9911796707
TMI Blog2024 (11) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... ken any proceedings before the Industrial Court or Labour Court for their wages and other claims. For violation of provisions of the Industrial Disputes Act, 1947, the remedy available to the workmen was to approach the Industrial Court or Labour Court. Adjudicating Authority has rightly observed that the workmen/ employees have slept over their rights for years together and they filed the claim only when CIRP/ liquidation has commenced - The NCLT while exercising its jurisdiction on the liquidation process of the corporate debtor is not entitled to enter into issue as to whether the closure of the factory from June 2010 was in violation of the Industrial Dispute Act, 1947. The said issue ought to have been raised by the Appellants before the Industrial Court or Labour Court. Reference made to the judgment of this Tribunal in Era Labourer Union of Sidcul, Pant Nagar, through its Secretary vs. Apex Buildsys Ltd. [ 2024 (9) TMI 1323 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB ]. In the above case also, labourer union of Sidcul, Pant Nagar had filed a claim in the CIRP of the corporate debtor which commenced on 20.08.2018. Direction for liquidation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority directing for liquidation of the corporate debtor. Liquidator made publication inviting claims from the stakeholders. The Appellants in their capacity as Authorised Representative of 271 workmen submitted their claims in Form F vide e-mail dated 07.02.2019. Liquidator vide e-mail dated 25.02.2019 asked the Appellants to submit the proof of employment in the company in the period of two years preceding the liquidation commencement date in order to admit their claims. The liquidator vide e-mail dated 02.03.2019 communicated the rejection of the claims. Aggrieved by the rejection of the claims by the liquidator, Appellant filed MA No.1847 of 2019 before the Adjudicating Authority. Liquidator filed an Affidavit-in-reply dated 17.06.2019. Appellants filed an application on 26.06.2019 bringing on record certain additional documents. Adjudicating Authority after hearing the Appellants as well as the liquidator has passed the impugned order rejecting the claims. Appellants aggrieved by the said order has come up in this Appeal. 3. Shri Bishwajit Dubey, Learned Counsel for the Appellant in support of the Appeal contends that even though the corporate debtor has ceased to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to claim any entitlement in the liquidation proceedings of the corporate debtor which commenced on 31.12.2018. 5. We have considered the submissions of the Counsel for the parties and perused the record. 6. From the facts brought on the record, it is clear that the corporate debtor ceased to work from June, 2010 and according to the case of the Appellants themselves, they worked in the factory till April 2012 only. The claim was filed by the Appellants who were asked by the liquidator to submit evidence to substantiate the claims. No satisfactory evidence having been produced by the Appellant that they were in the employment of the corporate debtor on the date of commencement of the liquidation, the Liquidator rejected the claims and sent communication dated 02.03.2019 which is as follows:- Therefore, with regards to the dues of workmen and employees, the IBC allows only for dues upto a period of two year/one year prior to the liquidation commencement date to be distributed from the proceeds of sale of assets of the corporate debtor. In the present case, we have been given to understand that while the Corporate Debtor has ceased business operations since June 2010, certain emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, then the workmen shall be entitled to all the benefits under the law. Thus, the Applicants submit that as long as there is no compliance of Section 25(o) of the Industrial Disputes Act, 1947 there is no closure in the eyes of law and the employees who were ready and willing to work, the workmen are entitled to wages as if they are working. In the present case, since there is no closure in the eyes of the law and all the workmen have been reporting for work, they are to be treated as working till date and consequently, all the workers are entitled to wages. 9. The Adjudicating Authority, after hearing the parties, has noted submission of the Applicants/Appellants that they have been continuously working till April, 2012 whereafter they have been denied entry inside the factory. In paragraph 8 of the impugned order, following has been observed:- 8. Counsel for the Applicant has submitted that the workmen have been continuously working up till April, 2012 and they have been denied entry inside the factory by the security guards, though the workers were reporting every day. Therefore, even according to the Applicants, the workmen have been working up till April, 2012 and there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010. However, it is very hard to believe that the Applicants and the workmen whom they purportedly represent, worked unpaid at the factories of the Corporate Debtor from November, 2010 until April, 2012 and even thereafter, without raising any industrial dispute or agitating for their rights or asserting the same before the Labour courts/Industrial Tribunal or any other competent legal forum. There is also no document on record to show that the workmen/employees or the Applicants herein had served any notice upon the Corporate Debtor demanding the payment of unpaid wages/salaries. There is further not an iota of evidence to show that at any point of time subsequent to 2010 or 2012, the Applicants approached the Labour Court/Industrial Tribunal to seek redressal of their grievances that their dues from the year 2010 onwards were not being paid or that they were wrongfully and illegally being prevented from entering the factory premises despite the fact that the factory was never legally closed as per the relevant laws. In the absence of any such evidence, it would be quite arduous to believe and hold that the Applicants have been working throughout from 2010/2012 onwards without bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority on 09.01.2020. Before the Adjudicating Authority, IA was filed by Era Labourer Union where declaration of the lockout on 31.07.2017 was under challenge and Appellant claimed for payment from date of the lockout till the commencement of the liquidation proceedings. The liquidator had not accepted the claim from date of lockout till the commencement of the CIRP. The claims of the Claimants were not verified from the date of closure. Adjudicating Authority rejected the application of the Labourer Union questioning the layoff. Challenging the said order, the appeal was filed. In the above case, the Labourer Union had filed Writ Petition before the High Court of Uttarakhand as well as before the Hon ble Supreme Court. High Court noticing the commencement of CIRP directed the Appellant to approach the NCLT. Hon ble Supreme Court did not entertain the Writ Petition noticing that the insolvency proceedings are pending before the NCLT. It was contended by the Appellant in the above Appeal that the Adjudicating Authority was fully competent to decide the issue regarding closure/lockout. This Tribunal affirmed the view of the Adjudicating Authority that it has no j ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
