THE HON’BLE SRI JUSTICE G.CHANDRAIAH %23.07.2010 W.P.NO.7372 OF 2004 J.V.SUDHAKAR PETITIONER And GOVERNMENTOF A.P. REPRESENTED BY ITSPRINCIPAL SECRETARY AND FOUR OTHERS. RESPONDENTS Counsel for the appellant: Sri I.Mallikarjuna Sharma Counsels for the respondents : R-1 and R-2 - G.P. for Labour R-3 and R-4 - Sri S.Ravindranath R-5 - Sri N.V.Anantha Kirishna < Gist Ø Head Note. Ø ?Cases Referred: 1. 1996-II-LLJ-852 2. AIR 1970 SC 823 3. AIR 1989 SC 1577 4. AIR 1963 SC 1489 5. AIR 1964 SC 645 6. 1981 (1) Andhra Law Reports 394 7. AIR 1989 SC 1607 8. AIR 2008 SC 336 9. AIR 2006 SC 2056 10. AIR 1969 SC 1306 THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.7372 OF 2004 O R D E R Heard the counsel for the respective parties. 2. The case of the petitioner as stated in the affidavit filed in support of the writ petition is that he was working as Paster in the Paste-up Department of Express Publications (Madurai) Ltd., working for Andhra Pradbha at Hyderabad Head Office and he has put in 26 years of service. He had gone on leave from 9.1.2003 to 3.2.2003 and that when he returned back to join duty, he was not permitted to join duty in the office of the 4th respondent – Express Publications (Madurai) Limited, Hyderabad, on the ground that Andhra Prabha Daily, was transferred to 5th respondent – Vasavi Communications Ltd. The case of the petitioner is that he is not willing to join 5th respondent, therefore, he sought respondents 3 and 4 to extend him Voluntary Retirement Scheme (VRS) scheme or to terminate him by way of retrenchment under Section 25-FF of the Industrial Disputes Act, 1947 (for short ‘the Act’) and pay the retrenchment compensation under Section 25-F of the Act. But the same is not paid. His grievance is that before transferring his services to 5th respondent – undertaking, no consent was taken and that without his consent, his services cannot be transferred, as he is willing to work only under respondents 3 and 4 and not under respondent no.5. In the writ affidavit he also stated that he was not paid the arrears of wages as per the Manisana Wage Board and that though he made representations to the Principal Secretary to Government, no action was taken. Therefore, his case is that as the respondents 3 and 4 violated statutory provisions under Section 25-FF of the Act, the official respondents 1 and 2 shall take action against them. As the respondents 3 and 4 are neither taking him into service, nor paying compensation under Section 25-FF of the Act, he filed the present writ petition. 3. The Additional Commissioner of Labour, Office of the Commissioner of Labour, A.P., Hyderabad, filed counter affidavit on behalf of official respondents 1 and 2. In the counter affidavit it is stated inter alia that A. P. Union of Working Journalists represented through letter dated 17.9.2002 that Indian Express Publications (Madhurai) Ltd., was transferred to Vasavi Communications and requested for intervention of the Labour Department. The Joint Commissioner of Labor, after elaborate discussions, advised both the managements, Express Publications (Madhurai) Ltd., and Vasavi Communications Ltd., that they should comply with Section 25FF of the Act while transferring the services of the employees and that the terms and conditions of service applicable to the employees of Andhra Prabha under the new management of Vasavi Communications Ltd, shall be the same that were applicable to them before transfer from the management of Express Publications (Madhurai) Ltd., and that in the event of future retrenchment, Vasavi Communications Ltd., is legally liable to pay compensation on the basis, that the service of the employees has been continuous and has not been interrupted by the transfer. It was further made clear that violation of Section 25FF of the Act, will attract penal provisions and that both managements should abide by the provisions of Section 25FF of the Act while transferring the services of employees of Andhra Prabha from Express Publications (Madhurai) Ltd., to Vasavi Communications Ltd., The minutes were recorded and communicated to the parties. 4. In view of the above position, the claim of the workman in the affidavit that Section 25 FF of the Act was violated by the management, is not correct. The petitioner did not choose either to resign or to continue his service with the Vasavi Communications Ltd. The petitioner cannot demand the management that he should be retained with Express Publications or else he should be paid VRS benefits or he should be treated as if he is retrenched. The petitioner should choose either to join Vasavi Communications or resign with Express Publications (Madhurai) Ltd., and take terminal benefits. Thus it is very clear that Section 25-FF of the Act will come into picture when the new management i.e., 5th respondent fails to provide job to the employees. 5. It is further stated that the petitioner represented to the Government through letter dated 24.1.2004 to do justice under Section 25 FF of the Act. The petitioner was advised to prefer claim under Section 33 ( C ) (2) of the Act before the Labour Court, through letter no.E2/3316/2004 dated 26.3.2004 of the Commissioner of Labour, since authority under Section 17(1) of Working Journalist (Conditions of Services) and Miscellaneous Provisions Act, 1955, cannot decide disputed amounts. 