Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL APPLICATION NO.3108 OF 2007 IN WRIT PETITION NO.8508 OF 2007 Mr.Pandurang Vitthal Patil Pune. ...Petitioner V/s. Philips India Limited (Now known as Vishay Components India Pvt.Ltd.) Loni, Kalbhor, Tal.Haveli, Dist. Pune ...Respondents Mr.N.A.Kulkarni for the Petitioner Mr.K.S.Bapat, Advocate for Respondent No.1 Mr.Rahul Nerlekar for proposed Respondent No.2 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 1st February , 2008 : 1st February , 2008 : 1st February , 2008 P.C. Heard Mr. Kulkarni, the learned counsel for the applicant. 2. Rule. Respondents waive service. 3. By this application the petitioner is praying for leave of this Court to implead M/s. B.C.Components India Private Limited, presently the owners of M/s. Vishay Components India Pvt.Ltd. having its office at Loni, Kalbhor, Near Pune, Pune 412 201 as Respondent 2 No.2 in Writ Petition No. 8508/2007. The proposed Respondent No.2 has filed affidavit in reply and has opposed this application. It is admitted that by an agreement dated 22-4-1999 M/s. B.C.Components India Pvt. Ltd. has acquired and taken up the business of manufacturing and selling Conventional Passive Components (CPC) from Philips India Limited and as per one of the clause in the said agreement the employment of all the existing employees on the effective date i.e. 1-12-1999 will be protected and they shall be transferred to the new company from the rolls of M/s. Philips India Limited. It was further argued that all the obligations of M/s. Philips India Limited in respect of contract of employment of its employees arising in respect of any period prior to the effective date shall be performed and discharged by M/s. Philips India Limited only. It is, therefore, contended by the proposed Respondent that the Petitioner not being on the rolls of M/s. Philips India Limited on 1-12-1999, it has no liability in respect of the petitioner’s employment as per the Award passed by the Labour Court in Reference (IDA)No. 655/1998. 4. There is no dispute that the petitioner was in the employment of M/s. Philips India Limited-Respondent No.1 and he was the permanent employee of the said company. The charge sheet was issued by the company on 3 3-7-1995, he came to be dismissed from service as per the order dated 24-12-1997 after the departmental enquiry into the said charge-sheet was conducted. The said order of dismissal came to be challenged by raising a demand for reinstatement under the Industrial Disputes Act, 1947 and the said demand was referred for adjudication to the Labour Court under Section 10(1) and Section 12(5) of the said Act,in Reference(IDA) No. 655/1998. By the Award dated 29-1-2007, the Learned Judge of the IInd Labour Court at Pune was pleased to allow the reference partly and direct M/s. Philips India Limited to pay full backwages to the second party from the date of his termination i.e. 26-12-1997 till selling of the unit at Loni, Kalbhor of first party i.e. till end of 2003. As per the petitioner when the Learned Judge of the Labour Court recorded a finding that the action of dismissal from service by way of punishment was illegal, unjust and improper, the relief of reinstatement would follow with or without backwages or with loss of some backwages. But in the instant case the relief of reinstatement was denied on the ground that the factory of M/s. Philips India Pvt. Limited where the petitioner was working was taken up by M/s. B.C.Components India Limited and consequently the factory run by M/s. Philips India Private Limited was closed. The Learned Judge of the Labour Court observed that this taking over had occurred by the end of 2003. 4 5. If petitioner workman was satisfied with the Award passed by the Labour Court directing to pay full backwages, the learned counsel for the proposed Respondent is right in his submissions that execution of said Award would be certainly as against M/s. Philips India Limited in view of the contract between the two companies as referred to hereinabove. However, the petitioner has challenged the said Award and his contention in the application that once the proposed Respondent had agreed to take over the employees of M/s. Philips India Limited on the rolls as on 1-12-1999, the petitioner would be treated to be an employee as on 1-12-1999, if the order of dismissal was found to be illegal, unreasonable and improper then in that event the proposed Respondent is a necessary party. Once the action of dismissal is set aside or found to be illegal, improper and unjust,the doctrine of relation back in the service jurisprudence would enable the dismissed workman to advance his arguments that he was on the rolls of the company at all the times from the date of order of dismissal till the date of reinstatement and,therefore, it would be necessary that the proposed respondent is allowed to be impleaded as the Respondent No.2 so that in case this Court finds that the challenge of the petitioner to the impugned Award succeeds, the Respondent No.2 is heard on the issue of reinstatement. 5 6. Hence, the application is allowed in terms of prayer clause (a). Rule is made absolute accordingly. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]