TaxTMI 
TaxTMI 
2008 (3) TMI 477
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....ication No. 283 of 2007 before the Bombay High Court. Pursuant to the order dated 16-3-2007 in the said application, RIL held separate meetings of equity shareholders, secured creditors (including debenture holders) and unsecured creditors of RIL on 21-4-2007. The Chairman of the said meeting submitted his report before the Bombay High Court and the RIL filed Company Petition No. 345 of 2007 before the Bombay High Court for sanctioning the same scheme of amalgamation of IPCL with RIL. The said company petition was allowed and the scheme was sanctioned by the Bombay High Court by its order dated 12-6-2007 as modified by order dated 11-7-2007. 3. Before setting out the contentions urged by the appellants, we may indicate the broad facts leading to filing of the petition for sanctioning the scheme of amalgamation. 3.1 By Resolution of the Board of Directors of IPCL and of the Board of Directors of Reliance Industries Ltd., the two companies decided for amalgamation of IPCL with RIL and for that purpose to follow the procedure prescribed by and under the provisions of sections 391 to 394 of the Companies Act, 1956 (hereinafter referred to as 'the Act'). By order dated 16-3-2007 i....
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....Creditors present in person or by proxy and voting at the Meeting, voted in favour of the Scheme. (ii) No Unsecured Creditor of the Applicant Company voted against the Scheme. (iii)The votes of 4 Unsecured Creditors having NIL claims against the Applicant company were declared invalid." [Emphasis supplied] 3.3 In light of the above report, IPCL (the transferor Company) filed Company Petition No. 93 of 2007, giving rise to the present appeal, seeking sanction of the Company Court to the scheme of amalgamation of IPCL (transferor Company) with RIL (transferee-Company). The petition was also supported by affidavit dated 18-4-2007 of the Company Secretary, IPCL stating that the petitioner-Company (IPCL) had complied with the directions given by the Company Court in Company Application No. 126 of 2007 and that the scheme was approved by requisite majority of shareholders and creditors of the Company. 3.4 When the petition came up for preliminary hearing on 23-4-2007, the learned Company Judge admitted the petition, fixed it for final hearing on 19-6-2007 and directed publication of the advertisement in two daily newspapers viz. Times of India, Ahmedabad edition and Gujarat S....
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....members who had still not dematerialized their shares (17-10-2007) and declaration of quarterly financial results of RIL post-merger with IPCL, to all stock exchanges and dissemination of information to all shareholders (18-10-2007). 5. On 24-10-2007, this appeal has been filed by IPCL Employees' Association having membership of about 2039 employees and IPCL Employees' Union having membership of about 1602 employees. The third trade union being Petro Chemicals Kamdar Union having membership of about 1296 members has not challenged the said judgment of the learned Company Judge. The total number of employees of IPCL before amalgamation was about 14,000 (as indicated in para 36.20 of the judgment under appeal). 6. OJ Appeal No. 241 of 2007 was filed by 17 equity shareholders of IPCL on the same day i.e., on 24-10-2007. That appeal has been dismissed by our judgment dated 28-12-2007. 7. Mr. Girish Patel, learned counsel with Mr. Shalin Mehta for the appellants has raised the following broad contentions :- (A)While the learned Company Judge has accepted that the workers have locus standi to appear in the proceedings under sections 391 to 394 of the Companies Act, the learne....
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....rvices by IPCL as a result of the transfer, it would be considered as deemed retrenchment under section 25FF of the Industrial Disputes Act, 1947 and the workers will be entitled to retrenchment compensation. (The judgment of the learned Company Judge deals with this issue on pages 334 to 336 - para 36.2) (C)Future Conditions of Service (C/1)The first part of clause 8 of the scheme of amalgamation simply provides for continuity of service and guarantee of terms and conditions not less favourable than those erstwhile terms and conditions which the IPCL employees had. A detailed representation dated 10-4-2007 submitted by the employees associations was not considered by IPCL nor were the workers' representatives invited for discussion, (para 36.17 - page 365 of the judgment of the learned Company Judge). (C/2)The second part of clause 8 containing the so-called clarification that the workers of IPCL shall not by virtue of the scheme be eligible for the benefits of any employment policies or other benefits which my be available to the RIL employees is clearly illegal. (para 36.5 and 36.19 pages 339 and 366 of the judgment of the learned Company Judge). The effect of clause....
