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

5. The terms of the reference stated :"whereas the State Government is of opinion that an Industrial dispute exists or is apprehended between the Management of the Sugar factories as specified in Appenix I and their workmen represented by the Unions as specified in Appendix II regarding the matters specified in Annexure A ;Now, therefore, in exercise of the powers conferred by S. 7 read with sub-s. (1) of S. 10 ofthe Industrial Disputes Act, 19477. The Respondent No. 1 entered upon the said reference. Even though Gaya Sugar Mills Ltd., Guraru which was then in liquidation was not specifically described as such in Appendix I, notice was given to the liquidator by the respondent No. 1 for 11th January 1955, which was the date fixed for hearing before him. The said letter however reached liquidator on 13th January 1955, whereupon by his letter dated 14th January 1955, he informed respondent No. 1 about it, Respondent No. 1 however satisfied himself by merely endorsing on the letter of the liquidator that the hearing had already concluded and nothing further than enquiring of the post office as to the reason of the delay in the delivery of the letter could be done. Respondent No. 1 made his award on 17-2-1955, and it was published in the Official Gazette on 23-2-1955. The adjudication proceedings which had thus commenced on the date of the reference viz., 2-12-1954, came to a conclusion on the expiry of 30 days of the publication of the award viz., on 25-3-l955, under S. 20 (3) ofthe Industrial Disputes Act,8. Even though the appellant was in possession of the said Mills under the terms of the lease dated 6-12-1954, no notice was given by Respondent No. 1 to the appellant and the appellant therefore could not and did not appear before Respondent No. 1. So far as the appellant was concerned the proceedings before Respondent No. 1 were ex parte. Two applications were, however, made on 23-3-1955, under S. 33A ofthe Industrial Disputes Act,one by 15 persons alleging that the appellant had without any reason and without any notice discharged them from employ one by one during the months of January and February 1955 and the other by 5 persons alleging that that the appellant had changed their conditions of service without any reason, contending that the said discharges and the change in conditions of service had been effected by the appellant during the pendency of the disputes before the Industrial Tribunal aforesaid without the permission of the Industrial Tribunal having been obtained under S. 33 of the Act. These applications were numbered as Miscellaneous Cases Nos. 26 and 27 of 1955 and the appellant received on 7-4-1955, two notices from respondent No. 1, both dated 25-3-1955, informing the appellant about the filing of the two miscellaneous cases and calling upon the appellant to file statements showing cause by 19-4-1955. The appellant accordingly filed before Respondent No. 1 two applications or statements contending inter alia that the application under S. 33-A ofthe Industrial Disputes Act,10. The main contentions urged by the appellant in the said petition were :-(1) that under each one of the points referred for adjudication, considerable burden was sought to be imposed on the sugar factories concerned; that all the properties and effects of the Gaya Sugar Mills Ltd., were in the custody of the Court as from the date of the order for winding up viz., 14-11-1951; that the said notification did not purport to include Gaya Sugar Mills Ltd., in that light and did not describe the company as having already gone into liquidation; that no leave of the Court was obtained before commencing or continuing the proceedings before the Tribunal and in fact the liquidator was neither named as a party nor was any notice given to him of the commencement of the proceedings and that therefore so far as the Gaya Sugar Mills Ltd., (In liquidation) was concerned there was no proceeding in the eye of the law before Respondent No. 1 and as such the Miscellaneous Cases Nos. 26 and 27 of 1955 of which notices had been sent to the appellant were not maintainable; and(2) that no notice of the adjudication proceedings arising out of the aforesaid Notification dated 2-12-1954, was at any stage given to the appellant who was in possession under the terms of the lease granted by the Court; that the appellant being lessee under orders and under terms of the lease approved by the Court was liable for breach of the terms of the lease, if any, and that also to the Court alone; that there was no violation of S. 33 ofthe Industrial Disputes Act,11. No affidavit in reply was filed by or on behalf of any, of the respondents and the application came up for hearing before Ramaswami C. J. and Raj Kishore Prasad J. who delivered the judgment of the Court on 20-9-1956, dismissing the application with costs12. Assuming but without expressing any opinion that the reference made by the State Government under S. 10 (1), Industrial Disputes Act, was a legal proceeding within the meaning of S. 171, Indian Companies Act, the High Court held that S. 10 (1), Industrial Disputes Act, was not controlled by S. 171, Indian Companies Act and therefore no leave of the Court was necessary before making a reference of the Industrial Disputes under S. 10 (1), Industrial Disputes Act. It was also of opinion that even though the reference under S. 10 (1), Industrial Disputes Act, was made by the State Government on 2-12-1954, and the applicant had taken the lease of the said Mills subsequently i.e., on 6-12-1954, the applicant was an "employer" within the meaning of the term used in Ss. 33 and 33A of the Act, and that it was not necessary for the application of either of those sections that the employer who discharges or punishes the workmen or who alters the conditions of service of the workmen should be the identical employer concerned in the industrial dispute which is the subject-matter of adjudication. It was sufficient for invoking the provisions of either of those sections that there is the relationship of employer and employee at the time the workman is discharged or punished or at the time his conditions of service are altered to his prejudice. It was further of opinion that even though the liquidator was not made a party to the reference made by the State Government under S. 10 (1), Industrial Disputes Act, the Gaya Sugar Mills Ltd., Guraru was specifically mentioned as one of the parties in Appendix 1, that the Gaya Sugar Mills Ltd., continued to be a legal personality though an order for winding up had been made and that therefore the Company was properly made a party to the reference under S. 10 (1) of the Act. The fact that the notice given to the liquidator on 11-1-1955, might have been received late by the liquidator did not, in the opinion of the Court, make any difference to the position inasmuch as the award of the Industrial Tribunal was made on 17-2-1955, i.e., long after the date of the notice and there was no lack of jurisdiction in the Industrial Tribunal to make the award valid and binding on the Gaya Sugar Mills Ltd., Guraru. The High Court accordingly rejected the application as stated above13. The applicant applied for leave to appeal to this Court on 9-11-1956, but the High Court refused to grant the certificate on the ground that the proceeding for grant of a writ of certiorari under Art. 226 is not a civil proceeding within the meaning of Art. 133 of the Constitution. The applicant thereupon applied for and obtained from this Court on 1-4-1957, special leave to appeal and the appeal has now come up for hearing and final disposal before us.

Reasoning:
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.