6. In the counter it is further stated that the Express Publication (Madhurai) Ltd., Hydeabad and its employees reached a memorandum of settlement, taking gross revenue of Hyderabad center for the accounting years 1995-96, 1996-97 and 1997-98, wherein it was agreed that the establishment falls under class III classification and accordingly to implement Manisana Wage Board award with effect from 1.1.2002. An agreement was entered into between the management and the recognized union, which represented all the employees, and after duly considering all the circumstances, including financial position of the company with respect to classification and implementation of Manisana Wage Board award, is made binding on the parties. With these averments the writ petition was sought to be dismissed. 7. Counter affidavit is filed on behalf of the respondents 3 and 4 and it is stated that the wit petition is not maintainable as the respondents are not the State or the instrumentalities of the Act and this court in W.P.No.5128/2001 dated 19.04.2001 held that the writ petition is not maintainable and further the petitioner has got an alternative efficacious remedy under the Working Journalists Act. It is stated that the petitioner joined in the year 1.5.1977 and worked for Andhra Prabha daily till his services were taken over by 5th respondent i.e., on 9.1.2003. The tenor of the further counter affidavit is that the Andhra Prabha of respondents 3 and 4, was sold to the 5th respondent and that they have issued letters dated 6.1.2003 and 7.1.2003 respectively to the employees who are working for the said publications, informing that their services were taken over by the 5th respondent with effect from 9.1.2003, including the petitioner. On the date of issuing of notices, the petitioner was on leave and the selling of the Telugu publications to 5th respondent was brought to the notice in a joint meeting held on 6.1.2003. Apart from issuing letters, the management has put up notice dated 10.1.2003 that the services of A.P. employees (110) persons had been taken over by the 5th respondent as per the list enclosed to the notice, which included the name of the petitioner and the said copy was also sent to the Commissioner of Labour and Inspector of Factories. The Union had approached JCL, Hyderabad and in a joint meeting convened by JCL, Hyderabad on 12.3.2003, 5th respondent informed before the JCL that they had offered individual letters including to the petitioner also. The petitioner claimed that he was not given any offer letter, which is false and not true. The petitioner had intentionally evaded to take these letters. Hence the same were sent by RPAD to his last known address along with Wage Board arrears DD, which cover was returned with postal endorsement “no such person in the address”. The service files and service particulars of all 110 Hyderabad centre Andhra Prabha employees, including the petitioner, were taken over by 5th respondent duly giving the acknowledgement. Therefore, consequent upon the transfer of the publications, those employees working for the said publications in the respective publication centers are in no way concerned and connected with EPML as their services were taken over by the new employer and the petitioner is one among them. When there is no change in terms and conditions of the employment in view of the transfer of the publications, the petitioner alone, instead of joining with the new management, has filed the present writ petition only to harass the respondent. It is stated that the provisions of Section 25-F of the Act for payment of compensation are not applicable. The issue with regard to taking over of Telugu Publications by 5th respondent, the matter has already been dealt with by the appropriate Government authorities and the same was also explained in W.P.No.22060/2002 filed in this matter and the same was disposed of. In another writ petition in this matter in W.P.No.756/2003 filed by the Union, this court by order dated 10.1.2003 taking note of the transfer and the martial on record, observed that the interests of the members of the petitioner-union is very much protected. The provisions under Section 25 FF comes into play for the future retrenchment, if any, by the new employer – 5th respondent. With these averments inter alia, the writ petition was sought to be dismissed. 8. Counter affidavit is filed on behalf of the 5th respondent. While denying the averment that the right of petitioner is deprived, it is stated that the 3rd and 4th respondents transferred the Andhra Prabha Telugu Daily newspaper and weekly edition to them on 9.1.2003 and they have received all services of employees who were working for the said publications and that they have informed to the employees regarding the transfer . The petitioner was on leave from 9.1.2003, on which date both the managements issued individual letters to the employees who were working for Andhra Prabha and whose services have been taken over by them. Andhra Prabha is one of the establishments of the 3rd respondent company purchased by them and the said fact was within the knowledge of the employees working in Andhra Prabha. All of them accepted and they did not raise any objection to this extent and since the commencement of publication by the 5th respondent of Andhra Prabha daily and weekly, most of the employees joined without raising any objection or dispute. In terms of the agreement between the 3rd and 5th respondent, the services of all employees who have worked in Andhra Prabha are to be protected with the same pay and allowances and accordingly provisions of Section 25FF have been complied with. 9. It is further stated that the petitioner never approached this respondent nor made any representation regarding the Section 25 FF of the Act and it was clearly mentioned by the petitioner that he is not willing to work before this respondent and he want to continue with the 4th respondent for the purpose of extending VRS scheme or to terminate his services treating as retrenchment under Section 25 FF of the Act. The same cannot be extended, since there is no violation of Section 25 FF. In the counter affidavit, the averments made in the counter affidavit filed by respondents 3 and 4 is reiterated and with these averments, the writ petition was sought to be dismissed. 