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....was filed because the certified copy of the order was filed in the prescribed form with the Registrar of Companies, Gujarat State Ahmedabad on 5-9-2007. Similarly, the order of the Bombay High Court sanctioning the scheme of amalgamation in the petition filed by the transferee company- RIL was also filed with the Registrar of Companies, Maharashtra at Mumbai on 5-9-2007. Thus the scheme became effective on 5-9-2007; the appointed date being 1-4-2006. The orders were filed with the Registrar of Companies in the prescribed forms through electronic filing on 5-9-2007. Intimations were given to the stock exchanges and the RIL shares were issued to the IPCL shareholders in electronic form and to those who had not dematerialized their shares, physical share certificates were dispatched on 17-10-2007. Trading approval was also given by the stock exchange on 22-10-2007 and quarterly financial results of RIL post-merger with IPCL were also declared to all stock exchanges and disseminated to all shareholders on 18-10-2007. In this view of the matter, the appeal filed on 24-10-2007 against IPCL was not competent and otherwise also infructuous. 9. Apropos the above preliminary objection rai....
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....muneration not less favourable than those on which they are engaged or employed by the Transferor-Company. It is clarified that the employees of the Transferor-Company who become employees of the Transferee-Company by virtue of this Scheme, shall not be entitled to the employment policies and shall not be entitled to avail of any schemes and benefits that may be applicable and available to any of the employees of the Transferee-Company (including the benefits of or under any Employee Stock Option Schemes applicable to or covering all or any of the employees of the Transferee-Company), unless otherwise determined by the Transferee-Company. The Transferee-Company undertakes to continue to abide by any agreement/settlement, if any, entered into by the Transferor Company with any union/employee of the Transferor Company. (b )The existing provident fund, gratuity fund and pension and/or superannuation fund or trusts or retirement funds or benefits created by the Transferor-Company or any other special funds created or existing for the benefit of the concerned employees of the Transferor-Company (collectively referred to as the 'Funds') and the investments made out of such Funds shall....
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.... workmen were not associated in the process of negotiation of the amalgamation and were not made parties to the preparation and finalization of the terms of the amalgamation. Referring to Articles 39, 41, 42, 43, 43A and 46A of the Constitution as well as the provisions of Industrial Disputes Act regarding Joint Management Council, it is urged that such requirement should be read into the Scheme for Amalgamation. 13. The reply on behalf of the respondent is that no statutory provision is cited by the Unions nor any binding precedent referred to in support of this contention, that, either the workers should have been consulted at the time of preparation of the Scheme or during negotiations or when a decision to merge IPCL with RIL was taken. In absence of such provision, it cannot be said that the Scheme is against law. It is further submitted that even otherwise, the objections that the workers have the right to be heard at the time of the hearing of the petition need not be considered, since they have been already heard and no objection has been taken to the locus of workmen to object to the Scheme. 14. Having considered the rival submissions- 14.1 It appears that section....
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....easures and adequate safety measures and to train the employees in understanding the responsibilities of management of the undertaking and in sharing such responsibilities to the extent considered feasible, and to do such other prescribed things. Sub-section (2) of section 3B further provides that the Council shall be consulted by the employer on all matters relating to the management. 14.3 Our attention is, however, not invited to any general or special order issued by the State Government under section 3A or by the Central Government under section 3 of the Industrial Disputes Act, which authorizes appropriate Government to require the employer to constitute a Works Committee consisting of representatives of employers and workmen engaged in the establishment. If no such Joint Management Council or Works Committee was constituted for all these decades since the incorporation of IPCL, it is difficult to appreciate as to how the management of IPCL (the transferor Company) would allow thousands of workmen to participate in the decision making process. It was submitted on behalf of the respondent-Company that when 14000 workmen are represented by different unions and out of them 900....
