Bharatiya Kamgar Sena vs Geoffrey Manners And Co. Ltd. Geoffrey Manners And Co. Ltd. Vs Bharatiya Kamgar Sena

The appeal arises upon an order sanctioning, u/s 391 of the Companies Act, the scheme of amalgamation between Geoffrey Manners and Co. Ltd. (GM) and John Wyeth (India) Ltd. (JWIL) with some modification. The scheme proposes to transfer a part of GM''s undertaking to JWIL. The appeal is filed by the Bharatiya Kamgar Sena which is the representative trade union of the workmen of GM and which objected to the sanction of the scheme on the ground that it purported to compulsory transfer of workmen of GM to employment in JWIL. The learned single judge accepted the submission that such compulsory transfer could not be effected and modified the scheme so as to remove therefrom the provision that provided for the compulsory transfer Instead, the learned judge ordered that the concerned employees would have an option to join JWIL, in which event, they would be protected by the relevant provisions of the scheme. Those employees who chose to remain with GM would "be entitled to all such rights and remedies as they may be entitled to in law."

During the hearing of the appeal, being intrigued by the words which we have quoted, we asked Mr. Tulzapurkar, learned counsel for the companies, whether the intention was to absorb these workmen in GM or to retrench them after and effective date. We were fairly told that, after the effective date, if would not be possible for GM to continue to employ them. It is, therefore, clear that the interest of these workmen is likely to be adversely affected by the order of sanction of the scheme. We are told that they number between 550 and 600.

There is no consideration in the order under appeal of the merits of the scheme qua the concerned workmen. We were, therefore, inclined to set aside the order under appeal and remand to the learned single judge hearing company matters the petition for sanction so that he could consider the matter afresh, taking into account the interest of the concerned workmen, after giving them an opportunity of presenting their case in the light of relevant material which would have to be disclosed by the companies.

At this stage, Mr. Tulzapurkar, on behalf of the companies, made an offer with prejudice. He said that a very large proportion of the concerned workmen were likely to be in favour of taking employment with JWIL and availing of the provisions of the scheme in that regard. He said that if 20% or more of the number of concerned workmen, voting in the manner hereafter mentioned, declined to accept employment with JWIL under the scheme, the companies would give up the scheme. He said that if, on the other hand, the requisite proportion of the concerned workmen were agreeable to go over to JWIL, GM would offer the remaining workmen substantial retrenchment benefits in a scheme to be formulated with the assistance of the court.

He submitted that the concerned workmen should be allowed to express their preference in this regard by a secret ballot to be held at a meeting presided over by a officer of the court.

Mr. Puri, learned counsel for the trade union, submits to the orders of the court.

It seems to us fair that Mr. Tulzapurkar''s offer with prejudice should be accepted. We are concerned predominantly with the welfare of the workmen. If, at a meeting presided over by an officer of the court, the concerned workmen indicate by secret ballot by the majority set out above, that they are unwilling to go over to JWIL, these proceedings shall come to an end because the scheme will not be pressed. If, on the other hand, the requisite proportion of the workmen indicate their willingness to go over to JWIL, the retrenchment benefits that the remaining workmen will receive can be worked out under the aegis of the court.

We direct that GM shall give to each of the concerned workmen a notice in writing within seven days from today which shall state that a meeting has been called by the court under the chairmanship of an officer of the court at which each of such workmen shall be entitled to indicate by secret ballot whether he desires to accept employment with JWIL under the scheme and obtain the benefits of its provisions (which shall be set out) or would prefer to remain in the employment GM, in which event, he would be. liable to be retrenched after the effective date but would be entitled to receive then such retrenchment benefits as this court shall, after hearing parties, decide. The notice shall state that the meeting shall be held at 11 a.m. on September 8, 1991, at Nayar Samaj Hall, opposite Pritam Mid Town Hotel, Dadar T.T.

GM shall furnish to the trade union a list of the workmen to whom notice as aforesaid has been issued.

The meeting shall be chaired by Mr. A. T. Shah, First Assistant Master of this court. He shall hold a secret ballot as aforestated and shall make a report to the court as to the number of the Workmen present and voting and how they have voted. He shall also indicate whether 20% or more of the workmen present and voting have voted declining employment with JWIL. The report shall be sealed in an envelope which shall be placed before the court on the adjourned date, viz., September 13, 1991.

The chairman shall not permit anyone other than the concerned workmen and such person or persons as he nominates to assist him to be present at the meeting.

The costs of and incidental to the meeting shall be borne by the companies.

Adjourned to September 13, 1991.