Court No. - 28 Case :- WRIT - C No. - 1101 of 2005 Petitioner :- Naini Glass Works Mazdoor Union Naini Alld.Thru'President Respondent :- State Of U.P.& Others Petitioner Counsel :- H.P. Pandey Respondent Counsel :- C.S.C.,A.K. Bajpai,Ashish Chaturvedi,Ashish Chitranshi,Dr. V.K. Rai,H.R. Mishra,K.M. Mishra,Sankatha Rai,Shashi Nandan,V.K. Rai Hon'ble Bala Krishna Narayana,J.
Heard Sri H.N.Pandey learned counsel for the petitioner , learned
standing counsel for respondent Nos. 1,2,3 and 5, Sri Anil Bajpayee for
respondent No.4 and Sri T.P.Singh Senior Advocate, assisted by Sri
Siddharth learned counsel for respondent nos. 6 and 7.
The relevant facts of the case are that Naini Glass Works Private Limited
respondent no.4 is a company registered under the ‘Companies Act’
having its factory and head office at 92 Chak Ataullah Naini, Allahabad.
Due to shortage of coal which is the primary requirement for functioning
the furnaces meant for melting the glasses and other factors, it became
impossible for the company to run the glass factory. As consequence in
March 1978 the company was left with no option but to close down the
furnaces and stop manufacturing process in the company with effect
from 25th March 1978 and lay off the workmen
on account of non supply of coal. Accordingly a notice of lay off was
given to the workmen on 24.3.1978 . The lay off continued from time to
time by further notices. However, eventually the application moved on
behalf of respondent no.4 for permission to lay off for the period
24.3.1978 to 7.5.1978 was rejected illegally by the labour commissioner.
Upon receiving the order of the labour commissioner dated 7.5.1978 the
respondent no.4 again moved an application on 9.5.1978 for permission
of lay off in the prescribed format for the subsequent periods 8.5.1978,
8.7.1978, 8.7.1978 10.9.1978 to 30.11.1978 on 8.5.1978, 5.7.78 and
17.11.1978. The said applications remained pending before the Deputy
Labour Commissioner but when the respondent no.4 failed to arrange
finance for re-opening the factory, the respondent no.4 gave notice on
5.10.1977 for closure of the factory. Thereafter the Deputy labour
commissioner issued letters to the respondent no.4 on 27.10.1977
purporting to be under Section 4 of the U.P. Industrial Peace and timely
payment of Wages Act 1978, (U.P. Act No.5 of 1974), requiring the
respondent no.4 to produce the records pertaining to the wages to the
workmen, upon receiving the said notice the respondent no.4 produced
the record pertaining to the wages of the workmen and filed statements
showing the amount payable as wages and lay off compensation. The
deputy labour commissioner thereafter issued a recovery certificate to
the collector/ District Magistrate, Allahabad under Section 3 of the
U.P .Act No.5 of 1978 requiring him to recover a sum of Rs.4,80,000/ as
arrears of wages payable to workmen employed in the establishment of
respondent no.4. The respondent no.4 challenged the said recovery
certificate before this court in Civil Misc. Writ Petition No.504/1978 and
obtained an interim order. It appears that the said writ petition was
dismissed in default on 6.5.2003. Where -after Naini Glass Works
Majdoor Union Naini, Allahabad filed the instant writ petition before
this Court for following reliefs:
“1) issue a writ order or direction in the nature of mandaums directing the
District Magistrate Allahabad to recover the outstanding dues Rs.5,28,000/ as
Land Revenue.
2. issue a writ order or direction in the nature of mandamus directing the
Deputy Labour Commissioner Allahabad to issue a fresh recovery certificate
for realising of the outstanding dues.
3. issue a writ order or direction in the nature of mandamus directing the
District Magistrate, Allahabad to ensure that the possession of the Factory site
situated plot no. 80 and 81 village Chak Lal Mohammad may not be handed
over to any one till the clearance of the employees outstanding dues and other
consequential benefits.
4. issue any other writ order or direction as this Hon’ble Court may deem fit
and proper in the circumstances of the case.
