Management of Dalmia Cement (Bharat) Ltd. vs State of Haryana and Others

Augustine George Masih, J.—Through this order, I propose to decide C.W.P. No. 545 of 1986 and 546 of 1986 [Management of Dalmia Cement (Bharat) Ltd., Ballabhgarh (Haryana) v. State of Haryana and Ors.] wherein the Petitioner has challenged award dated 12th April, 1985 (Annexure P-l) passed by the Industrial Tribunal, Haryana Faridabad, holding that the termination of services of Respondent No. 3-workman was neither justified nor in order and as such, he was entitled to reinstatement but without back-wages from the Respondent for the reasons given under issue No. 3.

For the sake of convenience, the facts are being taken from C.W.P. No. 545 of 1986.

In the claim statement filed on 23rd November, 1981, the workman has stated that he was employed by the Petitioner-management but his services were terminated without any prior notice, charge-sheet or enquiry and further that no compensation as per the Industrial Disputes Act, 1947 was granted to him, which would vitiate termination order being illegal, thereby entitling the workman to reinstatement with full back-wages. The stand of the Petitioner-management before the Labour Court was that there was no relationship of employer and employee between the parties. The Management did not terminate the services of the claimant. The services of the workman were terminated by M/s Telesound India Ltd., as per Certified Standing Order No. 16, applicable to the establishment on account of his continued and unauthorized absence for more than 8 days. The scheme of amalgamation of M/s Telesound India Ltd. with Dalima Cement (Bharat) Limited was sanctioned by the High Court of Delhi according to which no liability had been placed on the Petitioner-management vis-a-yis. the employee of M/s Telesound India Limited who was not the employee of the said Company on the date on which the order of the Delhi High Court sanctioning the scheme of Amalgamation was passed, on 5th November, 1980/5th December, 198Q. Another ground which was taken by the Petitioner-management was that the claim has been made by the Respondent-workman in the year 1981 i.e. after a lapse of 8 years from the date his name was removed from the rolls of establishment by M/s Telesound India Limited, Ballabhgarh, as the date of termination of the Respondent is dated 1st September, 1973. The claim, therefore, is highly belated and the reference is not maintainable. On the basis of the pleadings of the parties, following issues were framed by the Labour Court:

(1) Whether there was a relationship of employee and employer between the parties ? OPW

(2) Whether the Management was liable for the claim of the workman in view of the order of Hon''ble Delhi High Court? OPW

(3) Whether the claim was belated and if so, to what effect ? OPM

(4) Whether the termination of services of Shri Shish Ram was justified and in order ? If not, to what relief is he entitled ? OPM

(4) On the basis of the evidence adduced by the parties, the Labour Court has answered the reference in favour of the workman and against the Petitioner-management.

(5) Counsel for the Petitioner-management contends that the award dated 12th April, 1985 (Annexure P-l) passed by the Labour Court is not in accordance with law and, threfore, deserves to be set aside. He submits that there was no relationship of employee and employer between the Petitioner-management and Respondent No. 2 workman. He submits that Respondent No. 2 was never the employee of the Petitioner-management. He states that the Petitioner, on the basis of the order dated 5th November, 1980 passed by the High Court of Delhi, came into picture and as per the Scheme of Amalgamation as sanctioned by the Court became the successor of M/s Telesound India Limited. He submits that the workman was employed by Telesound India Limited and his services were terminated on 1st September, 1973 also by M/s Telesound India Limited. As per Clause (12) of the Scheme of Amalgamation the liability of the Petitioner with regard to the employees of the transferor company i.e. M/s Telesound India Limited was specified. He submits that during the proceedings before the Delhi High Court, list of 137 employees (Annexure P-4) was produced which was taken to be the employee strength on the date of approval of the scheme of amalgamation by the Delhi High Court i.e. 5th November, 1980. On this basis, he submits that as on the date of amalgamation, Respondent No. 3 was not an employee of the transferor company. The Petitioner-management company was not his employer nor was the Respondent its employee. Clause (12) of the Scheme of Amalgamation is reproduced here-in below:

All the employees of the Transferor Company on the date on which the order of the