9911796707
TMI Blog2024 (11) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... sorted to several unfair labour practices which resulted in several clients of the Appellant terminating their contracts with the Appellant. This led to the appellant losing all its business. The facts reveal under the garb of interpreting the Scheme the Respondent No.1 is seeking a modification of the Scheme which in fact is impermissible. By way of the impugned order, the Ld. NCLT had rather modified the express terms of the Scheme and had erroneously directed the Board of Directors to take the employees of ATM and Cash Management Division of Respondent No.2 as on appointed date provided such employees also continue to remain in employment on the effective date - it is relevant to note only the ATM and Cash management businesses of the Transferor Company were transferred to the Appellant, while the remaining businesses remained with the Transferor Company. Therefore, it is impractical and inconceivable to interpret the Scheme to mean that all employees of the Transferor Company stood transferred to the Appellant on the Effective Date. The Miscellaneous application was barred by limitation as was filed after about five years of the implementation of the Scheme in 2011. The impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent No.1 information about the demerger of ATM and Cash Division of CMS Securitas Ltd, i.e., Respondent No.2. It is alleged no such information was ever provided despite requests. The learned counsel for Respondent No.1 also referred to various clauses of the Agreement as under:- 1.8 ATM and Cash Management division or the Demerged Undertaking means all the businesses, undertakings, properties and liabilities of whatsoever nature and kind and wheresoever situate of CMS Securities pertaining to its ATM and cash management business, on a going concern basis, together with all their assets and liabilities and shall means and include (without limitation) the following: 1.8.2 all the movable assets, properties, resources, facilities, utilities and services including without limitation all equipment, plant and machinery, utilities vehicles, furniture and fixtures, office equipment, computer systems and peripherals systems, implements, apparatus, instruments, spares, tools, fittings, communication facilities and capital work in progress and such other tangible movable property, as may be decided by the Board of Directors, which are engaged, deployed, employed or used in and perta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or carry out all formalities required on the part of CMS Securitas to give effect to the provisions of this Scheme. 5. It was argued by the learned counsel for Respondent No.1 all these clauses referred to above mean the entire business with all its staff etc had merged with Transferor company, including all employees. It was argued the ROC had also interpreted the scheme in similar manner viz. the entire manpower is taken over by the appellant. 6. Thus the main crux of the argument of the Respondent No.1 union is it was made aware of the demerger being undertaken by way of Scheme, only by its certain well wishers who provided it with relevant information in 2016. 7. We have heard the appellant and respondents and perused the records. On the issue of R-1 not being aware of the Scheme, contrary to the submissions made by Respondent No.1 we find on 07.07.2009 the appellant had published date of hearing of the Scheme Petition in two local newspapers, one in English and one in Marathi putting the Scheme in public domain. Public notices and advertisements were issued in terms of the mandate of Chapter XV of Companies Act, 2013. 8. Though the Respondent No.1 by its letters dated 13.04.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement dated 17 February 2011 (Annexure 28, Ia for additional documents @ pg 1863, Vol.IX) 3 Chandigarh Memorandum of Settlement dated 8th May, 2012 (annexure 29 @ pg. 1879, Vol.IX) 4 Pune Memorandum of Settlement dated 11 April, 2015 (Annexure 30, IA for additional Documents @ pg 1895 vol.IX) 5 Mumbai Memorandum of Understanding dated 17 April, 2015 (Annexure 10 (colly) @ pg. 1165, Vol.VI) 6 Chandigarh Memorandum of Understanding dated 19 June 2015 (Annexure 31, IA for additional documents @ pg 1901, vol. IX) 11. Pertinently, even after filing of the Miscellaneous Application for the employees at the Mumbai undertaking of the Respondent No. 2- Transferor Company, who are members of Respondent No. 1, the Respondent No. 1 has continued to negotiate and enter into agreements for and on behalf of employees of Respondent No. 2 who are members of Respondent No. 1 at Pune and Chandigarh. The details of such settlements are as under : S. No. Location Particulars of Agreement 1. Pune Memorandum of Settlement dated 12 December 2019 (Annexure 32, IA for Additional Documents @ pg 1906, vol. IX) 2. Pune Memorandum of Understanding dated 08 October 2021 (Annexure 33, IA for Additional Documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their employment with CMS Info Systems shall not be less favorable than those applicable to them in CMS Securitas on the Effective Date. 16. In terms of the said clause, the Board of Directors of the Transferor company i.e. Respondent No.2, passed a Resolution at the Board Meeting held on 1.4.2011 identifying such employees for the purposes of the transfer, as a consequence of which, their employment stood transferred to the transferee company, while the rest of the employees continued to remain on the payroll of the transferor company. Pertinently after the approval and implementation of the Scheme, the employee-members of the Respondent No.1 Union from Mumbai Region as well as all other employees of the transferor company across other regions accepted the Scheme and raised no grievance regarding the transfer of 45 employees as identified by the Board of Directors. 17. In 2016, the members of Respondent No.1 Union who were employed with Respondent No.2 resorted to flash strikes and various unfair labour practices as a result of which the appellant lost out on several clients and suffered a huge detriment to its business and was forced to close down all its four undertakings in Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... men not so identified by the Board continued in the service of the transferor company, None of such persons were abandoned/retrenched when the said Scheme was put into operation. Rather the Transferor company and the Transferee company executed Manpower Supply Agreements whereunder the Transferee company utilised the services provided by the workmen of the Transferor company. The purpose of the Scheme was not to retrench any of the staff, employees of the Transferor company and the record would show such persons continued to be in service of the Transferor company on terms which were not in any manner less favourable to those available to the employees of the Appellant. 22. The records reveals the Scheme was fully implemented in April 2011 to the knowledge of Respondent No.1 union and thereafter there have been multiple wage settlements entered into for benefit of Respondent No.1 after the implementation of the Scheme and there were no objections to the implementation thereafter. As stated the entire problem started in 2015 when the Members of Respondent No.1 resorted to flash strikes without any justifiable reasons and without any notice at four undertakings of the Appellant in Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
