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Judgment
M.S. Shah, J.—The petitioner was initially employed by the Central Fisheries Corporation Ltd., Howrah (hereinafter referred to as the Fisheries Corporation) on July 3, 1967. The post held by the petitioner came to be upgraded to that of Inspector on June 1, 1969, It appears that on March 25, 1982 the Fisheries Corporation sent notice to the petitioner u/s 25FFA of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D.Act) expressing the intention of the management of the Fisheries Corporation to close down the undertaking with effect from May 31, 1982. On May 31, 1982 the Fisheries Corporation sent order of termination dated May31, 1982 informing the petitioner that the services of the petitioner stood terminated with effect from May 31, 1982. Alongwith the said order of termination, the Fisheries Corporation sent a Demand Draft for Rs. 27,031.05 Ps. with the break-up mentioned below:
(a) Salary for the month of May 1982 (upto May 31,1982) Rs. 1,281.66
(b) One month''s salary in lieu of notice Rs. 1,324.40
(c) Salary, if any that may become payable in lieu of any earned leave that may be standing to petitioner''s credit bu tnot enjoyed by him Rs. 6,525.00
(d) Compensation pay able as per Section 25-FFF of the Industrial Disputes Act, 1947 Rs. 9,933.00
(e) Any other payment under the Rules of the Company/Statute Rs. 8, 156.25
Total Rs. 27,220.31
Out of the aforesaid amount, a total amount of Rs. 189.28 ps. was deducted towards the various deductions/recoveries mentioned in annexure to the termination order dated May 31, 1982 which is annexed to the petition at Annexure A.
According to the petitioner, in view of the aforesaid notice dated March 25, 1982 the petitioner had submitted an application dated April 12, 1982 to the Indian Dairy Corporation, Bombay (hereinafter referred to as die Dairy Corporation). The Dairy Corporation offered appointment to the petitioner as Senior Assistant Grade lion certain terms and conditions vide its letter dated May 14, 1982. (Annexure B to the petition) and the petitioner was required to join the services of the Dairy Corporation as early as possible but on or before June 16, 1982. The petitioner was required to report at Bombay. It is pertinent to note that earlier the petitioner was serving as Inspector under the Fisheries Corporation at Hawrah till May 31, 1982.
It appears than on receiving a copy of the offer of appointment made by the Dairy Corporation to the petitioner vide letter dated May 14, 1982, the Managing Director, Fisheries Corporation-respondent No. l herein sent telegram dated June 2, 1982 to the Dairy Corporation mentioning that the petitioner was not entitled to join the duty in the Dairy Corporation till he refunded the terminal benefits paid to him by the Fisheries Corporation on termination of his services on May 31, 1982 and that the petitioner may be allowed to join the Dairy Corporation only on production of clearance certificate from the Fisheries Corporation.
The petitioner sent his acceptance of the offer of appointment to the Dairy Corporation, but opposed the contention of the Fisheries Corporation demanding refund of the terminal benefits. The petitioner addressed letter dated June 10, 1982 to respondent No. l pointing out that the petitioner was appointed as a senior Assistant Grade II under the Dairy Corporation which is a separate Corporation from the Fisheries Corporation that the petitioner was going to join as a Probationer under the Dairy Corporation; and that the Fisheries Corporation has no right to demand any refund of the terminal benefits paid to the petitioner upon his retrenchment from the Fisheries Corporation. However, in view of the objection raised by the Fisheries Corporation, the Dairy Corporation did not permit the petitioner to join the service and insisted upon production of the clearance certificate from the Fisheries Corporation. Nevertheless the Dairy Corporation granted extension of joining time upto August 16, 1982 vide its letter dated June 16, 1982.
It is in the background for the aforesaid facts that the petitioner approached this Court by filing the present petition under Article 226 of the Constitution, on July 21, 1982, making the following two grievances:
(1) Fisheries Department had no right or power to demand refund of terminal benefits paid to the petitioner on his retrenchment from Fisheries Department w.e.f. May 31, 1982.
