Calcutta High Court
Scott & Saxby Limited Shramik Union & Anr vs Union Of India & Ors on 26 February, 2014
Author: Patherya
Bench: Patherya
ORDER SHEET
CA No.362 of 2012
CP No.351 of 2006
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
IN THE MATTER OF:
SCOTT & SAXBY LIMITED SHRAMIK UNION & ANR.
Versus
UNION OF INDIA & ORS.
BEFORE:
The Hon'ble JUSTICE PATHERYA
Date : 26th February, 2014.
Mr. Reetobroto Mitra for the applicants.
Mr.Bhaskar Prasad Banerjee for Union of India Ms.Ruma Sikdar for Official Liquidator.
The Court : This application has been filed by the workers who are 67 in number for payment of their dues. The case of the applicants is that they worked with Scott and Saxby Limited, a company which was by order dated 4th December, 2008 directed to be wound up. Subsequent thereto an application was filed by a contributory and the order of winding up was stayed upon payment of Rs.1,53,000/- to the petitioning creditor. Subsequently the contributory was not desirous of pressing his application and therefore, the winding up order revived and the earlier order staying the winding up proceedings stood vacated. The workers who are applicants herein have relied on the restructuring proposal of the Central Government dated 30th September, 2009. This restructuring proposal was after passing of the order of winding up in December, 2008. Therefore, the restructuring proposal of the Central Government could not be implemented under Section 25(o) of the Industrial Disputes Act, 1947 as pursuant to order dated 18th November, 2009 the winding up order revived and the Official Liquidator took possession of the registered office so also all books, documents, assets and properties of the company (in liquidation). In fact, the Official Liquidator 2 has also sold some of the movable assets of the company (in liquidation) and has funds in its hands. But the applicants are not concerned with the moneys in the hands of the Official Liquidator and seek orders pursuant to the restructuring proposal dated 30th September, 2009 and seek that the employees of the company (in liquidation) be treated on par with the employees of KDCL which has also been wound up and the employees absorbed in OMDC. Such employees have been paid their regular salary and other service benefits so also dues in KDCL which have been cleared by OMDC. On this parity as payments have been made to the employees of KDCL on absorption payments be also made to the employees of the company (in liquidation).
The application is opposed by the Official Liquidator who submits that as after the order dated 18th November, 2009 possession has been taken of all the assets and properties of the company (in liquidation) and the same have also been sold, funds are lying and claims have been invited on 17th February, 2014 which claims are to be lodged by 20th March, 2014.
Counsel for the Central Government submits that the principles applicable to the employees of KDCL who have been absorbed in OMDC cannot be made applicable to the employees of the company (in liquidation) as a winding up order was passed on 4th December, 2008 by the Calcutta High Court. In the case of KDCL a winding up order was passed under Section 25(o) of the Industrial Disputes Act, 1947 and therefore, the restructuring proposal was implemented as it postulated voluntary winding up under the 1947 Act. As two separate procedures are contemplated under the 1956 Act and the 1947 Act and both being distinct and separate, the Central Government cannot bear the liability of payment to the employees of the company in (liquidation).
Having considered the submissions of the parties the order of winding up was passed on 4th December, 2008 i.e. much prior to the restructuring proposal suggested by the Central Government on 30th September, 2009. The restructuring proposal specifically provided for winding up of the company (in 3 liquidation) and KDCL. KDCL was wound up under the Industrial Disputes Act, 1947 but not the company (in liquidation). As per the restructuring proposal some of the employees who did not retire or had not died were absorbed by OMDC. The winding up of KDCL and the company (in liquidation) are under two separate and distinct Acts and while under the 1956 Act on the passing of a winding up order it is the Official Liquidator who takes possession of the books, records and properties so also assets of the company (in liquidation) and it is in liquidation proceedings that the claims are satisfied. This is not the procedure followed under the 1947 Act. Admittedly the winding up proceeding followed in respect of KDCL is under the 1947 Act and therefore, the restructuring proposal would be attracted while in the case of the company (in liquidation) and the 1956 Act the proceedings mentioned therein would apply. Therefore, the employees of KDCL and the company (in liquidation) for realisation of their dues cannot be treated on par. It is for this distinction drawn between the two sets of employees no direction can be given to the Central Government to pay the dues of the employees of the company (in liquidation). It will, however, be open to the employees of the company(in liquidation) to approach the Official Liquidator for payment of its dues and for such purpose claims be lodged by the applicants who are employees of the company (in liquidation) with the Official Liquidator by 20th March, 2014. This direction for lodging of claims is passed on the basis of submission made by Counsel for the Official Liquidator that claims have been called by advertisement dated 17th February, 2014 within a month.
In view of the aforesaid, this application is disposed of. All parties to act on a photostat signed copy of this order on the usual undertakings.
( PATHERYA, J.) pa