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TMI Blog2022 (9) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... d (KSIDC) and any other person/Registered Co-operative Societies /Company formed under the Companies Act, 1956 /Statutory Bodies approved by the Board. Rubber Board shall have the power to nominate five Directors, KSIDC shall have the power to nominate one Director and Financial institutions, banks extending loan to the Company may nominate one Director each and two Directors to be appointed by the Company in General meeting. After the appointment of the Interim Resolution Professional whether the reference to the Central Tribunal can be permitted to continue or workmen represented by the Union are required to submit the claims before him? - HELD THAT:- Regulation 9 provides that a person claiming to be a workman or employee of the corporate debtor, which in present case would be Rubberwood India Private Limited represented through Interim Resolution Professional, shall submit a claim with proof to said Professional in person, by posts or by electronic forms prescribed in Form D of the Schedule. It can also submit supplementary documents or clarifications in support of the claim and for the dues more than one workman or employee any authorised representative is permitted to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion): (i) Call for the records relating to Exhibit P4 order and to quash the same by a writ of certiorari or such other appropriate writ, order or direction. (ii) Stay all further proceedings before the 14th Respondent Central Government Industrial Tribunal cum Labour Court which are likely to be in pursuant to Exhibit P4 order. (iii) declare that the State Government is the appropriate Government under the scheme of the industrial Disputes Act as far as the 1st petitioner is concerned. (iv) Issue such appropriate interim, incidental or other orders as may be deemed just and necessary in the facts and circumstances of the case. 2. It is pertinent to mention here that by virtue of a proceeding initiated before the National Company Law Tribunal, Kochi Bench in CP(IB)/26/KOB/2022 initiated under Section 10 of Insolvency and Bankruptcy Code, 2016 an Interim Resolution Professional namely Mr. Renehan Vamakesan represented by Mr. A.Kevin Thomas and Smt.Nidhi Sam John, vide order dated 17.05.2022, has been appointed, thus the petitioner company in W.P(C).5187/2020 is being represented through the aforementioned Interim Resolution Professional. Both the writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be referred to Labour Court established by the State Government. An 'appropriate Government' as per the definition of Section 2(a)(ii) would unambiguously lead to an irresistible conclusion that the dispute of such nature can be adjudicated only by Labour Court in respect of State Public Undertaking. 5. In support of the aforementioned contention the judgment of Honourable Supreme Court in Heavy Engineering Mazdoor Union Vs. State of Bihar and Others ((1969) 1 SCC 765) has been relied on, wherein, it has been held that where the employer defined under Section 2(g) of the Industrial Disputes Act, 1947 would mean in relation to an industry carried on by or under the authority of any department of the Central Government or State Government. No such authority had been prescribed in regard to the business carried on by the respondent Company. Entire activity is carried on by the company without any control and management and therefore the order Ext.P4 is liable to be set aside. 6. On the contrary learned counsel appearing on behalf of the workmen submitted that the petitioner in the first writ petition Rubber Board would not have any cause of action as on plain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963, or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16 of the Food Corporations Act, 1964 (37 of 1964), or [the Airports Authority of India constituted under section 3 of the Airports Authority of India Act, 1994 (55 of 1994)], or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India Limited], [the National Housing Bank established under section 4 of the National Housing Bank Act, 1987 (53 of 1987)], or [an air transport service, or a banking or an insurance company], a mine, an oil-field] '[a Cantonment Board,] or a [major port, any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or any corporation, not being a corporation referred to in this clause, established by or under any law made by Parliament, or the Central p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rubber Board (2) The Board shall be a body corporate by the name of the Rubber Board having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and shall by the said name sue and be sued. (3) The Board shall consist of - (a) a Chairman to be appointed by the Central Government (b) two members to represent the State of Tamil Nadu, one of whom shall be a person representing rubber-producing interests, (c) eight members to represent the State of Kerala, six of whom shall be persons representing the rubber-producing interests, three of such six being persons representing the small growers, (d) ten members to be nominated by the Central Government, of whom two shall represent the manufacturers and four labour, (da) three members to be nominated by the Central Government of whom two shall be from the Department of Commerce and one from the Department of Agriculture and Co-operation; (e) three members of Parliament of whom two shall be elected by the House of People and one by the Council of States, (ee) The Executive Director, ex-officio, and (1) The Rubber Production Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all its shares were registered in the name of President of India and certain officers. Noticing all these facts, in Paragraph No.6 it was held that meaning of the word employer given in Section 2(g) of the ID Act would mean in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in that behalf, where no such authority is prescribed, would be the head of the department. But that would not mean that the head of the department which gives the directions as aforesaid, which supervises over the functioning of the company, would be the employer within the meaning of 2(g) of the ID Act whereas on the contrary, it suggested that the industry carried on by or under the authority of the Government would mean either the industry carried on directly by a department of the Government such as posts and telegraphs or Railways, or one carried on by such department through the instrumentality of an agent. 