Present appeal is filed by one Shri Dineshkumar P. Panchal, who has described himself as appellant and the address given is, C/o Gujarat Mazdoor Panchayat, Dr. Lohiya Sadan, Odhav, Ahmedabad. The order under challenge in this appeal is dated 12.12.1996, whereby the learned Company Judge, as he then was, was pleased to order that “No reply has been filed to oppose the petition or to controvert the statements made in the petition and, therefore, it is presumed that the facts stated in the petition are correct. Even after admission of the petition, the amount to be paid by the Company has not been paid to the petitioner and, therefore, one can very well presume that the Company is unable to pay its debts. Therefore, it would be just and proper to wind up the Company. In the circumstances, the Company is ordered to be wound up. The Official Liquidator attached to this Court is directed to initiate winding up proceedings and he is empowered to take action under provisions of Section 457 of the Companies Act. (Emphasize supplied) 2. On perusal of papers, it is found that the appeal is supported by an affidavit, which is affirmed by one Shri Jyotindra N. Yadav, described himself as son of Shri Nathalal G. Yadav, the Executive Members of the appellant union. In fact, as referred to herein above, the appeal is filed in the name of one Shri Dineshkumar P. Panchal, who has already given his address as C/o Gujarat Mazdoor Panchayat and he has not mentioned that he is an office bearer of the said union. On further perusal of papers, it is noticed that Vakalatnama is signed by one Kanaiyalal M. Makwana, who has described himself to be, Ex Member, which learned advocate submitted to be read as Executive Member of Gujarat Mazdoor Panchayat.
3. This is a peculiar case, wherein an appeal is filed by an individual giving his address to be C/o Gujarat Mazdoor Panchayat and affidavit is filed by another person describing himself to be Executive Member of the appellant union. In fact, the Union is not the appellant and the Vakalatnama is signed by third person describing himself as Executive Member of Gujarat Mazdoor Panchayat. Only on this short ground, the appeal deserves to be rejected.
4. But, as the appeal is admitted and pending since 1999, learned advocate Mrs. Sangeeta N. Pahwa was heard at length. Learned advocate submitted that the present appellant is one of the workers of the company, which was ordered to be wound up by this Court in Company Petition No.131 of 1996. Learned advocate vehemently submitted that the company is ordered to be wound up for non-payment of meager amount of Rs.19 lacs, which was then corrected to be Rs.19,000/- and which was then found in the order to be Rs.19,967/-, to be precise. Learned advocate for the appellant submitted that in the year 1994, there was a matter filed before the Labour Court, Ahmedabad being Reference (LCAD) No.160 of 1989, wherein an application Exh-11 was filed. Later on, a complaint came to be filed being complaint No.21 of 1991, wherein below Exh-1, an order was passed on 20.12.1991 passed by the Presiding Officer, Labour Court, Ahmedabad injuncting the company from removing its machinery without following the procedure prescribed under law. It was in the said complaint that an application was filed by the company seeking modification or vacation of that order of injunction so as to enable the company to sell off the machinery. The said application was considered favourably and the learned Judge of the 4th Labour Court, Ahmedabad was pleased to pass an order on 29.9.1994 and the company was permitted to sell, transfer or dispose of the machinery and injunction granted by order dated 20.12.1991 was vacated.
5. What follows is important. After having obtained order of injunction in complaint No.21 of 1991 which was vacated after bi-partite hearing by order dated 29.9.1994, the union went into slumber. It may not be felt that term used (slumber) is harsh. The observation made by the learned Company Judge, as he then was, in the order of winding up dated 12.12.1996 are reproduced. The learned Company Judge, as he then was, has observed thus:
“This petition was admitted on 11th September,1996. Necessary advertisements were
also published in daily newspapers viz. Indian Express and Jansatta and an advertisement was also given in the Government gazette. In pursuance of the advertisements, no one has come forward either to support or oppose this petition....” (Emphasis supplied)
6. It is only after three years of passing of order of winding up, appellant Shri Dineshkumar P. Panchal came forward to file the present appeal, which is unique, as it is supported by the affidavit of one Jyotindra N. Yadav, son of Shri Nathalal G. Yadav and Vakalatnama is signed by one Shri Kanaiyalal Makwana. The said appeal came to be admitted on 30.3.2001. Subsequently, Civil Application No.48 of 2003 came to be filed in Civil Application No.116 of 2002 which was considered by the Division Bench of this Court and disposed of by a speaking order dated 14.7.2003. It will be in fitness of things to reproduce the entire order, which reads as under:
ORAL ORDER CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE SHARAD D.DAVE Date of Order: 14/07/2003 (Per : MR.JUSTICE J.M.PANCHAL) By filing instant application,Mr.Dineshkumar P.Panchal who claims to be Secretary of Gujarat Mazdoor Panchayat having its office at Dr.Lohiya Sadan, Odhav, Ahmedabad has prayed to direct the official liquidator to disburse the amount of gratuity of Rs.3,10,000/- and such other amount lying with him to the workmen whose names appear at Annexure `D' to the official liquidator's report dated October 16, 2002.
