Julie (India) Marketing Pvt. Ltd. vs Madhusudan C. Sherti

B.S. Patil, J.—1. Challenge in this writ petition is to the order dated 31.03.2012 passed by the Addl. Labour Court, Hubli in the proceedings initiated under Section 33-C(2) of the Industrial Disputes Act, 1947.

Respondent herein had filed a petition seeking both leave encashment and bonus for the year 1995 to 2011 payable by his employer-M/s. Megnachem Pharmaceuticals Pvt. Ltd., Dader (East) Mumbai. It was contended by the respondent Madhusudan C. Sherti, that he was engaged as Medical Service Representative by M/s. Megnachem Pharmaceuticals Pvt. Ltd., on 08.03.1985 and served as such till he retired from service on 22.02.2011. According to him, he was entitled for leave encashment for the period from 1995 to 2011 and also to recover bonus at 20% of the total salary drawn by him every year.

The applicant claimed that he had issued a legal notice through his Advocate demanding the benefits accrued i.e., leave encashment and bonus. When M/s. Megnachem Pharmaceuticals Pvt. Ltd., did not settle the claim made by the respondent herein, petition under Section 33-C(2) of the Industrial Disputes Act, 1947 was filed. In the said proceeding, present petitioner Julie (India) Marketing Private Limited appeared and contested the claim contending inter alia that there was no company by name "Megnachem Pharmaceuticals" as asserted by the applicant. It was urged before the Labour Court that applicant-Madhusudan, on attaining the age of 58 years during 2003 had retired; he was re-employed on fresh terms to render professional service as Medical Sales Representative and therefore his claim that he had retired only on 22.02.2011 was baseless. They further contended that respondent-Madhusudan was relieved from his service on 22.02.2011 at his own request as desired by him and at that time he was paid all the legal dues as per the letter dated 03.06.2011. Writ petitioner also contended that the applicant indeed availed more leave than he was entitled to, and therefore, he was not entitled for any leave encashment.

In support of his case respondent herein/Madhusudan examined himself as AW1 and produced and marked Exs. A1 to A11. Respondent therein/Megnachem Pharmaceuticals Pvt. Ltd., got examined its Manager one Sri Rajiv as RW1 and produced and marked Exs. R1 to R36 and closed the evidence. The Labour Court raised the points for consideration as under:

"1. Whether the applicant is entitled to recover the leave encashment and bonus from the respondent?

What order?"

The Labour Court found that the writ petitioner Julie (India) Marketing Private Limited had taken over M/s. Megnachem Pharmaceuticals Private Limited Company as per the agreement dated 28.07.2006 and its assets and liabilities were also taken over including the entire administrative staff with continuity in service including any liability relating to staff w.e.f. 01.08.2006 and therefore, it was clear that the employees working under the erstwhile Company were entitled to their continuity of service and other benefits. Having said so, the Labour Court has proceeded to hold that as the burden was on the Company to prove that the applicant had no leave at his credit and as the applicant/employee did not have any documents pertaining to his service and could not file any statement of calculation of leave encashment, the statement of leave encashment produced by the applicant/employee was required to be accepted. The Labour Court proceeded to allow the application holding that applicant/employee was entitled to get leave encashment from 1995 to 2010 as per the statement submitted by him and he was also entitled to get bonus at 8.33% on the salary mentioned in statement No. 1 dated 15.02.2012 for the period from 1995 to 2010 from the respondent.

Respondent as arrayed before the Labour Court is ''The Director, Megnachem Pharmaceuticals, Sharda Cinema Building, 1st floor, No. 172, MMGS Marg, Dadar (Eest) Mumbai-400 014''. Therefore, the order now passed by the Labour Court binds only the Megnachem Pharmaceuticals. But, very strangely the matter has been contested before the Labour Court by the present petitioner Julie (India) Marketing Private Limited on merits. Neither the writ petitioner has chosen to implead itself as party before the Labour Court nor the applicant/employee thought it fit to implead the writ petitioner as a Company which had allegedly succeeded to the assets and liabilities of Megnachem Pharmaceuticals as asserted by the applicant himself.

The contention of the learned counsel for the petitioner is that petitioner Company was not impleaded before the Labour Court; it has not taken over the entire assets of the erstwhile Meganachem Pharmaceuticals; it has only taken over the trade mark pertaining to the pharmaceuticals run by the Megnachem Pharmaceuticals, and therefore, petitioner is not liable to pay the dues pertaining to leave encashment claim right from the year 1995 till 2010 and also the bonus.

The contention of the learned counsel for the respondent-employee is that the writ petition is not maintainable by Julie (India) Marketing Private Limited, as it was not a party before the Court below and the order has been passed only against Megnachem Pharmaceuticals.

This contention of the respondent deserves to be accepted in as much as no order is passed against Julie (India) Marketing Private Limited. The order is passed only against Megnachem Pharmaceuticals. It was for the respondent/employee to proceed against his employer and he has chosen to proceed against M/s. Megnachem Pharmaceuticals Pvt. Ltd. He has not impleaded Julie (India) Marketing Private Limited as one of the party respondents. Therefore, the order passed can only be enforced against Megnachem Pharmaceuticals and it cannot be enforced against Julie (India) Marketing Private Limited. Megnachem Pharmaceuticals Pvt. Ltd., has not challenged the order.

Hence, it is unnecessary to go into the merits of the matter as regards the legality and correctness of the order. This writ petition, therefore, is disposed of making it clear that the order passed binds only Megnachem Pharmaceuticals and not Julie (India) Marketing Private Limited, and therefore, the writ petition filed by the Julie (India) Marketing Private Limited is not maintainable.

Accordingly, writ petition is disposed of.