(2) The petitioner was entitled to join as senior assistant Gr. II under the Dairy Corporation and the Dairy Corporation was bound to permit the petitioner to join the services notwithstanding the objection from the Fisheries Corporation consequent upon non- compliance with its demand for refund of the terminal benefits.
After issuing notice, on the returnable date, i:e., August 13, 1982, this Court passed the following orderon August 11, 1982:
"No one has appeared to show cause. Hence , the following order:
By way of ad interim relief respondent No .2 is directed to extend the time granted to the petitioner to join duty as per the appointment letter dated June 14, 1982 read with the letter dated June 16, 1982 and respondent No. 2 is further directed not to fill up the said post without the leave of the Court."
In response to the above order, respondent'' No. 2 did not appear before this Court but sent a communication dated August 17, 1982 to the Assistant Registrar of this Court pointing out that the order dated August 13, 1982 of this Court was being complied with.
On August 24, 1982 this Court again passed an order for issuance of notice to Dairy Corporation to show cause why interim relief as prayed for in para 16(b) should not be granted. The petitioner had prayed for mandatory interim orders directing the Dairy Corporation to permit the petitioner to join the duty as per the appointment order. The petitioner had also prayed for prohibitory interim order to restrain the Fisheries Corporation from demanding the refund of terminal benefits. Even on the returnable date respondent No. 2 did not appear to oppose the admission of the petition and grant of interim relief and therefore, on September 3, 1982 this Court issued Rule and granted ad interim relief in terms of para 16(b) referred to here in above. The Fisheries Corporation appeared through its Advocate and filed affidavit-in-reply dated October 8, 1982 opposing the petition. However, no attempt appears to have been made by the Fisheries Corporation to move this Court for vacating the ad interim order operating against it.
This matter was notified for final hearing on five previous occasions. To-day when the matter was called out for final hearing, it has transpired that respondents Nos.2 and 3 though served long back, have not chosen to appear before this Court. Respondent No. 1 had already entered its appearance through its learned Advocate and had filed affidavit-in-reply dated Octobers, 1982 opposing the petition.
At the time of final hearing Mr. Chari learned Advocate appearing for the petitioner contended that since the Fisheries Corporation had been closed down on May 31, 1982 and the petitioner was paid retrenchment compensation as provided by Section 25-FFF of the I.D.Act, the Dairy Corporation was not entitled to ask for the refund of the said terminal benefits. Mr. Chari further contended that the petitioner''s right to get retrenchment compensation u/s 25-FFF of the I.D.Act was not conditional upon his remaining unemployed and that his subsequent employment under the Dairy Corporation cannot adversely affect his right to retain retrenchment benefits which he had already been paid on May 31, 1982.
The Fisheries Corporation has however, contended in its affidavit-in-reply that in view of the contemplated closure a meeting was convened on January 25, 1982 under the Chairmanship of the Minister (A.RR & CS) and the Fisheries Corporation had evolved a scheme for making alternative jobs available to the employees who were to be retrenched on account of the closure of the Fisheries Corporation. It is further contended that just as Fisheries Corporation was a Government of India undertaking, there were several other undertakings of the Government of India such as Dairy Corporation, which were to absorb the employees of the Fisheries Corporation. In this connection reliance is placed on the following extract from the minutes of the said meeting:
"2. In his opening remarks, Minister (A) said that the number of employees for whom alternative jobs are to be provided are not many and therefore, it should not be too difficult for the undertakings of this ministry to absorb all of them. He also indicated that it is not necessary that all the employees should be provided with jobs at their present places of posting..."
3..... ........
The officers representing the different undertakings/organisations, thereafter indicated the scope of likely absorption of the employees of C.F.C. in their organisations as follows:
INDIAN DAIRY CORPORATION (IDC)
The representative of the Corporation indicated that they had already absorbed 4 employees. At the moment they are in a position to take 1 Jr. Account, 3 Jr. Assistants and 2 Stenos. All these posts are outside Calcutta."
