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TMI Blog2002 (7) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... e maintenance of status quo in respect of several quarters in the occupation of sundry ex-employees of Electronics Ltd. (in Liquidation). Possession of some of the other premises of the Company was taken over by the official liquidator as is evident from the Order passed on 7-7-1999 in CA No. 811 of 1999. Thereafter by orders dated 18-4-2000, the property, land, building, plant and machinery of the Company was ordered to be put up for sale. The reserve price was fixed at Rs. 6,47,17,600 (Rs. six crore forty seven lakh seventeen thousand and six hundred only) in consonance with the valuation made by the Union Bank of India, and concurred with by the official liquidator. It will be relevant to mention that Mr. Ramamurti had entered appearance on behalf of the Workers Union and Mr. Sanjay Parikh with Mr. Ramamurti had entered appearance on behalf of the Electronics Kamgar Union. The present applicants must, therefore, be deemed to have knowledge of the proceedings in this Court. In any event, it is not their case that they had no knowledge prior to the filing of the present application. 4. C.A. No. 1218 of 2000 was thereafter filed by the Union Bank of India seeking orders for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... staff-quarters. The absence of any remonstration at that stage is indeed conspicuous, and the applicants ought to be precluded from voicing any grievance or opposition thereto after the passage of so much time. ".......Electronics Ltd. is also the owner of a block of 48 flats bearing No. 1-C, Sundra Housing Colony, NIT, Faridabad. The occupants of these flats are given time up to 30th June, 2002 to vacate the flats peacefully and hand over vacant possession of the same to the Official Liquidator. In case they do not vacate these flats on or before 30th June, 2002, the Official Liquidator will be entitled to take police assistance and to forcibly evict the occupants in terms of the order dated 4th December, 2000. In case the occupants of these flats are prepared to peacefully vacate the premises in their occupation, they may file undertakings to this effect within a period of two months from today. Electronics Ltd. is also the owner of premises bearing No. 2-F/555, Tikona Park, NIT, Faridabad. This property consists of four flats. The orders passed with regard to the aforesaid 48 flats in Sundra Housing Colony are equally applicable to these four flats also and no further ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpressed the discomfort of his client in opposing the subject application purporting to be put forward by the fellow workers. He has stressed that the opposition has been necessitated because unless the quarters are vacated, a price reasonably close to the market value would undoubtedly not be received. In such an event the defraying of the dues of the workers, which have already been outstanding for an inordinately long time, would be held up and the maximum disbursements to them would not be achieved. Mr. Parikh, however, clarifies that his clients have no quarrel with whatever demands the other workers may raise predicated on the rights contained in the Industrial Disputes Act, 1947 ( the I.D. Act ) or any other enactment or law. He has emphasised that Mr. Tiku s clients are regretfully protecting their interests even though they may substantially defeat the interests of the majority of workers. 9. Mr. Tiku, the learned counsel for the applicants has contended that the provisions of section 445(3) of the Companies Act, 1956 ( the Act ) do not override the provisions of the I.D. Act since, had this been the intention, a non obstante clause could easily have been employed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plated by section 445(3). 11. In Rohtas Industries Ltd., In re [2000] 99 Comp. Cas. 503 (Pat.), the issue was whether the official liquidator was liable for making contributions under the Employees Provident Fund Act during the period for which the establishment was in the process of being finally wound up. The learned Single Judge of the High Court of Patna clarified in this Judgment that efforts to revive the company had been made not only by the Hon ble Supreme Court but also by the official liquidator attached to that Court. Nonetheless, despite the fact that some business had been transacted in the course of efforts to revive the establishment, the learned Judge considered these incidental and irrelevant since the primary objective was the winding up of the company. It was, therefore, held that the official liquidator was not liable to make contributions under the Provident Fund. The rationale of this judgment can be easily extrapolated to the issues that arise in the present case. The learned Single Judge was also of the opinion that the view expressed in In re, Mahalaxmi Cotton Mills Ltd. AIR 1960 Cal. 199, could be distinguished on the grounds that in the Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ews expressed by Hon ble Mr. Justice S.N. Variava, J. (as his Lordship then was) in the following paragraph : "There is no doubt that to the extent that one of the effect of winding-up is that there is a closure of an undertaking and so long as that undertaking is covered by the provisions of section 25L of the Industrial Disputes Act and an application is made by the company for winding itself up, there would be conflict between the provisions of the Companies Act; and the Industrial Disputes Act. There is in my mind not the slightest doubt that in such cases, the provisions of the Industrial Disputes Act will have to prevail. This is not only because the Industrial Disputes Act is a beneficial legislation but also because in respect of relationship between employees and employer, it is the legislation which is more special legislation; whereas in this respect, the Companies Act is merely a general legislation. There is also another reason and that is that in all such cases where the provisions of two Acts or two provisions of the same Act cannot stand together and are in conflict, then the provision which has been legislated after must always prevail. Section 25-O of the Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding up order under the Act. Nothing further should be said, since I have already observed that I do not intend to return any finding or give any observation on the validity and soundness of a claim which has or may be brought under the I.D. Act. It would be advantage, nonetheless, refer to the perspicuous decision of the Division Bench of the Calcutta High Court in Ram Hari De v. Official Liquidator 69 C.W.N. 317. Judgments, inter alia, of the Hon ble Supreme Court in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union AIR 1957 SC 95 and Barsi Light Railway Co. Ltd. v. K.N. Joglekar AIR 1957 SC 121, were relied upon in to arrive at the conclusion that a closure of business as a result of a winding-up order cannot be equated with retrenchment and does not attract compensation which can be described as retrenchment compensation . These observations would also apply a fortiori to closure as contemplated in the I.D. Act. The following extract from Ram Hari De s case ( supra ) is relevant : "The position is that an order for a compulsory winding-up has the same effect as notice of discharge given on the date when the winding up order is made. It is nobo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... winding-up order, section 630 of the Companies Act immediately comes into operation. It provides that if any officer or employee of a company being possessed of company s property wrong fully withholds it from the general use and benefit of the company, he would be liable for prosecution. It is trite to state that this section applies equally to employees, past and present. Reference can be made with advantage to the decision of the Hon ble Supreme Court in Baldev Krishan Sahi v. Shipping Corpn. of India Ltd. [1988] 1 SCR 168. Even if there are some doubts as to whether this provision would have application to a company in liquidation they would stand dispelled by rule 9 of the Companies (Court) Rules, 1959 read with sections 446 and 456(2) of the Act, which states that all properties and assets of the company shall be deemed to be in the custody of the Court from the date of the order for the winding up of the company. Thereafter section 468 further specifies that the Court may, at any time after making a winding up order, inter alia, require any officer or other employee of the company to deliver, surrender or transfer forthwith or within such time as the Court may directs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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