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COMA/124/2010 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 124 of 2010
In
COMPANY
PETITION No. 2 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
ASHOK
GYANCHAND JODHANI - Applicant(s)
Versus
NANARAM
SHOBHRAJ MILLS LTD & 1 - Respondent(s)
=========================================
Appearance :
MR
ND SONGARA for
Applicant(s) : 1,
None for Respondent(s) : 1,
OFFICIAL
LIQUIDATOR for Respondent(s) : 2,
MR JS YADAV for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 10/05/2010
ORAL
JUDGMENT
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
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