13. The contention of referring the dispute to the State Government but not to the Central Government was held to have no merit. The aforementioned judgment was again referred to in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o above, the view expressed in the Heavy Engineering Mazdoor Union was affirmed with further finding that whether a particular instrumentality or a company would be controlled by or under the Central Government would depend upon facts of each case. The finding to that aspect was held in Paragraph No.46 of the judgment in Steel Authority of India Limited and Others (supra) and the same reads thus: 46. We have held above that in the case of a Central Government company/undertaking an instrumentality of the Government, carrying on an industry, the criteria to determine whether the Central Government is the appropriate Government within the meaning of the CLRA Act, is that the industry must be carried on by or under the authority of the Central Government and not that the company/undertaking is an instrumentality or an agency of the Central Government for purposes of Article 12 of the Constitution, such an authority may be conferred either by a statute or by virtue of relationship of principal and agent or delegation of power and this fact has to be ascertained on the facts and in the circumstances of each case. In view of this conclusion, with due respect, we are unable to agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n/Registered Co-operative Societies /Company formed under the Companies Act, 1956 /Statutory Bodies approved by the Board. Rubber Board shall have the power to nominate five Directors, KSIDC shall have the power to nominate one Director and Financial institutions, banks extending loan to the Company may nominate one Director each and two Directors to be appointed by the Company in General meeting. The appointment of the Director by the Board shall act as the Chairman of the company. 19. The ratio decidendi culled out in the judgments referred above and the provisions of the Memorandum and Articles of Association of the Rubberwood India Private Limited leads thus: (1) Rubberwood India has been established under the Rubber Act, 1947 and Section 4 of the Memorandum of Association, extracted above, leads to irresistible conclusion that it is an instrumentality of the Central Government. (2) Board has the power to appoint the Director who would act as a chairman as it has more than 76% of shareholders. The ratio culled out in Steel Authority of India Limited (supra) would be the binding factor for the courts to follow as the view laid down in Heavy Engineering Mazdoor Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 read as follows: 10. Initiation of corporate insolvency resolution process by corporate applicant (1) Where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating corporate insolvency resolution process with the Adjudicating Authority. (2) The application under sub-section (1) shall be filed in such form, containing such particulars and in such manner and accompanied with such fee as may be prescribed. (3) The corporate applicant shall, along with the application, furnish (a) the information relating to its books of account and such other documents for such period as may be specified; (b) the information relating to the resolution professional proposed to be appointed as an interim resolution professional, and (c) the special resolution passed by shareholders of the corporate debtor or the resolution passed by at least three-fourth of the total number of partners of the corporate debtor, as the case may be, approving filing of the application.] (4) The Adjudicating Authority shall, within a period of fourteen days of the receipt of the application, by an order (a) admit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property, (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; (g) to perform such other duties as may be specified by the Board. Explanation . For the purposes of this section], the term assets shall not include the following, namely: (a) assets owned by a third party in possession of the corporate debtor (b) held under trust or under contractual arrangements including bailment, assets of any Indian or foreign subsidiary of the corporate debtor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to refer a claim before the NCLT viz-a-viz of the workman. But on reading of the Regulation 9, a very anomalous situation may arise which can be demonstrated through following hypothetical situation. Suppose a workman files a claim before a Professional and do not have the copy of the appointment or any other document in support thereof, whether in such circumstances the Professional would be having the power to call upon the employer who would be assuming the role of an employer and see the records to verify the claim put forth by the claimant to be genuine on otherwise. The right to challenge the decision of the Resolution Professional has also been provided under the Act through an appeal under Section 60(5) of the Code of 2016 before NCLT, and again before NCLAT under provisions of Section 61 of the Code. Thus, in my view, it would be totally a farcical exercise for the workman to lose their claim before the Central Tribunal for adjudication of the dispute as the proceedings before the Central Tribunal due to the interdiction by this Court have not made any headway. I am not proceeding further. Situation would have been different had this Court been called upon to adjudicate a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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