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TMI Blog2016 (12) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... red before this Court that claim of the applicant shall be considered as and when disbursement is done. It is a matter of fact that the Company in which the applicant was working has been wound up by an order of this Court and still the winding up proceedings are pending and the disposal of the properties of the Company in liquidation is still to take place. In light of such facts, this Court has passed the order dated 08.06.2016 as per the provisions of the Act. The applicant would be entitled to any further amount of his claim as and when some amount is available for disbursement at the hands of the Official Liquidator and the case of the applicant shall be considered for disbursement of any further amount at par with the other similarly situated workers/employees. - MISC. CIVIL APPLICATION (OJ) NO. 81 of 2016 In OFFICIAL LIQUDATOR REPORT NO. 16 of 2015 In MISC. CIVIL APPLICATION (OJ) NO. 166 of 2014 In COMPANY APPLICATION NO. 139 of 2012 - - - Dated:- 2-12-2016 - MR. R.M.CHHAYA, J. FOR THE APPLICANT : PARTYINPERSON, ADVOCATE FOR THE RESPONDENT : MR PRITESH L PARIKH, ADVOCATE ORAL ORDER 1. By this application, the applicant has prayed as under: 1) THE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed fit and proper to secure the end of justice to the applicant to file his claim personally before the respondent. iii. Pass any other and further orders as may been deemed fit and proper in the interest of justice or to secure the end of justice. 7A This Honble Court may be pleased to recall the orders dated 19.06.2013 passed by this Honble Court in Company Application No.139 of 2012 and order dated 05.03.2014 passed in OJCA No.102 of 2014, in the interest of justice. 7B This Honble Court may be pleased to direct the Official Liquidator to receive further documents from the applicant, if any, in support of his claim and forward the records and other documents which may be are received from the applicant to the Chartered Accountant, who in turn may be directed to verify the claim and give report to the Official Liquidator within such time as may be be deemed appropriate by this Honble Court, in the interest of justice. 7C. This Court may be pleased to direct the Official Liquidator to make payments to the applicant on the basis of the report of the Chartered Accountant within such time as may deemed appropriate by this Honbl;e Court, in the interest of justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor or any other workmen. 3.Having regard to the facts and circumstances of the case, more particularly, having regard to the fact that the applicant is also one of the workmen of the Company in liquidation and reasons mentioned in applications i.e. O.J.Misc.Civil Application No.55 of 2014 and O.J.Civil Application No.102 of 2014, the applicant herein could not submit his claim to the O.L. at the time when the advertisement calling upon the workmen to submit their claims was issued by the Official Liquidator and/or when the Court extended time for the said purpose under different orders. 4.It has emerged that for compelling reasons and circumstances, the applicant herein could not submit claim to the Official Liquidator and therefore, the said claim could not be forwarded to the C.A. for verification along with claims of other workmen. 2.On examination of this application as well as other/previous application filed by the applicant and upon considering the relevant details and submissions on behalf of the petitioner, the Court is satisfied that the applicant has offered satisfactory explanation and sufficient cause to allow/extend the time so as to enable him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid factual position, the prayers were prayed for in the OLR by the Official Liquidator as observed hereinabove. 7. It deserves to be noted that by a further report dated 27.04.2015, Official Liquidator has declared before this Court as under 2) That, the Official Liquidator most respectfully submits that the after terminating the said employee, the said mill company was appointed another Stenographer Mr. Navinbhai. P. Gadhvi, P. F. No. 3877 for post of Stenographer. Mr. N. P. Gadhavi has in service till the mill closed in the year of 1983I whereas the company was wound up in the year of 1989 in terms of winding up order dated 22121989 passed in Company Petition No. 138 of 1989. The Chartered Accountants has verified and calculated his claim and quantified total eligible claim of Mr. N. P. Gadhvi has ₹ 2,24,478/- and as per the order dated 28072011 passed in Company Application No. 310 of 2011, this office has paid an amount of ₹ 58,993/-being @26.28% of his admitted/quantified claim of ₹ 2,24,478/-. 8. The record further indicates that this Court (Coram :Vipul M. Pancholi, J.), in OLR No.16/15, by an order dated 16.06.2015, passed the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar J. Trivedi Co. 4. In view of the aforesaid direction, this matter is adjourned on 17.08.2015. 