10. The learned counsel appearing for the petitioner made elaborate arguments and vehemently contended that the petitioner has put in 26 years of service and that without his express consent, his services cannot be transferred to 5th respondent. In support of this contention, he relied on the judgment of the Madras High Court reported in SPENCER CONS. PRO & SER LTD. v. PRESS. OFF. INDI. TRI & ORS.[1] He contended that contract of service is incapable of transfer unilaterally and such a transfer has to be done only by tripartite agreement and hence he contended that the transfer of services of the petitioner without his consent, is arbitrary and illegal. In support of this contention, he relied on the judgment of the Apex Court reported in THE MANAGER M/s PYARCHAND KESARIMAL PORWAL BIDI FACTORY v. ONKAR LAXMAN THENGE[2]. He also relied on the judgments of the Apex Court reported in JAWAHARLAL NEHRU UNIVERSITY v. DR.K.S.JAWATKAR[3]. The learned counsel further relying on the judgments of the Apex Court reported in ANAKAPALLE CO-OPERATIVE AGICULTURAL AND INDUSIAL SOCIETY LTD. v. WORKMEN[4] and THE MANAGEMET OF R.S. MADHO RAM AND SONS (AGENCIES) PRIVATELTD. V. THE WORKMEN AS REPRESENTED BY MADHO RAM AND SONS EMPLOYEES’ UNION[5], contended that the transfer itself is bad. 11. With regard to maintainability of the writ petition against a private bodies, the learned counsel relying on the judgment of a learned single Judge of this court in GATTAIAH vs. COMMR. OFLABOUR HYDERABAD[6] contended that even against the private bodies writ is maintainable, when there is statutory violations. He contended that the respondents 3 and 4 in violation of the statutory provisions under Section 25- FF of the Act, denied the employment to the petitioner and therefore, this court under Article 226 of the Constitution can direct the parties to comply with the statutory obligations under the Act. For the same proposition, he relied on the judgment of the Apex Court in SHRI ANANDI MUKTA SADGURU SHREE MUKTAJEE VANDASJISWAMI SUVARNA JAYANTHI MAHOTSAV SMARAK TRUST v. V.R.RUDANI[7]. 12. He further contended that in the present case there are no disputed facts and as there is statutory violation, the writ petition is maintainable and the petitioner need not be relegated to avail the alternative remedy. In support of this contention, he relied on the judgment of the Apex Court reported in BCPP MAZDOOR SANGH v. N.T.P.C.[8] 13. With the above contentions, the learned counsel submitted that as the consent of the petitioner was not obtained before transferring his services and as the petitioner is not willing to serve in the transferee – company, his services may be treated as retrenched and the compensation as provided under Section 25 FF of the Act may be directed to be paid to him. 14. On the other hand the learned counsel appearing for the respondents vehemently contended that the consent of the petitioner before transferring his services to the new undertaking is not required and as the conditions under the proviso to Section 25 FF have been complied with and as there is no complaint from the petitioner that by virtue of transfer, his service conditions are affected, no notice of transfer or any consent is required. In support of the contention that no consent of the employee is required, the learned counsel for the respondents relied on the judgment of the Apex Court in MANAGEMENT, METTUR BEARDSELL LTD. v. WORKMEN OF METTUR BEARDSELL LTD.[9] With this contention and reiterating the averments made in the counter affidavit, the writ petition was sought to be dismissed. 15. In view of the above rival contentions, the following issues would arise for my consideration: 1. Whether the consent of the petitioner is required for transferring his services into the transferee company? 2. Whether the petitioner can seek for payment of compensation under Section 25-FF consequent on the transfer of the undertaking in which he is working, particularly when there is no specific complaint with regard to interruption of service or non-compliance of the provisions under the proviso to Section 25 FF? 3. Whether the writ petition is maintainable? 16. First I shall consider the issue no.3 with regard to maintainability. The grievance of the petitioner is that the statutory provisions under Section 25-FF of the Act have been violated by respondents 3 and 4. Therefore, in order to examine whether there any statutory violations, the writ petition, in my considered view, is maintainable even against the respondents 3 and 4, which are private bodies. This court has already entertained writ petitions filed in connection with the present undertaking, in W.P.Nos.22060/2002 and 756/2003. A learned single Judge of this court in GATTAIAH vs. COMMR. OF LABOUR HYD. (6 supra) while considering the maintainability of a writ petition in relation to violation of statutory provisions under the Act, by private bodies, held that writs can be issued against a company for violating the statutory duties under the Act. The Apex Court in the decision reported in PRAGA TOOLS CORPORATION vs. C.V. IMMANUAL[10] held as under: “It is well understood that a Mandamus lies to secure the performance of public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest . . . it is, however, not necessary that the person or the authority on which the statutory duty is imposed need be a public official or an official body. A Mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings”. 