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....elpful to Mr. Zaveri since it cannot apply to the facts of the case on hand. As stated by me earlier, the statute does not empower or authorise the employees to object amalgamation, it also does not provide that workmen must be a party to the amalgamation proceedings. It is on the basis of the extended principles of natural justice that in certain circumstances, courts have interpreted certain provisions granting locus to a class of persons who are likely to be adversely affected thereby. Again, in my view, Mr. Raval appears to be right when he submits that at the most from the observations made in Mr. P.R. Ramkrishnan's case (supra), it can be said that even the 'workmen of the Transferor company have locus to express their view in this Court when the proceedings under sections 391 and 394 are pending. He has submitted that in the instant case, that has been done. They have appeared through their Counsel and they are heard by this Court and the Transferee-Company had not taken any objection against the locus standi of the employees of the Transferor-Company. It is, however, not necessary that a meeting of the workers is a condition precedent before a scheme of amalgamation is subm....
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....is given, it would be illusory because that would take away workers' means of livelihood. What would be the prospects, position and rights (including the right to get retrenchment compensation) of the workmen who opt not to join RIL should have been specified in the scheme. Absence thereof makes the scheme unfair. 18. Mr. Nanavati for the respondent Company submitted as under :- 18.1 On the one hand, the Objectors are seeking job security and on other hand they are alleging forceful continuance out of economic and legal compulsion. The objections are baseless. Workmen can continue with the transferee company post amalgamation with their existing rights protected under the scheme. 18.2 Under the Scheme, there is no compulsion on the workers to join the new employer. It was pointed out that relief in para 28(e) of the petition was intended to ensure continuity of service. Existing employees have an option not to join the service of the transferee company and leave the service. Therefore, the provision that if the relief as prayed for in para 28(e) is granted, the existing workforce will forcibly have to join the service of the transferee company is misplaced. A similar provi....
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....ice Board was displayed by the transferor company and transferee company informing that those of the workmen/employees who did not wish to join/work with RIL, had the right to leave service within two months from 16-8-2007 by informing IPCL/RIL. Such direction was given by the Company Court, consequent to the objectors' insistence for the same. It is an admitted fact that till date not a single workman has informed the transferor company or the transferee company opting not to join/work with RIL. It is thus clear that the scheme as sanctioned by this Court has also been accepted, inter alia, by all the workmen, including members of the appellant-unions. 19. Before dealing with the rival submissions, we may refer to the relevant part of clause (8) of the scheme of amalgamation providing that the transferee company (RIL) shall absorb all the employees of the transferor company IPCL as on the date of the scheme coming into force- "8. Employees. 8.1 Upon the coming into effect of this Scheme :- (a)All the permanent employees of the Transferor Company who are in employment as on the Effective Date shall become the employees of the Transferee Company with effect from the Effe....
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....eedom of choice if he has the freedom not to join the transferee company, but upon exercising such freedom he is not going to get any retrenchment compensation either from the transferor company or from the transferee company if the workman opting not to join the transferee company (RIL) is to be treated as voluntarily resigning from the transferee company and, therefore, will be treated as falling outside the definition of retrenchment. (This is the stand of the respondent in their written submissions). We find that this argument of Mr. Girish Patel, learned counsel for the appellant-unions does require serious consideration. 22. An establishment or undertaking may be transferred from one owner to another either by operation of law or by agreement between the parties. Since a contract of service is ordinarily not capable of transfer, the transfer of the establishment or the undertaking would put an end to the relationship of employment between the transferor company and its employees. Section 25FF, therefore, provides that this shall be deemed to be retrenchment and provides for retrenchment compensation to the workmen. The proviso to section 25FF, dispenses with payment of ....