Pursuant to direction given by the Division Bench on May 02, 2003 in Civil Application no. 48/03, the official liquidator has submitted report dated June 24, 2003 which indicates that 26 workers will be entitled to receive the amount as mentioned in the statement produced at annexure `A' to the report. The names of those 26 workers are to be found in Annexure `A' produced along with the report dated June 24, 2003. After going through the report, the applicant has filed an affidavit on June 27, 2003 which reads as under:
"I, Jayantibhai S/o Manilal Panchal, General Secretary of the Gujarat Mazdoor Panchayat, aged 47 years, on behalf of the applicant union, do hereby solemnly affirmation state as under:
I say that the applicant union also accepts the list given by the Official Liquidator in his report as the workmen mentioned in the said list according to me are only entitled to the receipt of gratuity amount. I further state that the applicant union will not approach the official liquidator of this Hon'ble Court or any other forum with a request for payment of gratuity in respect to any other workmen in future."
We have heard Mr.Naveen Pahwa learned counsel of the applicant and the official liquidator. The official liquidator has stated at the bar that he has no property nor funds of the company concerned and therefore will not be able to entertain any claim regarding disbursement of gratuity etc. which may be made by any other workmen in future and therefore the court should hold that the disbursement of the amount of gratuity which may take place pursuant to direction of the Court would be towards full and final settlement of all the workmen who were employed in the company concerned.
From the record of the case, it is evident that the applicant had claimed a sum of Rs.5,01,408/- from the official liquidator towards disbursement of amount of gratuity and other dues payable to the workmen but the report dated June 24, 2003 submitted by the official liquidator makes it more than clear that the sum available is Rs.3,27,770/- and not Rs.5,01,408/- as was claimed by the applicant. This position is not disputed by the learned advocate of the applicant. On the facts and in the circumstances of the case, the official liquidator is directed to disburse Rs.3,27,770/- to 26 workmen whose names are to be found in Annexure `A' produced along with his report dated June 24, 2003.
The amount shall be paid to each workman, as mentioned in the statement produced at Annexure `A' to the report, by Account Payee Cheque. Having regard to the facts of the case and more particularly in view of the contents of affidavit filed by the applicant on June 27, 2003, it is held that now no claim of any workman of the concerned company towards gratuity etc. shall be entertained by the official liquidator because it is evident that the official liquidator has neither funds belonging to the concerned company nor properties of the concerned company in his possession. Subject to this observation, the application succeeds to the extent indicated hereinabove.
Rule is made absolute accordingly. There shall be no orders as to costs.
Sd/- (J.M.PANCHAL, J) Sd/- (SHARAD D DAVE, J)
7. It is thereafter that the present appeal has seen the light of the day and has come up for final hearing before this Court. Taking into consideration the aforesaid facts, this Court is of the opinion that the present appeal lacks bonafide on the part of all, the appellant, the person who signed the Vakalatnama and the person who filed the affidavit. In the opinion of this Court, this is a fit case, wherein an order imposing cost is required to be made against all these three persons for filing frivolous proceedings. But then, time is the factor which has come to their rescue. This is a matter of 1999 which has seen the light of the day in the year 2012. Taking into consideration the contents of order dated 14.7.2003, this Court is of the opinion that it will suffice if this appeal is buried ceremoniously.
8. In the result, this Court finds no substance in the present appeal and the same is dismissed.
9. As the main appeal is dismissed, civil application does not survive and is dismissed accordingly. Notice is discharged.
[RAVI R. TRIPATHI, J] shekhar [N.V. ANJARIA, J]