Gujarat High Court
G S I C Karmachari Union vs Official Liquidator on 2 December, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/COMA/39/2015 ORDER DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/COMPANY APPLICATION NO. 39 of 2015
In
R/COMPANY PETITION NO. 146 of 2006
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G S I C KARMACHARI UNION & 3 other(s)
Versus
OFFICIAL LIQUIDATOR & 2 other(s)
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Appearance:
MR PRABHAKAR UPADYAY(1060) for the Applicant(s) No. 1,2,3,4
MR KURVEN DESAI, AGP for the Respondent(s) No. 2,3
MR PATHIK M ACHARYA(3520) for the Respondent(s) No. 1
OFFICIAL LIQUIDATOR(16) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 02/12/2021
ORAL ORDER
Heard learned advocate Mr.Prabhakar Upadhyay for the applicants, learned advocate Mr.Pathik M. Acharya for the respondent No.1 and learned Assistant Government Pleader Mr.Kurven Desai for the respondent Nos.2 and 3.
1. By this application, the applicants have prayed for the following reliefs :
"(A) YOUR LORDSHIPS may kindly be pleased to direct the respondent Official Liquidator to verify the claim submitted by the present applicants and further be pleased to direct the respondent Official Liquidator to disburse the amount to the concerned employees / workers as per the provisions of the Companies Act, 1956.
(B) Your Lordships may kindly be pleased to pass such other and further order/s as deemed fit, just and proper in the interest of justice."Page 1 of 6 Downloaded on : Wed Jan 12 06:34:22 IST 2022
C/COMA/39/2015 ORDER DATED: 02/12/2021 2.1. Learned advocate Mr.Prabhakar Upadhyay appearing for the applicants submitted that the applicants are Registered Trade union, registered under the provisions of the Trade Union Act, 1926 representing the ex-employees of the Gujarat Small Industries Corporation Limited (in liquidation).
2.2. It was pointed out that the employees of the Company in liquidation were entitled to the benefit of pay scales declared by the State Government as per the recommendation of the different pay commissions from time to time.
2.3. It was submitted that the recommendation of the 5th pay commission for interim-relief to the ex-employees of the Company (in liquidation) were accepted by the State Government at the relevant point of time and the Finance Department of the State Government passed resolution dated 16.08.1994, 01.08.1995 and 29.08.1996 whereby, the first, second and third installment of interim relief was granted.
3. It appears that the respondent Nos.2 and 3- State Government by order dated 9th June, 1999 sanctioned the voluntary retirement scheme for the ex-employees of the company (in liquidation) and one of the conditions for implementation of voluntary retirement scheme was stipulated to the effect that for the purpose of calculating the Page 2 of 6 Downloaded on : Wed Jan 12 06:34:22 IST 2022 C/COMA/39/2015 ORDER DATED: 02/12/2021 salary of the Ex-Officers/Employees of the company (in liquidation), the pay would be notional as per the 5th pay commission as on 1st January, 1996 and no arrears would be payable for the period from 1st January, 1996 till granting of voluntary retirement.
4. The aforesaid order passed by the State Government was challenged before this Court by filing Special Civil Application Nos.9776 of 1998, 11394 of 2000 and 9429 of 1998 which were dismissed by two separate orders dated 06.05.2010 and 07.07.2010. The Letters Patent Appeal No.2591 of 2010 was also dismissed by the Division Bench of this Court by order dated 25.02.2011. The matter was carried before the Apex Court and the Supreme Court by order dated 06.02.2013 dismissed the Special Leave to Appeal (Civil) No. CC 9535 of 2013.
5. It appears that meanwhile, the company (in liquidation) was ordered to be wound up and therefore, the applicants preferred the claim before the Official Liquidator including the arrears from 1st January, 1996 which was otherwise not granted to them in view of the order dated 9 th June, 1999 passed by the State Government sanctioning the voluntary retirement scheme.