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....r of consent of the individual employee cannot be a ground to invalidate the action." (p. 2059) [Emphasis supplied] The Apex Court further examined the scope and ambit of section 25FF and held that the workmen covered by section 25FF are entitled to claim retrenchment compensation in case the undertaking which they were serving and by which they were employed is transferred. Such a transfer, in law, is regarded as amounting to retrenchment of the said workmen and on that basis section 25FF gives the workmen the right to claim compensation. The proviso to section 25FF excludes its operation where, in spite of the transfer, the service of the workmen has not been interrupted, the terms and conditions of service are not less favourable after transfer, than they were before such transfer, and the transferee is bound under the terms of the transfer to pay to the workmen, in the event of their retrenchment, compensation on the basis that their service had been continuous and had not been interrupted by the transfer. Where all the three conditions are satisfied, the workmen concerned would not be entitled to claim compensation merely by reason of the transfer. 25. The learned counse....
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....ppellants, there must be a tripartite agreement and that in absence of such tripartite agreement, the transfer from one employer to another cannot be effected. The Apex Court then concluded as under :- "... The position in law is clear, that no employee can be transferred without his consent, from one employer to another. The consent must be express or implied. We do not find it necessary to refer to any case law in support of this conclusion." 26. Since the Hon'ble Supreme Court has already pronounced on the question of transfer of employees from one employer to another, of course - not in the same voice, it is not necessary to make any detailed reference to the decision of this Court in Gujarat Nylons Ltd.'s case (supra) and the decision of the Bombay High Court in Rallis Group Employees' Union v. Rallis India Ltd. [2002] 1 LLJ 173. In both the above decisions also it has been held that the employees of the transferor Company cannot be compelled to join the transferee Company. 27. While the BCPP Mazdoor Sangh case itself and three out of four cases relied upon by the Apex Court in BCPP Mazdoor Sangh case were in relation to transfer of employees of Government Companies o....
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....in normal cases, no greater than the change he would experience when the company which he is serving throughout changes its directors, its shareholders, its managers, its scope of operations, and its name, all of which it may do without losing its identity. No doubt this is true in many cases, though I am far from saying that the transformation of a small private or family company, in which the wage-earner maintains a personal relation with the principal shareholders, who act as managers and directors, into a much larger concern, where personal contacts disappear, is in all cases, a matter of indifference to the employees, but the point made is that such a transformation can take place without necessarily changing the identity of the company. ****** It is no longer possible to give to section 154 an interpretation which would automatically transfer every kind of current contract merely by substituting the name of the new company for the name of the old. The argument that an order made under the section transfers wage-earners from one employer to another without their consent thus loses much of its force. I do not see why there should be any great practical difficulty in the o....
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.... people, whether they are servants, or landlords, or authors, do not attach importance to the identity of the particular company with which they deal. It would possibly hurt the feelings of financial men with large organizing powers and ambitions to know how strongly some people feel about big combinations, and especially amalgamations of small trading concerns. However, it is said how unreasonable this is, for the big company can buy the majority of the shares in the old company, replace the directors and managers, change the policy and produce the same result. Be it so. Nevertheless, the result is not the same. The identity of the company is preserved, and, in any case, the individual concerned, while he must be prepared to run the one risk, is entitled to say that he is not obliged to the run the other. The truth is that this argument was tried out and repelled over 40 years ago by sterling, J., in Griffith v. Tower Publishing Co., Ltd., and Moncrieff, [1897] 1 Ch. 21, where an author was held justified in refusing to allow his contract to be transferred to another company." [Emphasis supplied] Nokes' decision would, therefore, apply to the case of amalgamation of two compani....
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....mediately after amalgamation or within a reasonable period from the date of amalgamation would also be sufficient compliance with the legal requirement to transfer the employees to the new employer with their consent. Rights of Employees of Transferor Company opting not to join Transferee Company 29. In short, the Courts have held that express or prior consent of the individual workmen or their unions is not necessary for the transfer of undertaking or amalgamation of two companies to become effective, but express or implied consent of the workman is necessary to bring into existence the relationship of employer and employee between the transferee company and the workmen of the transferor company. The question still survives as to whether an individual workman has the option of not joining the new employer and claiming retrenchment compensation on account of the deemed retrenchment resulting from transfer of the undertaking. While section 25F deals with retrenchment of an individual workman or a few workmen by the employer putting an end to their services, section 25FF deals with the situation where the ownership or management of an undertaking is transferred, whether by agre....
