WP/1771 & 55/2010 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1771 OF 2010 Sumeet Machines Employees Union .. Petitioner V/s. Sumeet Machines Ltd. & Ors. .. Respondents ALONG WITH WRIT PETITION NO. 55 OF 2010 Sumeet Machines Ltd. .. Petitioner V/s. Sumeet Machines Employees Union & Ors. .. Respondents Ms. Gayatri Singh for the Petitioner in WP/1771/2010 and for Respondent No.1 in WP/55/2010. Mr. J.P. Cama, Sr. Counsel, with Mr. Rohan Cama and Ms. Pallavi Dedhia for the Respondent No.1 in WP/1771/2010 and for the Petitioner in WP/55/2010. Mr. S.A. Bhagwat, Representative of Official Liquidator. CORAM: SMT.NISHITA MHATRE, J. DATED: 19TH JULY, 2010 P.C.: 1. These Writ Petitions have been filed against the order dated 5th October, 2009, passed by the Industrial Court, Nashik, in Complaint (ULP) No.295 of 1999. This order has been passed in a complaint filed by the workmen contending WP/1771 & 55/2010 2 that the Management had illegally laid off the workmen or locked them out. The workmen, therefore, sought a declaration that the Management had committed unfair labour practices and that the workmen were entitled to full wages from 1.1.1997 till they were permitted to resume duty. The Industrial Court, without considering whether there was in fact an illegal lay off or an illegal lock out, has held that there was a closure of the Concern from 1.1.1997. This was probably because the Management in its pleadings had stated that they were forced to shut down the Concern on the Court Receiver being appointed. 2. Admittedly, this Court has passed an order winding up the Company and appointing the Official Liquidator, directing him to take charge of the assets of the Company. An appeal was filed by the Company being Appeal No.667 of 2005. It was adjourned on 5.9.2005 and the Official Liquidator was directed not to take charge of the assets of the Company. This ad-interim relief granted was continued till the Appeal was dismissed on 4.9.2009. The Appeal was then restored as the Company filed Notice of Motion No.781 of 2010. The following order was passed by the Appellate Court on 9.4.2010:- WP/1771 & 55/2010 3 “Heard the parties. Considering the cause shown, the Notice of Motion is made absolute in terms of prayer clause (b). Appeal No.667 of 2005 is restored to file. Liberty to the Appellants to take certain Notice of Motion for interim reliefs.” The learned counsel for the Company submits that the assets continue to be with the Court Receiver and that the Official Liquidator is not entitled to take charge of the assets, as the order for restoration of the appeal having been passed, the earlier interim orders revive. He relies on the judgment in the case of Vareed Jacob v/s Sosamma Geevarghese & ors., reported in A.I.R. 2004 SC 3992. 3. In my opinion, this submission of Mr. Cama cannot be accepted in view of the fact that the liberty has been granted to the Company in the aforesaid Notice of Motion to take out another Notice of Motion for interim reliefs. Obviously, therefore, the Appellate Court has not restored the interim orders passed by it earlier. 4. The Official Liquidator has been added as a party respondent in these Writ Petitions. The learned advocate appearing for the Official Liquidator tenders a report of the Official Liquidator and states that the assets of the Company has not been taken in charge by the Official Liquidator and WP/1771 & 55/2010 4 the assets continue to be in charge of the Court Receiver who was appointed by the order of this Court passed on 12th November, 1998 in Notice of Motion taken out in the year 1996 in Suit No.1822 of 1996. 5. Be that as it may. The Industrial Court, in my opinion, has erred in passing the impugned order. The Industrial Court has not considered whether there was a lay off or a lock out. How the Industrial Court concluded that there was a closure has not been discussed. Further more, in my opinion, the Official Liquidator ought to have been added as a party to the proceedings before the Industrial Court as the order for winding up had been passed on 17.6.2005. 6. The Complaint (ULP) No.295 of 1999 is, therefore, remanded to the Industrial Court, Nashik, for hearing it afresh. 7. The Industrial Court, Nashik, will frame proper issues as to : (i) whether there was a lock out or a lay off from 1.1.1997 in the Company; (ii) whether there was a closure from WP/1771 & 55/2010 5 1.1.1997 or from any subsequent date; and (iii) whether the Company can be heard at all since there is an Official Liquidator appointed in respect of the Company. 8. In these circumstances, both the Writ Petitions are disposed of accordingly. 9. The Complaint (ULP) No.295 of 1999 shall be heard and disposed of on the basis of the evidence on record within a period of six months from today. .....