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TMI Blog2002 (2) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... India was subscribed by Grandoe International Limited; that the main object was ( i ) to carry on the business of manufacturing and selling of leather gloves, garments and articles made out of leather; ( ii ) to buy, sell, import, export trade, process convert design and deal in leather and leather products; that the petitioner was appointed as an alternate director of Grandoe India Limited and he was not involved with any day-to-day management or the affairs of the company; that he was not an executive director nor connected with the management of the company; that he resigned from the post of director on 4-10-1998; that the demand for leather gloves had been severely affected during the year 1997-98 which resulted in the company s operation in India becoming not viable; that this has further aggravated due to labour problems that therefore, Grandoe International Limited has also stopped funds which resulted in severe financial crunch; that under these circumstances, a general meeting was held on 6-11-1998, and a special resolution was passed therein to going for voluntary winding up of the company; that accordingly a petition under section 433 read with section 484 of the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic limited company resigned on 1-9-1998; that on 6-11-1998, in accordance with the provisions of the Companies Rules, he filed the petition before the Registrar of Companies; that during December, 1998, a winding up petition in C.P. No. 335 of 1999 has been filed to wind up the company under section 433 read with section 484 of the Companies Act, 1956, and the same was still pending; that in the meanwhile, the Government issued the impugned Government order dated 28-10-1999, thus initiating proceedings against the petitioner for violation of section 25-O of the Industrial Disputes Act. Learned Senior Counsel continuing to argue that on 6-11-1998, a decision was taken by the board under section 433 of the Companies Act; that under section 484 of the Companies Act, C.P. No. 335 of 1999 was filed for winding up the company on which an order has been passed on 13-7-2001, winding up the company; that under section 441(1) of the Companies Act winding up is deemed to have commenced at the time of passing of the resolution itself; that the offence alleged is closing the industrial establishment without obtaining prior permission from the Government under section 25-O of the Industrial Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment advocate appearing on behalf of the first respondent citing the very impugned order passed by the Government of Tamil Nadu would exhort that only based on the report of the Labour Commissioner, prosecution was initiated against the company director/the petitioner herein and it is a statutorily instituted prosecution against the petitioner under the relevant provisions of the Industrial Disputes Act and since the commission of offence is definite in closing the industrial establishment without obtaining mandatory permission from the Government, definite offence is committed by the petitioner and therefore, would pray to dismiss the writ petition with costs. In consideration of the facts and circumstances encircling the whole affair concerned with the writ petition connecting the impugned G.O., having regard to the materials placed on record and upon hearing learned counsel for both, what comes to be known is that it is by G.O.(D) No. 972, dated 28-10-1999, of the Labour and Employment (A2) Department of the Government of Tamil Nadu which is based on the letter of the Commis-sioner of Labour in No. C3/53665/99, dated 30-9-1999, issued to prosecute the management for commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days from the date on which such application is made, the permission applied for, shall be deemed to have been granted on the expiration of the said period, of sixty days. (4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding on all the parties and shall remain in force for one year from the date of such order. (5) The appropriate Government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a Tribunal for adjudication : Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference. (6) Where no application for permission under sub-section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Companies on 6-11-1998. From the said Form No. 32, it comes to be seen that the name of the petitioner Thomas Dulip Singh, S/o Late Thomas, No. 3, 15th Avenue, Harrington Road, Chetpet, Chennai-31 is mentioned; that the date of appointment or change were shown as 10-10-1998, and in the last column meant for brief particulars of changes it is stated "resigned from the board". These are all the documents which have been filed by the company and, therefore, it is clear that in pursuance of the resignation letter submitted on the part of the petitioner on 1-9-1998, his resignation had been accepted by the company and that the company as per Form No. 23 had issued notice only on 3-10-1998, and passed the resolution on 4-11-1998, placing the same in the meeting of the shareholders and the decision had been taken to wind up the same under section 433 of the Companies Act thus passing a special resolution to the said effect and since all these papers along with Form No. 32 were submitted before the concerned authorities on 6-11-1998, wherein it has been clearly mentioned in the necessary column for appointment and changes among directors that the petitioner had resigned from the board ..... X X X X Extracts X X X X X X X X Extracts X X X X
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