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....dually by every employee. It should suffice if a workman who does not desire to join the transferee company is permitted to opt out. 30. Now coming to the heart of the debate- "when will the proviso to section 25FF come into operation? 25FF. Compensation to workmen in case of transfer of undertakings - Where the ownership or management of an undertaking is transferred ... ... from the (existing) employer in relation to that to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched : 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 employee is, under the terms of su....
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....ho is not willing to join the services of the new employer, even if the new employer is ready to fulfil all the three conditions stipulated in the proviso to section 25FF. An employee of the transferor Company may not desire to join the transferee company for any reason; such as he does not want to be a part of aggressive competitive business environment in the transferee company which he had never agreed to serve but which has now taken within its fold the existing employer of the workman (i.e., the transferor company). 32. In our view, the question of applying the proviso to section 25FF will apply only in case of those employees who are ready and willing to serve the transferee Company. In other words, retrenchment compensation will not be payable to those employees of the transferor company who are ready and willing to be transferred to the transferee company and the transferee company satisfies all the three conditions stipulated in the proviso. However, in case of employees of the transferor Company who are not ready and willing to serve the transferee Company, they cannot be denied retrenchment compensation payable under the substantive part of section 25FF, which creates....
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....reat it to be complete law decided by this Court. The judgment 'must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court." (p. 369) In Management, Mettur Beardsell Ltd.'s case (supra), nearly 2,500 employees had accepted the transfer and did not raise any dispute; only 27 employees alleged the transfer of undertaking to be sham and fraudulent and alleged that they (27 employees) were being targeted. 9 out of those 27 gave up their challenge. Reversing the decision of the High Court, the Apex Court held on facts that there was no substance in those allegations, and that the transfer of undertaking was genuine. It was in the backdrop of these findings that the Apex Court held that there was no need for any fresh contract of service between the transferee company and the employees of the transferor Company, meaning thereby express consent of the workmen of the transferor company was not necessary. The Hon'ble Supreme Court was not called upon to decide the question whether a workman who was not willing to join the service of the transferee company was entitled to claim retrenchment compensation, ....
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....ully in an increasingly competitive industry." When employees of IPCL with such skill, talent and experience of 20 to 30 years opt not to join the transferee company and claim retrenchment compensation on the ground that the transferor company is dissolved and they do not wish to join the new employer, the so-called option given to the employees of the transferor company in the past cannot be treated as meeting with the legal requirements as laid down in this judgment. 35. We hasten to add that the above discussion is only for the purpose of deciding the legal controversy raised before us and that the decision would be applicable to all such cases of amalgamation, but we clarify that the discussion in the preceding paragraphs is not to be treated as any observation, much less an aspersion, on the philosophy or business environment of the transferee company in the instant case. 36. Before concluding, it will not be out of place to mention that while in clause 8 of the scheme of amalgamation as sanctioned by the learned Company Judge, the conditions stipulated in clauses (a) and (b) in the proviso to section 25FF are fulfilled; in terms, there is no specific reference to the....
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....f the transferor company, bringing to an end the contract of service between the workman and the transferor company and the consequential liability of the transferor company (after amalgamation - of the transferee company as the successor of the transferor company) to pay retrenchment compensation to the workman who does not wish to join the transferee company. We also hold that in case of such transfer, the workmen who agree to join the service of the new employer, who fulfils all the three conditions stipulated in the proviso to section 25FF, are not entitled to claim any retrenchment compensation. We also record the statement being made by Mr. K.S. Nanavati that the new employer, that is the transferee company (RIL), shall pay to the IPCL workmen absorbed in the services of RIL with their consent as explained in this judgment, in the event of their retrenchment from RIL, compensation on the basis that the services of such workmen have been continuous and have not been interrupted by the transfer, that is to say, for the purpose of computation of retrenchment compensation, gratuity and other terminal benefits, services rendered by the workmen to IPCL before amalgamation will b....