5. award the cost of thee writ petition to the petitioner ”
In the said writ petition following interim order was passed
by this Court on 11.5.2005
” Hon.Arun Tandon J.
From the record it is apparent that an order was passed by the Deputy
Labour Commissioner, Alahabad(respondent no.3) dated 6th November
1978(Annexure 3 to the writ petition) requesting the District Magistrate
Allahabad (respondent no.2) to recover a sum of Rs.4,80,000/ under the
provisions of U.P.Act No.5 of 1978 as arrears of land revenue. The said
order was challenged by M/s Naini Glass Works Proctor Ltd, Naini,
Allahabad by means of the writ petition no.504 of 1979. The writ petition
was dismissed under order of this Court dated 6th may 2003. On
dismissal of the said writ petition the petitioner again approached the
District Magistrate to enforce the recovery in terms of the recovery
certificate issued by the Deputy labour Commissioner dated 6th
November 1978.
It is surprising till date the District Magistrate , Allahabad has not taken
any step for enforcing the said recovery against the employers.
List on 19th May 2005.
Learned standing counsel is directed to to file an affidavit of the District
Magistrate, Allahabad or some other responsible officers of the State of
U.P. categorically disclosing as to why the recovery in pursuance of the
recovery certificate issued by the Deputy Labour Commissioner dated
6th November 1978, has not been enforced till date.
A copy of this order shall be supplied to the learned standing counsel by
tomorrow i.e. 12.5.2005.
11.5.2005″
Pursuant to the aforesaid order plot nos. 80-81 situated in Chak Ata
Ullah, Pargana Arail, Tehsil Karchhana, District Allahabad, ( hereinafter
referred to as the ‘disputed plots’), were put to auction sale. However,
before the auction could take place an application was moved on behalf
of Sahyog Sahkari Samiti and its Secretary yadunath for being
impleaded as respondent nos. 6 and 7 in the writ petition on the ground
that they were bonafide purchasers of the disputed plots in redemption of
mortgage created by directors of respondent no.4 who were the owners of
the disputed plots in favour of the State Bank of India, for securing loan
obtained by the respondent no.4 company. The said application was
allowed. The Society and its Secretary Yadunath were impleaded as as
respondent nos. 6 and 7 and thereafter on a statement of counsel for the
newly impleaded respondent nos. 6 and 7 before this Court an order
dated 10.11.2005 staying the auction sale of the disputed plots which was
scheduled to take place on 14.11.2005 was passed subject to the
respondents no.6 and 7 depositing the entire amount due to the
respondent no.4 the petitioner of writ petition No.11101/2005 within a
week.
Pursuant to the aforesaid order the respondent no.6 deposited the sum of
Rs.5 lacs with the District Magistrate/Collector Allahabad. The
respondent nos. 6 and 7 allege that the respondent no.4 company was
never the owner of plot nos 80 and 81. and the said plots belonged to the
directors of the company, who had jointly mortgaged the disputed plots
with the State Bank of India as security for the repayment of the loan
obtained by the Company.
The aforesaid loan could not be repaid and there was a default in the
repayment of the loan amount. In order to liquidate the outstanding dues
the directors of the respondent no.4 entered into a registered agreement
for sale of the disputed plots on 6.10.1999 with the respondent no.6 on the
condition that the respondent no.6 will deposit the amount of Rs.25 lacs
which was outstanding against the directors. The Branch Manager of the
concerned branch of the State Bank of India, was also informed of the
manner in which the directors proposed to clear outstanding dues i.e. 25
lacs would be deposited by the respondent no.6 and balance of Rs.4.7 lacs
would be paid by the directors of the company who were the owners of
the land and the State Bank of India accepted the proposal forwarded by
the directors and entered into an agreement with the directors of the
respondent no.4 company on 23.2.2003 agreeing under one time
settlement on payment of Rs.29.7 lacs to the bank by the directors. The
entire amount was deposited in the bank against the loan whereupon no
dues certificate was issued by the Bank. The disputed plots were
transferred by the directors of the respondent no.4 in favour of
respondent no.6 by sale deed dated 9.7.2001. The respondent no.6 after
getting its name mutated in the revenue records sub divided the disputed
plots into several sub plots and transferred them in favour of different
persons and the names of the transferees were also mutated over the
respective plots purchased by them.
