M K INTERNATIONAL Vs. ABHAY S BIRJE

JUDGEMENT

(1.) 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 July 2007 declining to allow an application filed by the Petitioner for being deleted from the proceeding.

(2.) 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 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.

(3.) 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 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 :