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1. The writ petition praying to issue a writ of declaration that Section 25FF 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 01.10.98 and pay him all the wages and other dues as before 01.10.98 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 30.09.98 does not constitute a transfer of undertaking as per the proviso to Section 25FF of the Act and consequently direct the second respondent to continue the second petitioner in its service in the same manner as before 01.10.98 without any interruption and pay all his arrears and wages and other benefits.

7. 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 ohmeda division has been trading in the health care equipments; that an agreement dt.24.09.98 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 dt.30.09.98 informing the employees about the transfer of the entire undertaking of Ohmeda Health Care Division to the third respondent; that on and from 07.10.98, 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 to undertaking; that the issue regarding consent of workmen on a transfer of undertaking is covered by Section 25FF of the Act has been finally settled by a Division Bench of this Court in 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 retrenched; 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 25N 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 term 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 is ought to be dismissed.

19. However, the proviso to Section 25FF 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 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.

21. Section only safeguards the interest of the workmen and even according to the petitioners, no other provisions of Section 25FF 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 01.10.98 that all the conditions established cannot be granted and the above writ petition in the circumstances would only become liable to be dismissed.