-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Company Application No.161 of 2002 with Company Application No.581 of 2008 with Company Application No.582 of 2008 with Company Application No.630 of 2008 in Company Petition no. 521 of 1992 and Company Application No.823 of 2007 in Company Application No.161 of 2002 in Company Petition No.521 of 1992 Garware Employees Union ..Applicants vs. 1. Official Liquidator, High Court Bombay and others ..Respondents Mr.N.M.Ganguli for applicant. Mr.Birendra Saraf with Ms.Sujata Patil i/b M/s Shaunak Satpute and Co. for respondent nos.2 to 5 Mr.Anand Grover with Ms.Firdndus Moosa for applicant in Company Application No.823 of 2007. CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. 26th June 2008 26th June 2008 26th June 2008 P.C. P.C. P.C. 1. The Company applications are placed on board because of the order made by me restoring the Company Application no. 161 of 2002. 2. However, Mr.Ganguli, learned Advocate appearing for the applicant Garware Employees Union states that the -2- order that would be passed on Company Application No.161 of 2002 would govern the company application no.581 of 2002 and 582 of 2002. 3. The third application on board namely Company Application No.630 of 2008 would also stand covered by the order that is passed on Company Application No.161 of 2002. 4. In all fairness, the parties have invited my attention to the order dated 22nd January, 2008 which reads thus; "In view of the conditional self operative order dated 7th January, 2008, this Application already stands dismissed for non prosecution. Papers be consigned to record." 5. The above company applications seek common relief in as much as they pray for recalling of they pray for recalling of the above order and directions. 6. Mr.Ganguli, learned Counsel appearing for the union has emphasised that the workers are facing difficulty and hardships in recovering their dues and legitimate claim of gratuity. He has also invited my attention to the order dated 18th December, 1998 passed in the above company -3- petition winding up Garware Nylon Ltd. The order proceeds to appoint Official Liquidator, High Court,Bombay as liquidator. Garware Employees Union on behalf of the members i.e. workmen of the company at Mumbai, Pimpri and Sarole have lodged the claims of the workmen with the Liquidator which are pending adjudication. The claims included gratuity payable to the workmen on cessation of their employment. Mr.Ganguli has invited my attention to the provisions of Payment of Gratuity Act. It is contended by Mr.Ganguli that the Company had created a Trust to meet its liability towards the gratuity payable to the workmen under the Payment of Gratuity Act. The Company Application No.161 of 2002 prayed for a declaration that the Official Liquidator should take over the funds and pay claims of the workmen for gratuity from the amounts available in the fund. Appropriate orders were passed from time to time, including, on the official liquidator’s report. Eventually, 20% claims of the workmen for gratuity are paid. Similarly Official Liquidator paid out of the available funds, 18% towards dividends. Balance claim for gratuity is under consideration of this Court. 7. Mr.Ganguli submits that the applicants herein made the above application contending that the Controlling -4- Authority under the Payment of Gratuity Act alone is the competent Authority to decide the claim of the workmen and there are some workmen, who have made an erroneous statement that the company application no.161 of 2002 can be disposed of by this Court. The company application can be disposed of by directions to the trustees of the Fund and official liquidator. The apprehension of Mr.Ganguli is that the sum which has been accounted for by the Trust alone does not denote the claim of gratuity and that the said claim is pending for adjudication. Therefore, this Court should not accept the statement of one Mr. Ashok B.Potghan who has signed the application as alleged President of Garware Employees Union and restrict the claim of the workmen to their prejudice. He submits that the order passed by this Court would be construed as if the workmen have no other claim or that they are satisfied with the determination of the claim of gratuity by the Controlling Authority. 8. That apart, the difficulties are that whatever claims have been determined and decided by the Controlling Authority at Pune, to whom the amounts have been made over, does not fully satisfy the Union nor does it take care of the apprehension of the workmen who are scattered in Pune, Mumbai and elsewhere. Their claims have to be -5- safeguarded and protected. Therefore, the Controlling Authority at Pune should be directed to hand over part of the amounts deposited with it, so that the claim of gratuity of the workmen at Mumbai can be settled. In such circumstances, he submits that the order dated 22nd January, 2008 should be recalled in its entirety and company application no.161 of 2002 be heard afresh. 9. He also prays in the alternative that the amount should be proportionately distributed and appropriate directions be given to the Controlling Authority so that the money, if paid over to some of the workmen and being taken away by them, does not jeopardise the claim and legitimate dues of the members of the applicant Union. In other words, Inter union rivalry should not result in the claim being defeated. 