TMI Blog1985 (8) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant a huge amount and that the company was unable to pay its debts. This petition was duly registered as Company Petition No. 43 of 1979. On yet another prayer made by the appellant through Company Application No. 76 of 1979, the learned single judge appointed the deputy official liquidator as the provisional liquidator in May, 1980, and directed him to take charge of the plant and machinery of the company, which he did. The provisional liquidator retained the services of 95 workmen in the interest of the company with a view to maintain the plant and machinery of the company and to look after and guard the same. The provisional liquidator found that no liquidated assets were available with the company. Consequently, on his request, the appellant provided a sum of Rs. 5 lakhs to him for meeting the expenses in connection with the winding up of the company. Out of these funds, he paid 50 per cent, of the wages to the workmen-respondents who were retained by him for the maintenance of plant and machinery, etc ., of the company. He also deposited contributions towards provident fund, employees' state insurance, etc ., calculated on the basis of full monthly wages of these workmen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation (hereinafter called "the Corporation") on a date, not being a date earlier than the appointed day, i.e. , June 23, 1981. Section 10(2) of the Act laid down that on the vesting of the management of the undertakings of the company in the Corporation, the official liquidator of the company or any other person, who had, on the appointed day, in his possession or custody or under his control any books, documents or other papers relating to the undertakings of the company immediately before such vesting or appointment would be bound to deliver the said books, documents or other papers to the Corporation or to such person as the Central Government or the Corporation, as the case may be, may specify in this behalf. Section 12 of the Act, inter alia , provided that every person who had been, immediately before the appointed day, i.e. , June 23, 1981, employed in any of the undertakings of the company shall become on and from the appointed day an employee of the Central Government; and where the undertakings of the company were directed to vest in the Corporation, an employee of that Corporation on and from the date of such vesting. It was further provided that notwithstanding anyth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the balance 50% of their wages yet remained payable to them. These workmen-respondents, therefore, made a prayer that the Cement Controller of India, the appellant, at whose instance the provisional liquidator was appointed, or the Cement Corporation of India, who had taken over the undertakings of the company, be issued necessary directions for the payment of the remaining 50% of their wages to them, which amounted to Rs. 6,84,730. This application was accepted and the Cement Controller of India was directed to make the payment. That is how the present appeal has been filed for setting aside that order. We have heard learned counsel for the parties. Mr. Ashok Aggarwal, learned counsel for the appellant, has contended that the appellant came to the court as a creditor, as a huge sum of money was due to it from the company which was unable to pay its debts, and consequently a petition under section 433( e ) read with sections 434 and 439 of the Companies Act, 1956, for the winding up of the company was filed. No doubt, it was on the prayer of the appellant that the provisional liquidator was appointed and, as stated earlier, a sum of Rs. 9 lakhs was advanced by the appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondents for the period from May 16, 1980, to June 22, 1981, when they were working under the provisional liquidator. The appellant came to the court as a creditor to realise the amount which the company owed to it and filed a petition for the winding up of the company under section 433( e ) read with sections 434 and 439 of the Companies Act, 1956. The appellant no doubt advanced a sum of Rs. 9 lakhs as detailed above to enable the provisional liquidator to meet the preliminary expenses in connection with the winding up operations which amount the appellant was entitled to get back in priority to the debts of the company but by no stretch of imagination could it be held that it was the appellant who had been responsible for the employment of the workmen-respondents from May 16, 1980, to June 22, 1981, and was liable to pay their wages. The principle that an order of a court could not harm anyone is inapplicable in the circumstances of the present case because of the supervening event of the coming into force of the Act with effect from June 23, 1981. As already stated, under section 12(3) of the Act, for the arrears of salary or wages, the workmen have a right to enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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