(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1 The present appeal has been preferred by the appellant original respondent No.4 Vatva Industries Mazdoor Sabha challenging the impugned order passed by the learned Single Judge/Company Court dated 20th June 2009 passed in OLR No.189 of 2007 in Company Application No.537 of 2006 by which the learned Company Court has overruled the objections submitted by the appellant workers' union against 36 workers whose claims were held admissible along with other workers.
2 At the outset, it is required to be noted that, as such, pursuant to the earlier order passed by the learned Single Judge/Company Court dated 21st December 2006 the claims of 36 workers whose names were earlier not included in the list submitted by the Official Liquidator/Chartered Accountant as their claims were not held admissible, came to be reverified/reconsidered by the Chartered Accountant and on the basis of the report submitted by the Chartered Accountant, which was, on the basis of the material available on record including the names of 36 persons in the list and considering their claims as admissible and therefore the Official Liquidator submitted the report being OLR No.189 of 2007 to permit him to pay the permissible dues to those 36 persons. The same was, as such, not objected to by any of the secured creditors. However, the same came to be objected to by the appellantworkers union. The learned Single Judge, by the impugned order, has overruled the said objections by specifically holding that as the concerned workers submitted the claim through another union/person and not through the appellantunion, the objections have been raised by the appellantunion. The learned Single Judge has also held that the Chartered Accountant, on the basis of the material available on record, has reverified the claims of those 36 workers and thereafter the Official Liquidator has submitted the report and the claims of those 36 workers were held to be admissible and consequently the learned Single Judge has directed the Official Liquidator and/or permitted the Official Liquidator to pay the dues to the aforesaid 36 workers. Feeling aggrieved by said order passed by the learned Single Judge/Company Court dated 20th June 2009 passed in OLR No.189 of 2007 in Company Application No.537 of 2006 the appellantUnion has preferred the present OJ Appeal insofar as it holds the claims of 36 workers to be admissible along with other workers.
3 Shri Hemang Shah, learned advocate for the appellant has vehemently submitted that as such all those 36 workers, whose claims are held to be admissible, were not in employment of the company in liquidation at the time when the company was ordered to be wound up. It is submitted that, in fact, all of them had left the service/employment much earlier and in support of his submission he has relied upon some documents from the Provident Fund office, which, according to the appellant, have been received by it under the Right to Information Act. Considering the above, it is submitted that the learned Single Judge has materially erred in overruling the objections raised by the appellant and in accepting the claims of those 36 workers as admissible. Making above submissions, it is requested to allow the present appeal.
4 Heard Shri Hemang Shah, learned advocate for the appellant and Shri Jagdish Yadav, learned advocate for the Official Liquidator and considered the impugned order passed by the learned Single Judge.
At the outset, it is required to be noted that, as such, the grievance of the appellant is against 36 workers whose claims are held to be admissible. However, those 36 persons, whose claims are disputed and/or objected to, are not joined as party to the present proceedings. Once the learned Single Judge has passed an order to include the names of those 36 workers and their claims are held to be admissible and when the same is objected by the appellant, as such they are required to be heard. Under the circumstances, in absence of those 36 workers whose claims are held to be admissible, no relief can be granted to the appellant in the present appeal.
5 Even otherwise, it appears that the learned advocate appearing on behalf of the appellant has made the submissions against those 36 workers which were not raised before the learned Single Judge. Nothing is on record to indicate that the submissions which are now made before this Court in appeal were, in fact, made before the learned Single Judge and the learned Single Judge has not considered or decided the same. Under the circumstances, the appellant cannot be permitted to make submissions in appeal which were not canvassed or submitted before the learned Single Judge.
In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed with no order as to costs.
(M.R.SHAH, J.) (S.H.VORA, J.) *mohd