Gujarat High Court
Rajeshbhai Naranbhai Danabhai Leuva vs Official Liquidator Of Ahmedabad ... on 27 April, 2015
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
O/COMA/305/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 305 of 2014
In
COMPANY PETITION NO. 157 of 1995
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RAJESHBHAI NARANBHAI DANABHAI LEUVA....Applicant
Versus
OFFICIAL LIQUIDATOR OF AHMEDABAD MANUFACTURING AND CALICO
PRINTING MILLS CO. LTD & 11....Respondents
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Appearance:
MR DS VASAVADA, ADVOCATE for the Applicant
MS AMEE YAJNIK, ADVOCATE for the Respondent No. 1
NOTICE SERVED for the Respondents No. 11 - 12
NOTICE SERVED BY DS for the Respondents No. 2- , 5 - 7, 9 - 10
NOTICE UNSERVED for the Respondents No. 4 , 8
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 27/04/2015
ORAL ORDER
1. The Judge's Summons have been taken out by the applicant seeking following reliefs;
(A) Be pleased to direct the Official Liquidator to pay an amount of Rs.1,98,562.31 minus Rs.45,462/- equivalent to Rs.1,53,100.31 which is to be paid to the deceased mother of the applicant;
(B) Be pleased to direct the Official Liquidator pay the interest over that amount @ 12% as there is apparent error on the part of the Official Liquidator;
(C) Be pleased to dispense with the issuance of Notice to other respondents except Official Liquidator;
(D) Any other and further relief/s as may be deemed fit and proper may please be granted.
Page 1 of 5O/COMA/305/2014 ORDER
2. The following averments are required to be reproduced from the affidavit in support of the Judge's Summons, which would be clearly indicative of the purpose of filing this application.
Para-1. My mother Savitaben Leuva was working as a Mender in Mending Department of the Calico Mills Ltd. (in Liquidation). She joined her services on 17.12.1958. The mill was closed down on 31.10.1994 and the winding up order was passed on 16.07.1998.
2. I further state that I have been given to understand that as per the guidelines issued by the High Court in the matter of the Textile Labour Association Vs. O.L. of Jubilee Mills, the following dues are payable to the workmen under section 529 and section 529A of the Companies Act, 1956. As per these guidelines, my deceased mother is entitled to receive the following amount:
(i) wages upto the date of winding up order, i.e. from 1.10.1994 till 16.7.1998 @ Rs.75.77 per day into 1318 days equivalent to Rs.1,04,638.31;
(ii) gratuity from 17.12.1958 till 16.7.1998 equivalent to 20 months' wages into Rs.22.73 monthly salary equivalent to Rs.45,462/-;
(iii) retrenchment compensation from 17.12.1958 till 16.07.1998 equivalent to 20 months' wages into Rs.22.73 monthly salary equivalent to Rs.45,462/-;
(iv) 40 days' privilege leave-Rs.3,000/-
The sum total of total dues is Rs.1,98,562.31 minus Rs.45,462/- equivalent to Rs.1,53,100.31.
3. I say and submit that the Textile Labour Association has lodged the claim on behalf of my deceased mother. My deceased mother being illiterate never knew the exact amount of claim lodged by the Official Liquidator. However, when first installment was paid, my mother was informed that she will be paid the rest of the amount when the properties Page 2 of 5 O/COMA/305/2014 ORDER are realized. My mother was paid an amount of Rs.45,462/-.
4. I further state that subsequent installments were not paid to my mother. However, my mother has never resigned, never left service or never abandoned the service. It is equally pertinent to note that in October 1994, my mother was on duty and the mill was closed down in October 1994. I have already produced the pay slips to the Official Liquidator, but the Official Liquidator informed me that unless and until there is an order of the Court, he cannot re-verify the claim.
5. I further state that my mother's name has been included in the 'B' Category of the Muster Roll. When I inquired with the office of the Official Liquidator, I was given to understand that 'B' Category of the Muster Roll is for those who tendered the resignations or who have retired from the employment. But as a matter of fact, my mother never tendered the resignation and this can be proved by the following facts:
5.1 I also state that my mother was actually working till the date of closure and she was also paid the wages in October 1994. This is clear from the copy of the pay slips and thereafter my mother has never gone to the mills company and therefore, the question of resignation does not arise. I, therefore, emphatically state on oath that my mother has never resigned. Even bonus slip was also issued to my mother in October 1994. This document conclusively proves that my mother has never resigned.
5.2 I further state that in the 'B' Category Muster Roll, there is specific mention about the retirement or resignation. In case of my deceased mother, there is no mention about resignation or retirement and despite this my mother's name has been included in 'B' Category Muster Roll which is meant for those who have retired or resigned from the employment. This also evidently proves that my mother has not resigned till she died.
6. I further state that I also pursued the matter with the Official Liquidator who was kind enough to apprise me about his Page 3 of 5 O/COMA/305/2014 ORDER position. On 21.2.2014, he informed me that he cannot re-adjudicate the claim without permission of this Court.
7. I further state that my mother passed away on 20.10.2014. She was suffering from diabetes and heart-disease.
8. I also state that these documents conclusively prove that my deceased mother has never resigned and was on the Muster Roll till the date of closure and during the period from date of closure till the date of winding up, she never resigned. It is respectfully submitted that my deceased mother was ailing for a long time and her health did not permit to take any strain. It is also proved from the contents of Annexure-B which is the extract of 'B' Category Muster Roll that she has never resigned. I, therefore, sucbmit that the Chartered Accountant should be directed to re-verify the claim and I am still in possession of all relevant documents which prove that my mother was on job on last day of the closure.
9. I also state that as far as interest part is concerned, there is apparent mistake on the part of the Official Liquidator and, therefore, appropriate interest should also be paid. I also state that other workers and similarly situated workers are paid almost 98% of the total dues and therefore, I may also be paid the same amount to put my case on line with similarly situated workmen.
10. I also state that since the secured creditors in the present case are not much necessary party, they may not be issued Notice in order to avoid the delay.
11. I also state that ONGC is not impleaded as party because it has been held to be unsecured creditors under the order of the Hon'ble Supreme Court which has been reported in (2014) 5 SCALE 190. Even the review petition is also dismissed by the Supreme Court.
12. I say and submit that we are two brothers only and my younger brother has also authorized me to file the present Judge's Summons and he has also stated on Page 4 of 5 O/COMA/305/2014 ORDER oath that he has no objection if the amount is shared equally or I receive the 100% amount.
3. In view of the above, the Official Liquidator shall supply copies of the claim made on behalf of the deceased lady, who said to have not resigned or relieved and whose pay slips have been placed on record at page no.12 onwards, for examining the claim, as the Official Liquidator had on earlier occasion rejected this request as there was no order of the Court. The entire exercise should be over within six weeks from today. The Official Liquidator shall file report after obtaining necessary details.
4. In view thereof, the present application is disposed of.
(S.R.BRAHMBHATT, J.) Pankaj Page 5 of 5