1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O.C. J. WRIT PETITION NO.454 OF 2009 M/s.Hindustan Unilever Limited. ...Petitioner. Versus Mrs.Binaifer B. Randelia & Anr. ...Respondents. ....... Mr. R.N. Shah with Mr.Mahesh Londhe i/b. M/s.Sanjay Udeshi & Co. for the Petitioner. Mr. Bennet D’Costa for Respondent No.1. Mr.Rishit Badiani i/b.Hariani & Co. for Respondent No.2. ...... CORAM : DR. D.Y. CHANDRACHUD, J. November 23, 2009. P.C.: The challenge in these proceedings under Article 226 of the Constitution is to an interim order passed by the Industrial Court on 12th January 2009. The First Respondent was employed with the erstwhile Tata Oil Mills Company Ltd. on 25th July 1980. Upon the acquisition of TOMCO by the Petitioner, the services of the First Respondent were 2 taken over by the Petitioner. According to the Petitioner, the First Respondent was placed on deputation with a wholly owned subsidiary of the Petitioner, namely, Unilever India Exports Ltd. The First Respondent was assigned to a business division by the name of Sangam Direct which was being conducted by the wholly owned subsidiary. On 31st March 2007, a business purchase agreement was entered into between the Unilever India Exports Ltd. and the Second Respondent which is a Company by the name of Wadhawan Food Retail Pvt.Ltd., by which the business undertaking of Sangam Direct was transferred to and vested in the Second Respondent. The First Respondent was informed by a letter dated 27th September 2007 addressed to her by the Petitioner that consequent upon the transfer of the undertaking in which she is presently employed as a going concern, the services of the First Respondent stood transferred to the Second Respondent with immediate effect. The First Respondent instituted a complaint of unfair labour practices under Items 3, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 in which an 3 application for interim relief was made. By the order impugned in these proceedings, the Petitioner herein was directed to stay the execution and operation of its communication dated 27th September 2007 and to continue to pay the First Respondent her regular salary. In assailing the correctness of the order passed by the Industrial Court, reliance has been placed on behalf of the Petitioner, on a letter dated 5th October 2004 issued to the First Respondent. The letter records that the First Respondent had been working in the division called Sangam Direct of Unilever India Exports Ltd. for about a year and based on her performance it has been decided to regularize her transfer to the establishment. Based on this letter, it was urged that the First Respondent came to be appointed as an employee of the wholly owned subsidiary of the Petitioner and upon the transfer of the Sangam Direct division to the Second Respondent, the services of the First Respondent were transferred to the Second Respondent. The Industrial Court has dealt with the submissions urged 4 before it and has recorded reasons as to why prima facie, the case of the management could not be accepted and the workman was entitled to the grant of the interim relief. The Industrial Court was of the view that on the basis of the material on record, it would appear that on 26th May 2003, the First Respondent was sent on deputation to Unilever India Exports Ltd. However, she continued to be an employee of the Petitioner and even her pay slips for the months between January and February 2007 would show that payments were made by the Petitioner. Even after the execution of the business purchase agreement by the wholly owned subsidiary of the Petitioner with the Second Respondent, it was the Petitioner which continued to pay the salary of the First Respondent. The leave card of the First Respondent is also maintained by the Petitioner and leave was sanctioned by the officers of the Petitioner. In these circumstances, the Court held that the First Respondent was not an employee of the Unilever India Exports Ltd., but of the Petitioner and consequently, Unilever India Exports Ltd. has no authority to transfer her services to the Second Respondent under the sale of the business undertaking. A 5 strong prima facie case was held to have been made out and the balance of convenience was held to be in favour of the First Respondent. Counsel appearing on behalf of the Petitioner had, as already noted earlier, relied on the Petitioner's communication dated 5th October 2004 purporting to regularize the transfer of the First Respondent to the establishment of its wholly owned subsidiary. As against this, the material on record would show that: (i) The salary of the First Respondent was paid by the Petitioner even after the letter dated 5th October 2004; (ii) The salary of the First Respondent was paid by the Petitioner until November 2007; (iii) Even after the execution of the business purchase agreement between the Second Respondent and the wholly owned subsidiary of the Petitioner, it was the Petitioner which had borne the entire salary of the First Respondent. The salary slips were placed on the record of the Industrial Court and were produced during the course of hearing of these proceedings. The Leave card was also maintained by the 6 Petitioner and even after the date of the business purchase agreement, it was the Petitioner who sanctioned the leave of the First Respondent. The Petitioner has also lodged Form No.16 under the Income Tax Rules, 1962 for the period 1st April 2007 and 31st March 2008 in respect of the First Respondent in which it is the Petitioner which is referred to as the employer. The Petitioner has in the reply before the Industrial Court admittedly proceeded on the basis that the services of the First Respondent were placed on deputation with the Division of its wholly owned subsidiary. This admission appears in paragraph 12 of the reply. Prima facie, there was clear and cogent material before the Industrial Court to indicate that at all material times, both before and after the execution of the business purchase agreement, the First Respondent was treated as the employee of the Petitioner and it was the Petitioner which had paid her salary. The record of the Petitioner reflects this position. Besides this, it is necessary to note that the business purchase agreement contained a schedule of employees 7 whose services were purported to be transferred to the Second Respondent. The name of the First Respondent is clearly referred to as an HLL employee, namely an an employee of the Petitioner. If the First Respondent was the employee of the Petitioner, it was clearly not open to a separate corporate entity which is a wholly owned subsidiary of the Petitioner, to transfer the services of the the First Respondent to a third party purchaser who purchased a division of the subsidiary under a business purchase agreement. The Industrial Court was justified in passing the interim order since prima facie, a clear and cogent case has been made out. This case falls within that category of cases where manifestly even at the interlocutory stage, a strong prima facie case of the commission of an unfair labour practice is made out. The balance of convenience lies in favour of the employee in a case such as the present. In these circumstances, based on the material on the record, the order of the Industrial Court is based on a proper assessment of the documentary material. No case for interference is made out. However, it is necessary to clarify that all observations made in the present order are confined only to 8 the disposal of the application for interim relief and shall not come in the way of the trial of the Complaint on merits. The Petition shall accordingly stand dismissed. .....