6. Learned advocate Mr.Upadhyay submitted that at the relevant point of time while sanctioning Page 3 of 6 Downloaded on : Wed Jan 12 06:34:22 IST 2022 C/COMA/39/2015 ORDER DATED: 02/12/2021 the voluntary retirement scheme, the State Government considered the financial condition of the company (in liquidation) and therefore, arrears from 1st January, 1996 till the date of voluntary retirement scheme as per the 5th pay commission recommendations was not granted. It was submitted that as on today the Official Liquidator has sufficient funds to grant such arrears and therefore, the applicants have made their claim for directing the Official Liquidator to pay the arrears from 1st January, 1996 till voluntary retirement was granted to the applicants.
7. On the other hand, learned advocate Mr.Acharya appearing for the Official Liquidator submitted that applicants are not entitled to any amount towards claim of arrears and referred to the verification report dated 22.06.2015 received from M/s. Amal Datt and Associate Chartered Accountants wherein, it is observed as under :
"A. Claim of Worker Union for Arrears of Fifth pay Commission The Company had offered a voluntary retirement scheme (VRS) to their workers before going in to liquidation.
Most of the workers had opted for VRS and were paid as per VRS and relieved. Now, their claim is for arrears of Fifth Pay Commission. As per the details available, the Company was adopting pay scales of Government of Gujarat. The Company decided in its board meeting dated 31.03.1998 to implement the recommendation of Fifth Pay Commission and sought permission of the Government of Gujarat as the Company is a Gujarat State undertaking. The Government of Gujarat has not approved the decision of the Company to pay arrears of the Fifth Pay Commission. Aggrieved by the decision of Government of Gujarat, unions filed appeals Page 4 of 6 Downloaded on : Wed Jan 12 06:34:22 IST 2022 C/COMA/39/2015 ORDER DATED: 02/12/2021 (SCA No. 9778 of 1998 and SCA No. 11394 of 2000) before High Court of Gujarat, which was dismissed by the High Court on 07.07.2010. Unions then filed a Special Leave Petition before the Supreme Court. Since the Hon'ble Supreme Court has dismissed the petition, no amount is due to workers for arrears."
8. Learned Assistant Government Pleader Mr.Desai relied upon the affidavit-in-reply filed on behalf of the respondent No.2 and submitted that as the claim for arrears made by the applicants as per the 5th pay commission recommendations is already denied as a condition precedent to grant voluntary retirement scheme and such decision of the State Government is confirmed up to the Supreme Court, at this stage, the applicants cannot be permitted to raise their demand of payment of arrears under the 5th pay commission recommendation as it would amount to sitting in the Appeal over the decisions taken by this Court as well as the Supreme Court.
9. Considering the above submissions and facts emerging from the record, it appears that the decision of the State Government sanctioning the voluntary retirement scheme in the year 1999 has achieved finality as the same was challenged before this Court by preferring Special Civil Applications which were dismissed and decision of the learned single judge is confirmed up to the Supreme Court.
10. In view of the above undisputed facts, the applicants cannot be granted arrears as 5th pay Page 5 of 6 Downloaded on : Wed Jan 12 06:34:22 IST 2022 C/COMA/39/2015 ORDER DATED: 02/12/2021 commission recommendations from 01.01.1996 till the date of granting voluntary retirement. This aspect is also considered by the Chartered Accountant in the report as stated hereinabove.
11. In such circumstances, the application is devoid of any merit and is accordingly disposed of so far as the arrears of 5th pay commission recommendation is concerned. The official liquidator is directed to consider the other claims of the workers if any after ignoring the claim of arrears of 5th pay commission which is claimed by the workers of the applicant Union and process the same as expeditiously as possible and file a further report after obtaining a verification report from the Chartered Accountant in this respect. Notice is discharged.
(BHARGAV D. KARIA, J) PALAK Page 6 of 6 Downloaded on : Wed Jan 12 06:34:22 IST 2022