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....eme of amalgamation, no undue demand can be entertained. Further, it has been argued generally as to what would be the fate of the workmen post amalgamation, where would they stand etc. However, it is NOT shown as to how the workmen's rights get adversely affected by the scheme. The arguments offered are merely theoretical, philosophical and without any substance. The question that there is a possibility of streamlining of operations of the transferee company and that would be prejudicial to workmen is a mere hypothetical submission made by the objectors and has no basis whatsoever. 40.3 Employees' right to seniority and promotion as of existing employees of the transferor company constitute, to the extent that they are, part of the existing conditions of service, which are protected by Clause 8 of the Scheme and post-merger would be governed by the provisions of the Industrial Disputes Act and in particular section 9A of the Industrial Disputes Act, 1947. 41. As regards the rights of the employees of the transferor Company subsequent to amalgamation vis-a-vis the rights of employees of the transferee company- (i)Mr. K.S. Nanavati for the respondent Company submits that it....
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....t employees of the transferor Company who are in employment as on the effective date shall become the employees of the transferee Company with effect from the effective date without any break or interruption in service and the terms and conditions as to employment and remuneration shall be not less favourable than those on which they are engaged or employed by the transferor Company. There was no need to make any further detailed provisions in the Scheme of amalgamation regarding issues such as pay, DA or seniority and promotion of existing employees of the transferor Company. The learned counsel for the respondent is justified in submitting that the conditions of service of employees of the transferor Company are protected by clause 8 of the Scheme and that whatever disputes the employees may have in future would be governed by the provisions of Industrial Law. Nothing prevents such employees from making their demands even before the transferee company for improvement of their conditions of service. 44. Clause 8.1 of the Scheme does not foreclose the right of the workmen of the transferor Company to demand better conditions of service after amalgamation and even to claim all th....
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.... employees of the transferee Company, this by itself cannot entitle such employees to claim all the rights, benefits and privileges which were available to the employees of the transferee Company prior to amalgamation. In our view, the learned Company Judge has also rightly clarified that if the employees of the transferor Company, after amalgamation with the transferee Company, feel aggrieved by any service condition or seek to claim better conditions of service, they can approach appropriate forum and that those proceedings will be disposed of in accordance with law by appropriate authorities under the relevant statutes. 45. As regards the apprehension that workmen of IPCL as employees of the transferor Company are not assured the job security after amalgamation with the transferee Company, we do not find anything to justify such apprehension. The transferor company before amalgamation was a profit making company and the transferee Company is not only a profit making but also a leading Company in India with global presence. As observed by the Apex Court in Hindustan Lever Employees' Union's case (supra) 'no one can envisage what will happen in the long run. But on this hypothe....
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....nd Bugle Press Ltd., In re [1961] Ch. 270 that the power of the court is to be satisfied only whether the provisions of the Act have been complied with or that the class or classes were fully represented and the arrangement was such as a man of business would reasonably approve between two private companies may be correct and may normally be adhered to but when the merger is with a subsidiary of a foreign company then economic interest of the country may have to be given precedence. The jurisdiction of the court in this regard is comprehensive." [Emphasis supplied] In the facts of the present case both IPCL and RIL are Indian Companies and therefore, the Court is to apply the principles of 'prudent business management test'. The provisions of the Companies Act have been complied with. The shareholders and the creditors were fully represented and the arrangement was such as a man of business would reasonably approve. These questions have already been examined in our judgment dated 28-12-2007 dismissing OJ Appeal No. 241 of 2007 which was filed by 17 minority shareholders. 49. In our view, the other submissions go far beyond the scope and ambit of the jurisdiction of the Compan....