1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 1664 OF 2008 M/s. M.K. International. .... Petitioner. V/s. Mr. Abhay S. Birje. .... Respondent. ....... Mr. Kishore Shetty for the Petitioner. Mr. Sunil R. More for the Respondent. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 02ND APRIL 2008. ORAL JUDGMENT :- Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the Respondents waive service. By consent of Counsel and at their request taken up for hearing and final disposal. The petition arises out of an order passed by the Labour Court on 12th June 2007 in an application under Section 33C(2) of the Industrial Disputes Act, 1947 and an order passed subsequently on 2nd 2 July 2007 declining to allow an application filed by the Petitioner for being deleted from the proceeding. The Respondent was an employee of a company by the name of M/s. Ganpati Exports Pvt. Ltd. The aforesaid company was ordered to be wound up in pursuance of an order dated 18th November 1998 passed by the Calcutta High Court in Company Petition 92 of 1998. The Official Liquidator was appointed as liquidator of the business of the company for the purposes of winding up. Some time in the year 1998, a reference to adjudication was made by the Deputy Commissioner of labour of a dispute between the Respondent and Ganpati Exports Pvt. Ltd. arising out of the termination of the services of the Respondent on 16th November 1996. The Labour Court at Mumbai passed an award on 19th August 1999 directing the employer to pay an amount of Rs.1,00,000/- to the Respondent in lieu of the reinstatement. The award of the Labour Court shows that the Respondent had drawn the attention of the Court to the fact to the order of the Calcutta High Court and to the fact that the Official Liquidator had been appointed as liquidator. Apparently, neither was leave under Section 446 of the 3 Companies Act, 1956 taken nor was the liquidator brought on the record of the proceedings in the pending reference. Some time in 2003, the Respondent filed an application under Section 33C(2) of the Companies Act, 1956. The Official Liquidator was joined as party to the application by an order dated 4th May 2006. The Petitioner herein was impleaded as Opponent No.2 to the application under Section 33C (2). The Petitioner is a company incorporated under the Companies Act, 1956. On 8th June 2007, an application was filed by the Petitioner for being deleted from the array of parties since the Respondent was never in the list of employees of the Petitioner. The Petitioner however, disclosed that it was functioning in the same premises where Ganpati Exports Pvt. Ltd. had earlier functioned. The Roznama of the proceeding before the Labour Court would show that on 8th June 2007, an application filed by the Petitioner herein at Exhibit C-6 for deleting it from the array of parties was adjourned to 12th June 2007 in order to enable the Respondent to file a reply. This application was coupled with another application at Exhibit C-7 filed by Opponent No.3 Rajaram S, Chandgotia, who had been 4 impleaded in his capacity as Executive Director of Ganpati Exports Pvt. Ltd. On 12th June 2007, the Respondent and his Advocate were present while the Petitioner herein who had filed the application at Exhibit C-6 was absent. A judgment was delivered on the application under Section 33C(2), by which the application was allowed and the Opponents including the Petitioner herein were directed to pay an amount of Rs.1,00,000/- to the Respondent with interest at the rate of 12% per annum from the date of the award. On the same day, an application at Exhibit C-8 was filed for deferring the final judgment and the Roznama discloses that no order was passed thereon. Subsequently, on 27th June 2007, the applications for deletion at Exhibits C-6 and C-7 were argued. The applications were dismissed by an order dated 2nd July 2007. The challenge in these proceedings is to : (i)The order dated 12th June 2007 allowing the application under Section 33C(2); 5 (ii) The Order dated 23rd June 2007 rejecting the application of the Petitioner for deleting its name from the array of the parties. On behalf of the Petitioner it has been urged that an application under Section 33C (2) has to be preferred only as against the employer. The Petitioner herein was admittedly not the employer of the Respondent and was not a party to the reference to adjudication under Section 10 of the Industrial Disputes Act, 1947. Merely because the Petitioner is in occupation of premises which were earlier held by the company in liquidation would be no ground to fasten liability under Section 33C(2) on the Petitioner. On the other hand it has been urged on behalf of the Respondent – Workman that all the assets and liabilities of Ganpati Exports Pvt. Ltd. were taken over by the Official Liquidator. The written statement which was filed by Opponent No.3, who was impleaded as an Executive Director of the erstwhile company in liquidation was to the effect that the office premises at Nariman Point were disposed of by the 6 Liquidator, If so, it was urged that there is no explanation as to how the Petitioner is in possession of the property of the company in liquidation. The submission before the Court was that the business of the erstwhile company is being carried on by the Petitioner and the Petitioner is therefore correctly made liable. Section 33C(2) of the Industrial Disputes Act, 1947 provides that where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may be decided by the Labour Court as may be specified in this behalf by the appropriate Government. A perusal of the award of the Labour Court would show that the Petitioner was not a party to the reference. The claim of the Respondent was against Ganpati Exports Pvt. Ltd. which was the employer. By the date on which the award of the Labour Court was passed, the employer was taken into liquidation and a reference to that is found in paragraph 11 of the judgment of the Labour Court. It is only to the application under Section 33C(2) that the 7 Petitioner came to be impleaded. There is merit in the submission which has been urged on behalf of the Petitioner that the impleadment of the Petitioner to the application under Section 33C(2) was erroneous since the liability under the award was a liability of the employer which was in the meantime taken in liquidation. The Respondent, the Court has been informed, has already availed of the remedy of filing a claim before the Liquidator of the Calcutta High Court in the liquidation proceedings. In so far as the Petitioner is concerned, in the absence of any relationship with the Respondent as employer and employee, the order of the Labour Court fastening liability on the Petitioner and refusing an order of deletion of the Petitioner is clearly erroneous. The Labour Court has come to the conclusion that the Company in liquidation is still functioning under the changed name of M.K. International. The contention of the Petitioner that it was not concerned with the implementation of the award as the employer had gone into liquidation has been rejected on the ground that the Petitioner has not brought any other material in this regard. This finding is without any logic or foundation since from the documentary material on record, it is evident that the Petitioner was neither the employer nor for that matter was it 8 impleaded as a party to the reference. The contention of the Respondent that the Petitioner has no valid explanation for having come into possession of the premises would not advance the case any further. In pursuance of the order passed by the learned Single Judge on 24th March 2008, an affidavit has been filed on behalf of the Petitioner stating that it has come into possession of the commercial premises at Nariman Point since 1st August 1998. A leave and license agreement dated 1st August 1995 has been relied upon in the submissions before the Court. The nature of the possession of the Petitioner or the entitlement of the Petitioner to continue in occupation of the premises at Nariman Point are matters on which the Official Liquidator may seek orders before the appropriate forum. In so far as the Respondent is concerned, the Petitioner is not the employer and is therefore not liable under Section 33C(2). 9 In theses circumstances, the Petition would have to be allowed. The Petition is allowed and the judgment dated 12th June 2007, in so far as it fastens liability upon the Petitioner herein shall stand quashed and set aside to that extent. The application filed by the Petitioner for being deleted from the array of parties before the Labour Court shall accordingly stand allowed. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. ------