(2012) 246 KLR 127 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN WEDNESDAY, THE 28TH DAY OF MARCH 2012/8TH CHAITHRA 1934 WP(C).No. 27774 of 2007 (F) ------------------------------------- PETITIONER(S): ------------------------ REFINERY EMPLOYEES UNION(KRL), REG. NO.07/10/2002, KOCHI REFINERIES LIMITED AMBALAMUGAL, REPRESENTED BY ITS GENERAL SECRETARY S.K.NAZEEMUDEEN. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): ------------------------- 1. BHARATH PETROLEUM CORPORATION LIMITED, BHARATH BHAVAN, 4& 6, CURRIMBHOY ROAD BALLARD ESTATES, MUMBAI-400001 REPRESENTED BY ITS CHAIRMAN. 2. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF COMPANY AFFAIRS, NEW DELHI. R1 BY ADVS SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH R2 BY ADVS. SRI.P.PARAMESWARAN NAIR, ASST.SOLICITOR SMT.D.P.RENU, CGC, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DCS WP(C).No. 27774 of 2007 (F) APPENDIX PETITIONER(S) EXHIBITS :-
RESPONDENTS' ANNEXURE:-
/TRUE COPY/ P.A. TO JUDGE DCS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 27774 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th day of March, 2012. Head Note:- Companies Act, 1956 - Sections 391 and 394 - Benefits to its employees which they were getting before the amalgamation of the two respondent companies which was approved by the Central Government - Held that since there is no dispute of the fact that the employees of the transferor Company were enjoying the benefits before amalgamation of the Companies, therefore, the employees of the transferor company would continue to be entitled to the 59 benefits subject to any modification of any of those benefits in subsequent industrial settlements applicable. J U D G M E N T The petitioner is a union of employees of the Cochin Refineries Ltd. The Cochin Refineries Ltd., and the Bharat Petroleum Corporation Ltd., two Government companies, together filed an application before the Government of India for amalgamation of the two companies under Sections 391 and 394 of the Companies Act. Notifications were published inviting objections to the scheme of amalgamation by the Central Government. The petitioner-union filed Ext.P3 objections, wherein they narrated 59 benefits to which they were entitled to in the transferor company and claiming that those benefits should be protected by the transferee company in the scheme of amalgamation. Subsequently, the Government passed Ext.P5 order under Sections 391 and 394 of the Companies Act, whereby the scheme appended to that order was approved by the Government. The petitioner being aggrieved by alleged non- consideration of Ext.P3 objections, filed Ext.P6 petition before the Government to make it clear that even after amalgamation the employees of the transferor company would continue to receive the 59 benefits enumerated in Ext.P3. Having received no favourable reply, the petitioner has filed this writ petition seeking the following reliefs: "a. Hold that the petitioner is entitled to all the benefit enumerated in Annexure to Ext.P3 by virtue of clause 6 of the scheme of amalgamation approved and accepted by the 2nd respondent in Ext.P5. b. Issue a writ of mandamus or any other appropriate writ or order directing the 1st respondent to provide all the benefits enumerated in Annexure to Ext.P3 to its employees at Kochi Refinery, Ambalamugal. c. issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to take up and dispose of Ext.P6 forthwith." 2. No counter affidavit has been filed by either of the respondents in this writ petition. 3. Initially, I had some doubts as to whether the Central Government had powers to pass orders under Sections 391 to 394 of the Companies Act. A statement has been filed by the Additional Central Government standing counsel producing Ext.R2(a) notification issued by the Government of India under Section 620(1) of the Companies Act, wherein in respect of Government companies the word "Court" appearing in Sections 391, 392 and 394 has been substituted by the word "Central Government" in respect of Government companies. Both the Cochin Refineries Ltd., and the Bharat Petroleum Ltd., being Government companies, Ext.R2(a) notification will apply to them and therefore the Central Government has powers to deal with the applications under Sections 391 to 394 of the Companies Act in respect of the two Government companies involved in the scheme of amalgamation. 4. The contention of the 1st respondent-company before me is that all the rights of the employees of both companies are adequately protected by clause 6 of the scheme appended to Ext.P5 order under Sections 391 and 394 of the Companies Act, which reads thus: "6. TRANSFEROR COMPANY'S OFFICERS AND EMPLOYEES On the Scheme finally taking effect as aforesaid all officers and employees of the Transferor Company shall be deemed to have become the officers and employees of the Transferee Company with effect from the Effective Date and their employment by the Transferee Company shall be on the following terms and conditions: 6.1 The terms and conditions of service applicable to such officers and employees shall be not less favourable than those applicable to them respectively prior to the Effective Date. 6.2 The services of such officers and employees shall not be treated as having been broken or interrupted for the purposes of provident fund or gratuity or superannuation or other statutory requirements and for all purposes will be reckoned from the dates of their respective appointments by the Transferor Company. Upon the Scheme becoming effective, the Transferee Company shall stand substituted for the Transferor Company for all purposes whatsoever related to the administration or operation of such funds or in relation to the obligation to make contributions to the said funds in accordance with the provisions of such funds and statutes." It is pointed out that in paragraph 16 of Ext.P5, this has been duly noted. Paragraph 16 reads thus: "16. A representation was also received from Cochin Refineries Workers Association. Their main objection was that whereas it had been stated in clause 6.1 of the Scheme that terms and conditions of service applicable to employees shall not be less favourable than those applicable to them prior to the effective date, no written confirmation had been given by the BPCL management that the various benefits extended through various office orders would continue to be extended to the employees of KRL subsequent to the merger. A hearing was given to the representatives of both the employees as well as KRL and BPCL in this respect on 26.06.2006. The representative of the company informed that there are enough safeguards in the scheme to protect interest of employees of the company. It was clearly stated in para 6 of the scheme that the terms and conditions of service applicable to such officers and employees shall be not less favouorable than those applicable to them respectively prior to the effective date. As such, it did not require any separate confirmation from the company that whatever benefits these employees are getting at present will continue to be enjoyed by them even after amalgamation. After hearing the representative of the employees and the company, I am of the opinion that the safeguards in the Scheme addresses the concerns of employees expressed through the said objection and that the apprehensions of the Cochin Refineries Workers Association in this regard were unfounded." The Central Government counsel, also relying on the said two provisions, would argue that there is no scope for any grievance for the employees of the Company in view of the said clauses. 5. But the learned counsel for the petitioner submits that even now, the employees are not getting many of the benefits enumerated in Ext.P3. Insofar as the Company had not filed any pleadings before the Government, objecting to the 59 benefits enumerated in Ext.P3, I am inclined to accept the same as benefits which were being given to the employees of transferor company before amalgamation. In fact, they have not disputed the same in this writ petition also. All what is contended before me by the counsel for the 1st respondent-Company and Central Government Counsel is that all the rights of the employees have been protected by clause 6 of the scheme read with paragraph 16 of Ext.P5 order of the Central Government. That argument also would pre-suppose that they do not dispute the fact that the employees of the transferor company were enjoying the benefits enumerated in Ext.P3. Therefore, all I need to do in this writ petition is to make it clear that by virtue of Ext.P5 order and the scheme, the employees of the transferor company would continue to be entitled to the benefits enumerated in Ext.P3, subject, of course, to any modification of any of those benefits in subsequent industrial settlements applicable. Of course, if any disputes are pending in respect of any of those benefits before any statutory authority, the continued application of those benefits would be subject to adjudication orders in respect of those disputes. Making the above abundantly clear, this writ petition is disposed of. Sd/- S. Siri Jagan, Judge. Tds/ |
