Ashok vs Nanaram

1. Present Judges Summons has been taken out by the applicant Ashok Gyanchand Jodhani -Ex-Workmen of Company in liquidation i.e. The Nanaram Shobhraj Mills Limited directing the Official Liquidator to verify the claim of the petitioner and to pay the amount of legal dues to the petitioner as per the orders passed by the Labour Court as well as Industrial Court, Ahmedabad.

2. It is the case on behalf of the applicant that against termination of the applicant by the respondent Company, applicant approached Labour Court by way of T.Application No.61 of 1986 challenging the order of termination and Labour Court, Ahmedabad by judgment and order dated 10.10.1993 allowed the said T.Application by directing Company to reinstate the petitioner with 50% backwages. It is submitted that against the judgment and award passed by the Labour Court, Ahmedabad dated 10.10.1993, respondent Company preferred Appeal (IC) No.131 of 1993 and it is submitted that even Workmen also preferred appeal before the Industrial Tribunal by way of Appeal (IC) No.117 of 1993. Industrial Tribunal vide judgment and order dated 30.12.1986 dismissed the appeal preferred by the Company and partly allowed the appeal preferred by the petitioner Workmen by directing to pay 100% backwages from 21.12.1985 and ordering reinstatement of the petitioner. It is the case on behalf of the petitioner that thereafter after obtaining permission from the Company Court as required under section 466 of the Companies Act, petitioner preferred Recovery Application No.394 of 1997 to recover amount under the judgment and award passed by the Labour Court further modified by the Industrial Tribunal. It is the case on behalf of the applicant that Presiding Officer, Labour Court, Ahmedabad vide judgment and order dated 12.02.2009 has allowed the said Recovery Application and directed Official Liquidator of the Company in liquidation to pay Rs.1,99,012/- to the applicant (Rs.1,98,512/- towards backwages from 21.12.1985 to September, 1994 along with cost and Rs.500 towards cost of the recovery application). Therefore, it is requested to pass an appropriate order directing Official Liquidator of the Company in liquidation to pay the said amount.

3. It is submitted by Mr.Songara, learned Advocate for the applicant that subsequently the applicant has already submitted statement of claim along with proof of debt to the Official Liquidator, still said amount has not been paid, therefore, applicant has preferred present application.

4. Having served with the notice of this application, Official Liquidator of the Company in liquidation has submitted report dated 03.05.2010. It is submitted that claim of the applicant has been verified by Official Liquidator through M/s.K.V.Mehta and Co., Chartered Accountant and as per the report submitted by the Chartered Accountant, applicant is entitled to a sum of Rs.1,50,299/-, out of which Rs.56849/- has been paid to the applicant. It is further submitted that further sum of Rs.5490/- has been paid by IDBI directly to the applicant. Therefore, it is submitted that now Rs.87890/- is due and payable to the petitioner which shall be paid to the applicant at par with the workmen of the Company in liquidation as and when said amount is paid to the workmen of the Company in liquidation.

5. Mr.Songara, learned Advocate for the applicant has disputed the amount held to be admissible and due and payable to the applicant at Rs.1,50,299/-. It is submitted that as such applicant is entitled to Rs.3,49,241/- inclusive of amount of gratuity; amount of retrenchment compensation; amount of leave salary; amount of closure and amount of backwages as per the order dated 12.02.2009 passed by the Labour Court in Recovery Application No.394 of 1997. It is submitted that Chartered Accountant and/or Official Liquidator cannot ignore and/or go beyond judgment and order passed by the Labour Court in reference and/or in recovery application. Therefore, it is submitted that an amount of Rs.62,339/- is paid to the applicant and therefore, applicant is entitled to Rs.2,86,902/- and it is requested to direct Official Liquidator to paid said amount.

6. Mr.Yadav, learned Advocate appearing for the Official Liquidator has fairly conceded that as such Official Liquidator and/or Chartered Accountant cannot go beyond the judgment and order passed by the Labour Court and/or Industrial Court and /or any other Court. Once order is passed by the Competent Court, it attains finality. Official Liquidator is required to consider the same while considering claim made by the workmen and/or any other person. As stated above, Labour Court, Ahmedabad in Recovery Application No.394 of 1997 has passed an order directing Official Liquidator to pay sum of Rs.1,99,012/- by way of backwages. Therefore, alongwith other claims like, gratuity, retrenchment compensation, leave salary, amount of closure, applicant is entitled to sum of Rs.1,99,012/- also by way of backwages for the period between 21.12.1985 to September, 1994. Therefore, amount of Rs.1,50,229/- determined by the Official Liquidator due and payable to the applicant cannot be accepted. It is held that applicant is entitled to sum of Rs.3,49,241/- out of which applicant has been paid an amount of Rs.62,339/-. Therefore, applicant is entitled for an amount of Rs.2,86,902/- which the Official Liquidator is directed to pay the same to the applicant at par with other workmen as and when any amount is paid to the workmen of the Company in liquidation.

7. Before parting with the present order, it is to be noted that from the judgment and order passed by the Labour Court, Ahmedabad in Recovery Application No.394 of 1997, it appears that though served nobody appeared on behalf of the Official Liquidator of the Company in liquidation and Recovery Application proceeded ex-parte. This Court has come across so many matters in which Official Liquidator though served, has not appeared and matters have proceeded further ex-parte and ex-parte orders are passed and matters are not defended at all. Under the circumstances, Official Liquidator is hereby directed to hold inquiry against erring Officers inclusive of Official Liquidator and submit report before this Court informing who is responsible for not appearing before the Labour Court, Ahmedabad in Recovery Applications. Aforesaid exercise be completed within a period of 8(eight) weeks from today and necessary report be submitted before this Court in the present proceedings. On submitting report, Registry is directed to place the same before this Court.

8. With these, present Company Application is disposed of.

[M.R.Shah,J.] satish Top