereinafter referred to as the "Act") and under Section 2(d) of this Act, the expression "textile undertaking" means an undertaking specified in the second column of the First Schedule, while under Section 2(c), the expression "textile company" means a company specified in the third column of the First Schedule, as owning the undertaking specified in the corresponding entry in the second column of that Schedule. Item 2 in the First Schedule refers to the Finlay Mills as Textile Undertaking which was taken over, while the name of the owner is shown as "The Finlay Mills Ltd." having its registered office at Chartered Bank Building, Fort, Bombay, Section 3(1) of the Act prescribes that on and from the appointed day, the management of all the textile undertakings shall vest in the Central Government. The management of the Finlay Mills has been transferred by the Central Government in favour of Respondent no. 2 National Textile Corporation of India.

(2.) It is the claim of the petitioner that when she, along with other employees of the Finlay Mills, went to the Office on October 19, 1983 they were advised to go back and were informed that communication would be sent to them as to when they should report back for work. The Petitioner complains that all 35 employees working in the Office were taken back in the employment save and except the petitioner and other two employees. The Petitioner, on several occasions approached the management but did not receive any favourable response. The Petitioner further claims that in July, 1984, when she approached one Shri Sen, an Officer of the Corporation, she was told to apply for a job giving her bio-data. The petitioner obliged the Officer and thereafter received a letter that she should come over on July 16, 1984 for an interview. The petitioner did go for interview without realising the implications, but was made to wait till 6 p.m. and thereafter asked to type out several pages which the Petitioner declined. The Petitioner was informed on the next day that Respondent no. 2 cannot consider her application for appointment. Realising the illegal attitude adopted by respondent no. 2, the Petitioner approached this Court by filing this petition on June 24, 1985.

(3.) Shri Damania, learned counsel appearing on behalf of the petitioner, submitted that the Act was enacted by the Parliament to protect the interest of the workmen employed in the sick undertakings and that object is clearly set out in the preamble to the Act. The learned counsel urged that Section 13 of the Act prescribes that the Custodian may terminate any contract of employment entered into by the company in relation to its Undertaking provided the Custodian is satisfied that such contract is unduly onerous. The Learned Counsel urged that the perusal of the Act unmistakably establishes that all the employees of the Undertaking continue to remain in service and the Custodian could terminate the contract of employment provided it is found to be unduly onerous. The learned counsel urged that the employment of the Petitioner could not have been terminated, nor could Corporation decline to give work to the petitioner who was admittedly an employee of the Undertaking on the date of take-over. There is considerable merit in the submission of the learned counsel. Shri Damania urged that the petitioner being a poor employee was driven to make an application for fresh appointment because of the illegal attitude adopted by the Corporation claiming that the employment of the petitioner stood automatically terminated and because of the insistence of Shri Sen to give such an application. It was urged that the Corporation cannot take advantage of that fact and suggest that the Petitioner had accepted that her employment stood terminated. This submission of the learned counsel also deserves acceptance.