Mr. A.L. Shah, learned Advocate, for the Fisheries Corporation has further contended that in view of the aforesaid minutes coupled with the fact that the basic pay of the petitioner was fixed at Rs. 580/- in the pay scale of Rs. 425-700, which the petitioner was already drawing under the Fisheries Corporation before his retrenchment go to show that the petitioner was offered employment by Dairy Corporation at the instance of the Fisheries Corporation and had the Fisheries Corporation known about the offer made by the Dairy Corporation to the petitioner on May 14, 1982. Fisheries Corporation would not have paid the terminal benefits to the petitioner.
Even at the final hearing of this petition, respondent Nos.2 and 3 have chosen not to appear. It is therefore, clear that the contention of the Fisheries Corporation that the petitioner was employed by Dairy Corporation at the instance of the Fisheries Corporation is not supported by Dairy Corporation. The minutes of the meeting held on January 25, 1982 clearly show that the posts on which the Dairy Corporation had offered employment to the employees of the Fisheries Corporation were " 1 Junior Accountant, 3 Junior Assistants and 2 Stenos". Admittedly the petitioner was not offered employment by the Dairy Corporation on any of the above posts but he was offered the post of Senior Assistant Gr. II '' In view of the chronology of dates and events it is reasonable to infer that after March 25, 1982, i.e., after the notice of the Fisheries Corporation conveying its contention of closure w.e.f. May ,31, 1982, the petitioner looked for employment elsewhere and the Dairy Corporation offered employment to the petitioner on the post of senior Assistant Grade n, expecting the petitioner to join on June 14, 1982.InthemeantimetheFish- cries Corporation had come to be closed down w.e.f. May 31, 1982 and the services of the petitioner came to be terminated w.e.f. May 31, 1982. In view of the aforesaid eloquent sequence of events and the absence of Dairy Corporation to support the contention of Fisheries Corporation, it is reasonable to presume that the petitioner''s securing employment under the Dairy Corporation was not at the instance of the Fisheries Corporation. In this view of the matter, there is not even factual foundation to support the Fisheries Corporation''s demand for refund of the terminal benefits paid to the petitioner.
Mr. Chari further submitted that the employment offered by Dairy Corporation to the petitioner was fresh employment on probation and not with continuity of service. If the payment of compensation u/s 25-FFF were to be avoided the Fisheries Corporation and the Dairy Corporation would have been required to comply with the three conditions contained under the proviso to Section 25-FF of the I.D. Act which deals with a situation where there is transfer of employees from one undertaking to another:
The proviso to Section 25-FF reads us under;
"Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if -
(a) the service of the workman has not been interrupted by such transfer;
(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and
(c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer.
Mr. Chari, therefore, submitted in view of the fact that the aforesaid conditions (a) and (c) are admittedly not fulfilled, the petitioner''s right to get and retain compensation u/s 25-FFF of the I.D. Act cannot be defeated even if the petitioner was offered employment by Dairy Corporation at the instance of the Fisheries Corporation.
There is prima facie considerable force in the aforesaid submission of Mr. Chari, but it is not necessary to examine this contention in detail as the Fisheries Corporation has failed to establish the factual foundation in support of its case. The demand of the Fisheries Corporation respondent No. l for the refund of the terminal benefits from the petitioner as contained in the letters dated June 2, 1982 at Annexure C & E is illegal and deserves to be quashed and set aside.
By the interim order of this Court the Dairy Corporation was required to permit the petitioner to join the duty as per the appointment letter already issued to the petitioners. It is, therefore, directed that the petitioner''s employment under Dairy Corporation shall not be adversely affected by any demand of the Fisheries Corporation to the petitioner.
In the result, this petition is allowed The demand of respondent No. l - Central Fisheries Corporation Ltd. for the refund of the terminal benefits given to the petitioner is hereby quashed and set aside and respondent No. 2 - Indian Dairy Corporation is hereby directed not to adversely affect the petitioner''s employment under respondent No. 2 on the basis of the aforesaid demand of the Fisheries Corporation in any manner whatsoever.
Rule is accordingly made absolute with no order as to costs.