10. Mr.Saraf appearing for the respondent nos. 2 to 5 and the Official Liquidator have contended that as it too late in the day to recall the order and directions of this Court reproduced above. It is their contention that this order has been fully carried out and implemented in as much as the Chartered Accountant and Auditor have stepped in, called upon the Trustees to submit an Account and thereafter prepared a final report. The Trustees are duly -6- summoned and thereafter the Chartered Accountant has submitted the report. Based upon that report, the amounts have been handed over by the trustees to the Official Liquidator who in turn has made them over to the Controlling Authority at Pune. However, the Official Liquidator states that the amounts forwarded does not constitute the entire fund and there is short fall. He submits that he will scrutinise and verify the figures and if there is any short fall it has to be made good by disposing of the assets presently in possession of the Official Liquidator by taking necessary steps; in accordance with law. The Liquidator assures the Court that all necessary steps would be taken as expeditiously as possible. 11. I have perused the company application, Reports’ of the chartered accountant and auditor and official liquidator so also the affidavit filed by the parties. I have heard Mr.Ganguli, Mr.Saraf and Mr.Grover at some length. In my view, it would not be fair, just and proper to recall the order dated 22nd January, 2008 at this belated stage when necessary steps have been taken in pursuance of the said order. The amounts have been retrieved from the fund and made over to the Authorities. It would not be proper to recall the order and that would -7- prejudice the parties including the workmen. It would also not be proper to issue any further directions in as much as the Controlling Authorities are aware of their responsibility, obligations and duties under the Payment of Gratuity Act. Further, all remedies which are available to the workmen and Union are not abbected and merely because this Court has appointed the Chartered Accountant and Auditor and directed the Trustees of the fund to deposit some amount with the Official Liquidator does not mean that the workmen cannot proceed to lodge their claims and the amount of gratuity, by making appropriate applications. All such remedies available to them in law so also the contentions of the parties therein are not affected and all orders of this Court in the present application be construed as made without prejudice to the same. 12. Mr.Grover in all fairness states that about 210 workmen of the company in liquidation who are desirous of taking over the MIDC plot in Ahmednagar district and are taking steps to organise themselves in that behalf have received from the Controlling Authority a sum of Rs.41,97,000/- and if the said amount exceeded their claim and in fact constitute the dues of the workers of the company in liquidation as represented by Garware Employees -8- Union, then, that deficit will be made good and 210 workmen make a statement before this Court that they will duly forward the amount, if called upon, by the Controlling Authority. However, the amount would be made good from the amount of Rs.41,97,000/- Needless to state that this does not mean that if other sums have been appropriated or adjusted by these 210 workmen, then, their act cannot be challenged or questioned by the applicant Union or its members and all proceedings in this behalf can be instituted, civil and criminal, in which contentions are kept open. 13. The only request now that requires consideration is that forwarding of the amount or part thereof to the Controlling Authority at Mumbai, that is something within the exclusive Domain of the authorities. However, I have no hesitation in observing that the Official Liquidator; who is appointed Liquidator of the company in liquidation must render all assistance to the applicant Union in ensuring that the claim of gratuity of the workmen who are based in Mumbai is fully settled. Apart from adjudicating all pending claims with him, the Official Liquidator shall request these Controlling Authorities at Pune, Mumbai, Ahmednagar and Surat to finalise the claims of gratuity of all the workmen based in Mumbai and if any amounts are due -9- and payable to them, the Liquidator must also write to these authorities that these amounts can be forwarded to the Official Liquidator and he will disburse them after ascertaining the identity and claim of individual workman and also upon their furnishing appropriate undertaking to him. Needless to state that these Controlling Authorities within the State of Maharashtra and at Surat shall render all assistance and since these are the claims of the workmen of the company in liquidation they must respect and abide by all such requisitions as are forwarded by the Official Liquidator in this behalf. I have no doubt in my mind that these controlling authorities would take necessary steps so that the amounts determined and adjudicated by them are actually disbursed to those who are entitled to them. 14. Since all these directions are issued and Liquidator assures the Court that pending claims could be adjudicated and settled within a period of 3 months from today no further orders and directions are necessary. Thus, even if the order had been recalled the same result would have followed. In such circumstances, without recalling the order dated 22nd January, 2008 these additional directions are issued. The company application stands disposed of accordingly. However, there will be no order as to costs. -10- 15. If the Liquidator requires the Controlling Authorities at Pune and Ahmednagar so also at Surat to furnish him the details of the amounts determined and disbursed by them till date, then, all such Controlling Authorities should forward the details to the Liquidator. Considering that claims are of the workmen of the company in liquidation such requisitions and requests from the official liquidator should be dealt with expeditiously and in all seriousness by these authorities. They should take prompt steps to forward to official liquidator the details and the Controlling Authorities at Pune and Ahmednagar are granted four weeks period in that behalf. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)