9. In response to the order dated 16.06.2015, the Official Liquidator filed a further report on 16.08.2015, wherein it is indicated in paras 7 to 12 as under: 8) That, the Official Liquidator further most respectfully the Industrial Court has vide order dated 29092001 granted back wages from 16061977 till February, 1983 only and other benefits which is payable at par with other regular workers of the company. A copy of award/order dated 29092001 passed by the Ld. Industrial Court is annexed herewith and marked as Annexure E . 9) That, the Official Liquidator further most respectfully submits that as per the award/order dated 29092001 of Ld. Industrial Court and guideline given in judgment dated 12051999, M/s. Vibhakar J. Trivedi C0,, Chartered Accountants has calculated claim of Rs. l,00,550/-towards Back wages, Retrenchment Compensation and Gratuity of Mr. N. Jankiraman at par with other workers of the Company in liquidation is very proper. 10) That, the Official Liquidator further most respectfully submits that Provident Fund, Interest and other legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.Pritesh L. Parikh, learned advocate for the Official Liquidator has filed a leavenote, today. 2. However, Mr.J.S.Yadav, learned advocate has submitted that he has been informed by Mr.Anilkumar Patel, Police Constable, who is posted in the security of the High Court, that he has been informed by Mr.Inderjit Bedi, Inspector, that he is in receipt of a communication from the Registrar (Administration) addressed to the Police Commissioner, that the respondent has intimated that he intends to start an agitation before the High Court of Gujarat. 3. Mr.J.S.Yadav, learned advocate submits that in spite of the leavenote of Mr.Pritesh L. Parikh, learned advocate, he is ready and willing to assist the Court on behalf of the Official Liquidator, considering the above development. 4. Mr.Vishal B. Mehta, learned advocate for the respondent, submits that he has no knowledge of the letter dated 18.11.2015 of the respondent, threatening to initiate an agitation if his case is not decided finally on the next date of hearing, that is, 02.12.2015. 5. Insofar as the case of the respondent is concerned, it is submitted by Mr.Vishal B. Mehta, learned advocate for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At this stage, Mr.J.S.Yadav, learned advocate for the Official Liquidator had drawn the attention of this Court to paragraph6 of the Report of the Official Liquidator dated 15.10.2015, wherein it is stated that the respondent has failed to produce any admissible proof of salary slips or last drawn salary, but has produced a diary noting regarding his salary drawn, the reliability of which is doubtful. It is further stated that the respondent has presented certain calculations which indicate that his starting salary was ₹ 600/-per month and that persisted as on 01.04.1977. The Chartered Accountant has, therefore, calculated the salary of the respondent as ₹ 600/-per month. 13. The above makes it even more imperative that the respondent produces admissible proof of his claim so that the matter can proceed further. It may be kept in mind by the respondent that there can be no speedy decision of his claim if proper proof in support of it is not supplied. 14. Mr.Vishal B. Mehta, learned advocate for the respondent submits that the respondent may be granted a period of fifteen days in order to enable the respondent to do the needful. At his request, list on 17.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period from l66l977 (date of Termination) to February, 1983 (Month of Closure) only. However, the Chartered Accountants has calculated the service of the Respondent for the period from 1661977 (date of Termination) to 22121989 (date of winding up order) to make the claim of respondent at par with the other workers of the mill Company in liquidation. 4) In view of the above facts and circumstances, it is submitted that the Chartered Accountant has not calculated less service period of the Present Respondent and finally reverified the claim amount to the tune of ₹ 2,02,687/-up to the date of winding up order. In terms of the order dated 28072011 passed in Company Application No. 310 of 2011 the other workers/employees of the Company in liquidation were paid @26.28% of their admitted/eligible claim. Therefore. in order to bring the Present Respondent at par with all other workers/employees of the Company in liquidation an amount of ₹ 53,266/-being @ 26.28% , of the total reverified claim of ₹ 2,02,687/-of the Respondent should be paid to him to make at par with other regular workers/employees of the Company in liquidation in terms of the order dated 1906 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut is ready and willing to accept the amount of ₹ 26,841/-i. e. ₹ 53,266 26,425/-to make him at par with other regular workers, subject to his rights and contentions. 