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24. The main contention of the learned counsel for the applicant is that the Companies Act specifies only one date till the dues are to be calculated i.e. the date of order of winding up as provided in Section 445 (3) of the Companies Act and no other contingency is provided under the Act. While it is the submission of the learned counsel for the Official Liquidator and the learned counsel appearing for the respondent Nos.2 & 3 that Section 445 is a deeming fiction and date of winding up is only one of the contingencies that is contemplated under the Companies Act and in the facts of the present case, the date of appointment of Provisional Liquidator with full powers has to be considered as the relevant date. The date of winding up is 5 September 2005 and date of appointment of Provisional Liquidator is 13 February 2002 Arguments are also advanced regarding the wages to be paid and the claim of Badli workers.

CA487-12 in CP385-02.doc The Relevant Date.

26. The learned counsel for the applicant Ms. Jane Cox has made the following submissions:

(a) When the Mill was closed in September 2001 no application made by the Company to the State Government for permission to close or retrench the employees as per Section 25-O / 25-N of the Industrial Disputes Act 1947 and the closure/retrenchment is illegal and in violation of the said mandatory provisions of the Act. As per Section 25-O(6) and Section 25-N(7) of the Industrial Disputes Act, 1947. Therefore the employees are entitled to all of the wages and benefits under any law for the time being in force as if there had been no closure/retrenchment and be paid "Workman's dues" under section 529A with section 529(3). The deeming fiction under section 25(O) (6) must be carried to its logical conclusion.

44. The learned counsel for the respondent Nos.2 and 3 submitted that Section 445 (3) is merely a deeming provision. It is submitted that a deeming fiction does not exclude the possibility of an event actually occurring earlier. It was submitted that sub-

section 445(3) only refers to the order of winding up being deemed discharge. The deemed discharge would operate only in absence of any other actual event causing cessation of employment like the Provisional Liquidator with full powers as in the present case. It is submitted that Section 445(3) only provides an outer limit but does not mean that employment cannot cease prior to that date. Reliance is placed on the decision of the English Appeal Court in the case of Carne & Anr. Vs. Debono4 . The relevant observations of the Appeal Court as under -

47. Section 445(3) clarifies that unless the business of the Company is continued, the order of winding up shall be deemed to be a notice of discharge. It states that no separate notice for discharge is necessary and order of winding up is good enough and will be deemed to be a notice. The fiction that section 445(3) creates is that 'order' of winding up will be treated as 'notice' of discharge. What the Section says is that the order or winding up is CA487-12 in CP385-02.doc cessation of service unless the business is continued. Thus the workers are put to notice that unless business is continued their services will be treated as coming to an end from the date of winding up and no separate notice is necessary. It is in this context the deeming fiction is to be read.