Case: S. K. G. Sugar Ltd.  Vs. Sri Ali Hassan, Chairman, Industrial Tribunal, Bihar &amp; Others

of the reference or even to serve on the appellant a notice of the proceedings which were to take place before the Industrial Tribunal. Under the Industrial Disputes (Central) Rules,1947 enacted by the Central Government in exercise of the powers conferred upon it by S. 38 of the Industrial Disputes Act, intimation of the place and time of hearing had got to be given to the parties to the reference (Rule 10); and the Industrial Tribunal was enjoined to call upon the parties at the first sitting to state their case (Rule 11); the only power given to the Industrial Tribunal to proceed ex parte was when a party to the proceedings failed to attend or to be represented without good cause shown (Rule 19); and, the representatives of the parties appearing before an Industrial Tribunal were to have the right of examination, cross-examination and of addressing the Tribunal when evidence had been called (Rule 24) : The whole of this procedure envisaged the parties to the reference being properly notified of the proceedings before the, Industrial Tribunal and taking part therein either by themselves or through their authorised representatives. The fact that no such notice was given to the appellant by the Industrial Tribunal goes to show that in the circumstances that obtained the appellant was certainly not understood by the Tribunal as having been a party to the reference and it could not be said on the terms of the reference itself which was made on 2-12-1954, that the appellant, which came into existence as the lessees of the said Mills on 6-12-1954, was a party to the said reference. If the old lessees were in management of the said Mills on 2-12-1954, there was no identity of employers as between them and the appellant, the appellant certainly did not claim under the old lessees nor could it be described as their "heirs, successors or assigns" in respect of the establishment to which the dispute related within the meaning of S. 18 (3(c) of the Industrial Disputes Act. There is no suggestion whatever that the appellant was or is a benamidar of the previous lessees. In no event could the appellant therefore be held to be bound either by the reference or the award made by the Industrial Tribunal, the identity of the employers at the date of the reference with the employers at the time when the acts complained of in the applications under S. 33A of the Industrial Disputes Act were purported to be done by them not having been established. 23. If that is the true position, no question of the appellant obtaining written permission of the Industrial Tribunal under S. 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise. If no such permission were needed, S. 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos. 26 and 27 of 1955 were not maintainable. 24. The result is no doubt unfortunate; because the Industrial disputes which were referred to the Industrial Tribunal by the reference in question were general in their nature and would comprise within their scope the workmen who were working in the Gaya Sugar Mills Ltd., at all relevant times. The appellant came in management of the said Mills from and after 6-12-1954, and it was certainly intended that these disputes which had either existed or were apprehended between the appellant on the one hand and the workmen working in the said Mills on the other should be adjudicated upon under the terms of that reference. If the appellant could be comprised within the description of the "management" of the said Mills at the date of the reference, viz., 2-12-1954, the object and the purpose of the reference qua the workmen of the said Mills would be accomplished. The difficulty, however, is that the several managements which would come into existence on successive leases being granted by the Court in the present case cannot be said to have been comprised within the term "managements of the Sugar factories specified in Appendix I" even though the Gaya Sugar Mills Ltd., Guraru is mentioned as item 2 therein. Such a construction would make the several successive lessees who came into existence during the whole of the period when the reference was pending before the Industrial Tribunal parties to the reference involving fresh notices to be issued, fresh statements of case to be furnished, fresh hearing to be granted, to each of the successive lessees under the Industrial Disputes (Central) Rules, 1947, a result which certainly could not have been contemplated by the State Government when the reference was made. 25. It, therefore, follows that the appellant was not by any count a party to the reference dated 2-12-1954, and not being such a party was not an "employer" within the meaning of Ss. 33 and 33A of the Industrial Disputes Act qua the workmen who filed the applications in Miscellaneous Cases Nos. 26 and 27 of 1955. If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under S. 10 (1) of the Act, as to which we say nothing, but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under S. 33A of the Act. In the premises if the appellant was not bound, as we hold it was not, to ask for the written permission of the Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the workmen concerned no application under S. 33A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Section 171, Indian Companies Act occurs in Part V which relates to the winding up of companies and prescribes that once a winding up order has been made no suit or other legal proceedings shall be proceeded with or commenced against the Company except by leave of the winding up Court and subject to such terms as the Court may impose. The Court is in custody of all the properties and assets of the Company through the liquidator and is in control of the winding up proceedings with a view to the proper realization of the assets and the equitable distribution thereof amongst the creditors of the Company. No suit or other legal proceeding can therefore be proceeded with or commenced against the Company except by leave of the Court and such leave is a necessary prerequisite of the prosecution of such legal proceeding25. It, therefore, follows that the appellant was not by any count a party to the reference dated 2-12-1954, and not being such a party was not an "employer" within the meaning of Ss. 33 and 33A of the Industrial Disputes Act qua the workmen who filed the applications in Miscellaneous Cases Nos. 26 and 27 of 1955. If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under S. 10 (1) of the Act, as to which we say nothing, but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under S. 33A of the Act. In the premises if the appellant was not bound, as we hold it was not, to ask for the written permission of the Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the workmen concerned no application under S. 33A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct3. If that is the true position, no question of the appellant obtaining written permission of the Industrial Tribunal under S. 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise. If no such permission were needed, S. 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos. 26 and 27 of 1955 were not maintainable.