17. In view of the above, the contention of the respondents that writ petition is not maintainable, cannot be countenanced and it is held that the writ petition is maintainable, since the petitioner complained the violation of the statutory provisions under Section 25-FF of the Act. The issue is accordingly answered in the affirmative. 18. With regard to relegating the petitioner to avail alternative remedy is concerned, it is be noticed that the writ petition was filed in the year 2004 and the same was admitted by this court on 19.4.2001 and thereafter, the matter was pending all these years and interim orders were also passed for posting the matter for final hearing. At this length of time, I am of the considered view that in the interest of justice, it is just and necessary to decide the writ petition in accordance with law, as no disputed questions of fact are involved and only the violation of the statutory provision is complained. 19. In order to consider the other issued framed above, it is necessary to first note Section 25-FF of the Act. The same is extracted as under: 25-FF. Compensation to workmen in case of transfer of undertakings:- Where the ownership or management of an undertaking is transferred whether by agreement or by operation of law, from the employer in relation to that undertaking 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 25-F, 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 reasons 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 the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and not been interrupted by the transfer. 20. From the above provision under Section 25 FF it is clear that if there is transfer of ownership or management of an undertaking, by way of agreement or by operation of law, the employee of the transferor undertaking who is in continuous service for not less than one year immediately before such transfer, is entitled to notice and compensation in accordance with Section 25-F, as if the workman had been retrenched. But as per the proviso, it is clear that the above procedure of issuing notice and payment of compensation under Section 25-F of the Act, will not apply if such transfer of undertaking does not affect the continuance of service and that the terms and conditions of service are not less favourable in the transferee undertaking and that the new employer under the terms of such transfer or otherwise, is made legally liable to pay the workmen in the event of his retrenchment, compensation on the basis of his continuous service. 21. It is to be noticed under common law that an employee cannot be transferred without his consent, applies where there is master-servant relationship and it will not apply to statutory transfers. Further, from a reading of the above extracted provision, it no where suggests that the consent of an employee is required to be taken before transferring his services to the transferee undertaking. 22. The question of payment of compensation to an employee on transfer of an undertaking under Section 25-FF would arise only if there is violation of the proviso to the said provision i.e., the services of the workman has been interrupted by transfer of undertaking; that there the terms and conditions of service in the transferee undertaking are less favourable than those applicable to him immediately before the transfer and that the new employer is not made legally liable to pay compensation in case of retrenchment. In other words, if there is no violation of the proviso to Section 25 FF of the Act, the employer cannot claim compensation as envisaged un the main section. 23. The Apex Court in the decision reported in MANAGEMENT, METTUR BEARDSELL LTD. v. WORKMEN OF METTUR BEARDSELLLTD. (9 supra) held that the common law rule that an employee cannot be transferred without consent, applies in master-servant relationship and not to statutory transfers, that there is nothing in the wording of S.25FF even remotely to suggest that consent is a pre-requisite for transfer of undertaking; that the underlying purpose of S.25FF, is to establish a continuity of service and to secure benefits otherwise not available to a workman if a break in service to another employer was accepted and, that therefore the letter of consent of the individual employee cannot be a ground to invalidate the action. The relevant portion at paragraph nos.10, 15, 16 and 17 is extracted as under for better appreciation: “10.. . . . The common law rule that an employee cannot be transferred without consent, applies in master – servant relationship and not to statutory transfers. Though great emphasis was laid by learned counsel for the respondent on Jawaharlal Nehru University v. Dr.K.S. Jawatkar and others (1989 (Supp) 1 SCC 679), a close reading of the judgment makes it clear that the common law rules was applied. But there is no any specific reference to Section 25FF or its implication. There is nothing in the wording of Section 25FF even remotely to suggest that consent is a pre-requisite for transfer. The underlying purpose of Section 25FF is to establish a continuity of service and to secure benefits otherwise not available to a workman if a break in service to another employer was accepted. Therefore, the letter of consent of the individual employee cannot be a ground to invalidate the action. 15. Section 25-FF of the Act provides, inter alia, that where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who satisfies the test prescribed in that section shall be entitled to notice and compensation in accordance with the provisions of Section 25-FF as if the workmen had been retrenched. This provision shows that workmen falling under the category contemplated by it, are entitled to claim retrenchment compensation in case the undertaking which