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SCA/1898/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1898 of 2011
=========================================================
CEMA
ELECTRIC LIGHTING PRODUCTS (INDIA) PVT LTD - Petitioner(s)
Versus
KOKILABEN
BUPENDRABHAI PRAJAPATI & 1 - Respondent(s)
=========================================================
Appearance
:
MR
HASMUKH THAKKER for
Petitioner(s) : 1,
MRS SANGEETA N PAHWA for Respondent(s) : 1,
MR
SAMATA PATEL for NANAVATI ASSOCIATES for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/06/2011
ORAL
ORDER
1. Heard
learned advocates appearing on behalf of respective parties.
2. In
this matter, learned advocate Mr. Thakkar submitted that in identical
case i.e. Special Civil Application No.3603 of 2011, this Court has
passed an order on 18th
March, 2011, therefore, same order may be passed in this matter also.
3. Considering
his submissions, following order is passed by this Court :
4. In
present petition, petitioner – company has challenged order
passed by Industrial Tribunal, Nadiad in Approval Application No.20
of 2004 in Reference No.159 of 2001, dated 14.5.2009. The Industrial
Tribunal, Nadiad has rejected approval application filed by erstwhile
employer – respondent No.2
herein under Section 33(2)(b) of I.D.Act,1947.
5. Learned
advocate Mr.Thakker submitted that this Unit has been taken over by
business transfer agreement on 18.1.2007. Prior to that, it was not a
responsibility of petitioner to comply with order passed by
Industrial Tribunal, Nadiad while rejecting approval application
filed by respondent No.2. He also submitted that at the time when
business transfer agreement was entered between petitioner and
respondent on 18.1.2007, condition was incorporated which is at
Article VI. Relevant clause 6.02(b) and 6.02(c) is quoted as under :
“6.02(b) The
Seller agrees to furnish to each of the Employees of Seller a letter
proposing the transfer of their services to the Acquiror with effect
from Closing Date (the “Transfer Letter”). A proforma of
the Transfer Letter to be issued to each of the concerned employees
(both in the case of employees who are “workmen” and
those who are not covered as “workmen”) of the Seller is
hereto annexed and marked Exhibits I-1 and I-2 respectively. The
Acquiror has agreed to sign the Transfer Letters in token of its
acceptance of the terms and conditions of the transfer of services of
the Employees of Seller.
6.02(c) Such
Employees of Seller who accept such the transfer of services are
collectively referred to as the “Transferred Employees”.”
6. Therefore,
learned advocate Mr.Thakker submitted that respondent No.1 –
employee has not complied aforesaid two conditions of business
transfer agreement dated 18.1.2007. Therefore, petitioner is not duty
bound or having any legal obligation to implement the aforesaid order
passed by Industrial Tribunal, Nadiad under Section 33(2)(b) of
I.D.Act,1947.
7. In
light of aforesaid background and considering the fact that
petitioner was not a party to the aforesaid proceedings, therefore,
present petition is not entertained by this Court only on that ground
and is accordingly disposed of at this stage without expressing any
opinion on merits.
8. However,
it is made clear that in case if any proceedings is initiated by
respondent No.1 – employee against present petitioner for
implementation of order passed by Industrial Tribunal, Nadiad in
Approval Application which is under challenge in present petition, at
that occasion, it is open for petitioner to challenge very same order
passed by Industrial Tribunal in Approval Application.
[H.K.
RATHOD, J.]
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