Leaned counsel for the petitioner has submitted that the dues of the
employees of the respondent no.4 are liable to be recovered from the sale
of the disputed plots. He has further stated that the claim put forward by
the respondent nos. 6 and 7 that the disputed plots did not belong to the
company but are the personal properties of the directors of the company,
is absolutely false and incorrect. He further submitted that the disputed
plots were deliberately transferred by the directors of the respondent
no.4 to avoid the payment of lawful dues of the workmen of respondent
no.4.
Learned counsel for the petitioner also submitted that the dues which
have been sought to be recovered relate to the period prior to the date on
which the disputed plots were transferred in favour of respondent nos 6
and 7 and even if it is assumed though without admitting that the owner
of the disputed plots are the directors even then the recovery of dues
from the directors of the company in several cases has been permitted to
be made and thus the arrears of the wages of the workmen of the
respondent no.4 company are liable to be recovered from the disputed
plots.
Sri T.P.Singh learned counsel for the respondent no.6 and 7 vehemently
urged that the respondent no.6 is
bonafide purchaser of the disputed plots for valuable consideration and
the outstanding dues of the employees of the respondent no.4 can not be
recovered from the disputed plots.
Sri T.P.Singh next submitted that whether charge created on the
disputed plots for payment of the arrears of wages of the employees of
the respondent no.4 can not be enforced against the respondent no.6 who
is a transferee of the disputed plots and being a bonafide purchaser for
valuable consideration, is entitled to get benefit of Section 15(1)(g) of the
Transfer of Property Act.
After considering the submissions made by the learned counsel for the
parties and perused the record of the writ petition I am of the view that
the submissions raised by the learned counsel for the parties raise an
issue of fact with regard to the ownership of the disputed plots which
requires taking of evidence and writ proceedings are not the appropriate
forum for deciding the said issues.
The main question which is to be decided is that – whether disputed plots
were the self acquired properties of the directors of the company or the
company was the owner thereof. There is no material on record filed by
either of the parties on the basis of which the court may decide the said
issue.
In my opinion the Collector/ District Magistrate, Allahabad who is
executing the impugned recovery certificate issued by the deputy labour
commissioner under section 3 of the Act No.3 (Timely Payment of wages
Act 1979) can look into the question and decide the same after affording
opportunity to all concerned to lead evidence in support of their
respective claims. The amount of Rs.5 lacs which has been deposited by
the respondent no.4 pursuant to the order of this Court dated 14.11.2005
with the collector/district magistrate, Allahabad shall be kept by him till
the matter is decided by the collector/district magistrate.
With the consent of learned counsel for the parties, this writ petition is
finally disposed of with the following directions:
1.The petitioner as well as the respondent Nos. 4 and 6 Sahyog Sahkari
Samiti shall set up their respective claims by filing representations before
the respondent no.2 collector/ district magistrate, Allahabad within a
period of two weeks from the date of issue of certified copy of this order ,
raising all the grievances which have been raised by them before this
Court alongwith the material on which they propose to rely.
2. The respondent no.2 shall issue notice to the State Bank of India
requiring the Manager of the concerned Branch to produce the mortgage
deed executed by the directors of the company for securing loan obtained
by them in respect of the plot nos. 80 and 81 situated in chak Ata Ullah
Naini, Pargana Arail, Tehsil Karchhana, District Allahabad.
3. The respondent no.2 shall consider the matter in accordance with law
and decide the same by a reasoned and speaking order within a period of
three months from the date of filing of representations as indicated
herein above.
It is made clear that if any constructions are raised by the transferees
from the respondent no.7 on the disputed plots, the same shall be at their
own risk and shall abide with the final orders which may be passed in the
matter by the collector/district magistrate, Allahabad.
Order Date :- 2.4.2010
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