3 In view of the above stand taken by the respondent, the Official Liquidator is permitted to pay ₹ 26,841/-( Rupees Twenty Six Thousand Eight Hundred and Forty One Only/) to the respondent, subject to all rights and contentions available to the respondent regarding the reverified claim of ₹ 2,02,687/-as stated by the Official Liquidator. The payment of the above amount be made within one week from today, subject to the respondent providing him with the bank details such as Bank Account number and the I.F.C Code. List on 29.03.2016. It deserves to be noted that in the said order, this Court has in para 2, recorded the readiness and willingness to accept the amount of ₹ 26,841/-, subject to his rights and contentions to put him at par with the other regular workers. 14. The Official Liquidator thereafter filed further report dated 28.03.2016, wherein it was brought on record that the applicant is being remitted an amount of ₹ 26,841/-by RTGS on 16.03.2016. By the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri N. Jankiraman Iyer, the present respondent. 5) In view of above facts and circumstances, it is submitted that the Official Liquidator has paid an amount of ₹ 53,266/-( 26841+26425) being @26.28% of the total reverified claim of ₹ 2,02,687/-of the Respondent till date in order to bring the present Respondent at par with all other workers/employees of the Company in liquidation. The Respondent shall also be paid by the Official Liquidator alongwith other workers of the Company in future after realization of land/property of the Company in liquidation. 15. The applicant again filed a reply to the said report on 18.04.2016. The record indicates that thereafter, again by a further report dated 03.06.2016, the Official Liquidator has filed his report and relying upon the earlier reports dated 27.04.2015, 06.08.2015, 15.10.2015, 03.02.2016, 03.03.2016 and 28.03.2016, the Official Liquidator has reiterated that the Official Liquidator has already paid an amount of ₹ 53,266/-being 26.28 % of the total reverified claim of ₹ 2,02,687/-and the applicant who was respondent therein is brought at par with other regular workers/employees of the Company in liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the next date. S.O. to 17.10.2016. 18. The Official Liquidator has filed a report dated 08.11.2016 in the present application, wherein it is averred thus 7) That, the Official Liquidator most respectfully submits that present respondent Mr. N. Jankiraman had appointed on 01081975 as Stenographer, thereafter. he was terminated on 16041977 whereas Mr. Navinbhal P. Gadhvi had Joined in the Company on 06091963 as Clerk, thereafter, he was promoted as Typist and subsequently to the post of Stenographer. The service period of Mr. Navinbhai P. Gadhvi has longer than Mr. N. Jankiraman. Therefore, due to longer service period, Mr. N. P. Gadhvi is getting more amount of gratuity and retrenchment compensation in comparison to Mr. N. Jankiraman Iyer, the present applicant. 8) That, the Official Liquidator most respectfully submits that the Official Liquidator has paid an amount of 58,993/-to Mr. N. P. Gadhvi being @26.28% of the total verified claim of ₹ 2,24,478/-till date at par with other workers of the Company in liquidation. 9) That, the Official Liquidator further most respectfully submits that the Official Liquidator has already paid an amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of 1948), or any other law for the time being in force; (e) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, or unless the company has, at the commencement of the winding up, under such a contract with insurers as is mentioned in section 14 of the Workmen s Compensation Act, 1923 (8 of 1923), rights capable of being transferred to and vested in the workman, all amounts due in respect of any compensation or liability for compensation under the said Act in respect of the death or disablement of any employee of the company; (f) all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees maintained by the company; and (g) the expenses of any investigation held in pursuance of section 235 or 237, in so far as they are payable by the company. (2) The sum to which priority is to be given under clause (b) of subsection (1), shall not, in the case of any one claimant, 3[exceed such sum as may be notified by the Central Government in the Official Gazette]. 4[***] (3) Where any compensation under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whom the payment is made. (8) For the purposes of this section- (a) any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the company during that period; (b) the expression accrued holiday remuneration includes, in relation to any person, all sums which, by virtue either of his contract of employment or of any enactment (including any order made or direction given under any enactment), are payable on account of the remuneration which would, in the ordinary course, have become payable to him in respect of a period of holiday, had his employment with the company continued until he became entitled to be allowed the holiday; 5[***] 6[(bb) the expression employees does not include a workman; and] (c) the expression the relevant date means - (i) in the case of a company ordered to be wound up compulsorily, the date of the appointment (or first appointment) of a provisional liquidator, or if no such appointment was made, the date of the winding up order, unless in either case the company had commenced to be wound up voluntaril ..... 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