Document Fragment View

Matching Fragments

12. Per contra, Mr. Nitesh Bhutekar, learned Advocate appearing on behalf of respondent No. 1 Union, opposed the petition and submitted that there was no valid transfer of employment of the concerned workmen from VMPL to SPCPL. It is contended that the Notice dated 12 January 2011 clearly stipulated that transfer of employment was conditional upon individual written consent of each workman, and no alternative mode of transfer was envisaged therein. It is an admitted position that the 31 workmen represented by respondent No. 1 did not furnish such consent and, therefore, their employment continued with VMPL. In the absence of such consent, the petitioner cannot contend that the said workmen stood automatically transferred to SPCPL. It is further submitted that even the Business Transfer Agreement itself made the transfer of employees subject to their individual consent.

14. According to the respondent Union, the aforesaid admissions clearly negate the plea of lack of work raised by VMPL. It is contended that upon a comprehensive appreciation of the evidence on record, the Tribunal has rightly concluded that the termination was founded on incorrect and untenable reasons and is therefore wp17274-25-J.doc unsustainable in law. It is further urged that the transfer of the concerned workmen to the PEECO Plant was not a bona fide administrative decision but was punitive in nature, intended to penalize the workmen for refusing to consent to transfer of their employment to SPCPL. The evidence on record indicates that the said plant had been completely destroyed in a fire in 2010, that there were no functional facilities or working conditions, that there was no manufacturing activity, and that the plant was not operational at the relevant time. It is therefore contended that such transfer was an act of victimisation and constituted an unfair labour practice.

25. When the matter is examined in light of the evidence placed on record, the stand of the petitioner does not stand supported. The respondent Union has relied upon the Notice dated 12 January 2011, which indicates that the transfer of employment was not automatic but was made subject to the individual written consent of each workman. This condition goes to the root of the matter. If the scheme of transfer itself contemplates that each wp17274-25-J.doc workman must agree before his employment can be shifted, then in absence of such consent, the transfer of employment cannot be presumed. The material on record indicates that the 31 concerned workmen did not give such consent. In such situation, it would not be legally permissible for the petitioner to contend that their employment stood transferred merely because the business was transferred. The statutory position under Section 25FF also reinforces this view. The provision does not say that employment automatically comes to an end or stands transferred upon change of ownership. On the contrary, as explained by the Supreme Court in N.T.C. (South Maharashtra) Ltd. v. Rashtriya Mill Mazdoor Sangh, (1993) 1 SCC 217 the effect of transfer depends upon the terms governing such transfer and upon fulfillment of certain conditions. Thus, where the terms require consent and such consent is absent, it would be unsafe to hold that the relationship of employment stood altered.

26. The petitioner has further attempted to draw strength from the circumstance that a large number of employees, namely 1117 workmen, accepted the transfer and joined SPCPL by executing consent letters. This fact cannot conclude the issue in favour of the petitioner. Industrial law does not operate on the principle of majority rule in matters of individual rights. Each workman has an independent status in law. The rights of a minority group do not stand extinguished merely because a majority has chosen a different course. The Tribunal was concerned with the dispute raised by the 31 workmen, and therefore their case had to be wp17274-25-J.doc examined on its own footing. If these workmen did not consent to the transfer, and if there is material to indicate that they continued to remain under the control of the petitioner establishment, then the fact that other employees shifted to SPCPL does not displace their claim. The Court must be cautious not to dilute statutory protections by applying number of workmen. The legal question is not how many accepted the transfer, but whether those who did not accept it were lawfully transferred. On the material available, such lawful transfer is not established. Therefore, the contention based on majority acceptance does not answer the case of the petitioner.