MISCELLANEOUS MAZDOOR SABHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special C.A. is moved by Misc. Mazdoor Sabha through its Secretary on behalf of its members who were workmen working with respondent No. 3 at the relevant time. Respondent Nos. 4 and 5 are joined as constituted attornies in charge of the said concert while respondent No. 6 is joined through its Managing Director being parent company whose wholly owned subsidiary is respondent No. 3 industries.

(2.) The case of the petitioner-Union is that services of all the employees working with respondent No. 3-Company were terminated illegally on 3.2.1988 by notice at Annexure 'B' without following the provisions of Sections 25F, 25FFA, 25N and 25-O of the Industrial Disputes Act, 1947 ('the Act' for short) and Section 66 of the Bombay Shops and Establishment Act, 1948. Respondent No. 3 was registered as a private company on 20.12.1982 According to the petitioner, one of the objects of the company, as seen from the Articles of Association was to carry on business of manufacturing, preparing for market and/or selling and dealing in Mosquito net and allied products. The manufacturing operation of mosquito nets was carried on by the Mosquito Netting Plant managed by respondent No. 6 company which is a parent company. According to the petitioner, though the mosquito net plant was still manufacturing mosquito nets at the relevant time and even though it was not closed by respondent No. 6, respondent No. 3, a subsidiary company terminated the services of all its employees being 74 in Number. Thus, it was a wholesale termination of services of all the employees on the ground that sewing thread division of Ahmedabad Jubilee Mills had stopped working and all the divisions are closed and, therefore, the employees of Diwan Chemtex Industries Limited, will not be given work after working hours, w.e.f. 3.2.1988. It was stated therein that if the production will start in future, it will be informed in advance and the eligible employees will have their rights in respect of gratuity, leave encashment arrears of salary, termination salary and salary in lieu of notice required under the Administrative Rules. Names of employees and their categories whose services were terminated were shown in enclosed Annexure to the said notice and they were 74 in number. According to the petitioner, none of the relevant provisions of the I.D. Act of Bombay Shops and Establishment Act were followed and, therefore, the impugned notice was null and void and the concerned employees are entitled to be treated to have continued with respondent No. 3 and as they were not being given work, they has made complaints to respondents No. 1 and 2, specially respondent No. 2 who was discharging his functions under the Act and hence respondents No. 1, 2 are required to be directed to prosecute respondents No. 3 and 6 which according to the petitioner is the parent company. .............

(3.) So far as the grievances in the main petition are concerned, the first question to be decided is as to whether a direct petition under Article 226 is maintainable against respondent No. 3 and/or respondent No. 6 which are companies registered under the provisions of the Companies Act, 1956 and if such a petition is maintainable, further question would arise as to whether the impugned notice at Annexure 'B' is null and void and even if it is null and void, whether any relief can be given against respondent No. 6 in the present proceedings when highly disputed questions of facts are raised as to whether respondent No. 3 is in any way part and parcel of respondent No. 6 company and where they result in such disputed questions of fact, petitioner should be relegated to the remedy under the I.D. Act or not. We shall, therefore, first deal with the question of maintainability of this petition under Article 226 of the Constitution against respondent No. 3 or for that matter, respondent No. 6. Maintainability of writ petition:- Sub-clause (1) of Article 226 provides thus :