TMI Blog1999 (8) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Parmeswaran) Advocate, R.D. Upadhyay, R.C. Pandey, Ranjan Mukherjee, N. Sudhakaran, E.M.S. Anam, Fazlin Anam, Ms. Radha Rangaswamy, Ms. A. Subhashini, Subhash Sharma, M.R. Vij, Ms. Indira Jaising, S.R. Bhat, Ms. Hetu Arora, Ms. Anita Shenoy, Yashank Adhyaru, Sanjay R. Hegde, Advocates with them for Appearing Parties. JUDGMENT K. Venkataswami, J. - The respondent Nos. 2 to 64 in Civil Appeal No. 5642 of 1994 are the employees in the office of the court liquidator in the Calcutta High Court. Aggrieved by the disparity in pay-scales and deprivation of allowances and retiral benefits, they moved Matter No. 756 of 1991 before a learned Single Judge of the Calcutta High Court. They claimed that they must be treated as employees of the Central Government and should be given full status of permanent Central Government employees on the expiry of 360 days of joining their service besides regular pay-scales with avenues for promotion, pension, provident fund and other service benefits on the basis of their length of service. 2. The learned Single Judge of the Calcutta High Court ruled that writ petitioners/respondents Nos. 2 to 64 herein should be given the full status of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Civil Appeal No. 5677 of 1994. This appeal is preferred against the judgment dated 27-8-1993 of the Division Bench of the Kerala High Court in O.P. No. 9732 of 1990-H. The contesting respondents who were the petitioners in the High Court, were working as Estate Clerks, otherwise known as Company Paid Staff (hereinafter referred to as Company Paid Staff), in the Office of the official liquidator, High Court of Kerala. It is not in dispute that the said company paid staff were working in the office of the official liquidator continuously and without any break for years together. They were appointed by the Official Liquidator pursuant to the orders of the High Court under rules 308 and 309 of the Companies (Court) Rules, 1959. It is also common ground that the Company Paid Staff had been discharging their duties and functions identical to those of the staff employed by the Central Government in the office of the official liquidator. The company paid staff moved the High Court seeking absorption on a regular basis. They brought to the notice of the Court that on an earlier occasion on 1-7-1978 similarly situated Company Paid Staff were absorbed as regularly paid staff. 6. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the Company Paid Staff for regularisation was unfair and was not justifiable in the circumstances and especially in view of the precedent of regularising the services of similarly situated employees in the year 1978. The learned Judges further observed that the Company Paid Staff also deserved similar treatment as meted out to the similarly situated employees in the year 1978 and, therefore, were entitled to regularisation of their services in the establishment of the official liquidator. Ultimately, the learned Judges allowed the petition and directed the appellants herein to absorb Company Paid Staff as regular Lower Division Clerks in the office of the official liquidator with effect from their respective dates of appointments as Estate Clerks. There was a further direction given by the Court to grant benefits of pay fixation and all admissible allowances to the Company Paid Staff. The arrears of salary and other allowances due to them on such regularisation shall be computed and paid without delay. There was a further direction to reckon the arrears from the date of the original petition. 8. Aggrieved by the decision of the High Court, the appellants have prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners in this petition. 10. In I.A. No. 5 of 1998, the Company Paid Staff in the office of the official liquidator, High Court of Bombay, sought to intervene/implead in Civil Appeal No. 5677 of 1994 to support the case of the contesting respondents in that appeal. They have also brought to our notice the similar matter pending in the High Court of Bombay and interim orders passed thereon. 11. In I.A. No. 9 of 1998, the Company Paid Staff of the official liquidator, High Court of Madras, have sought to implead/intervene in Civil Appeal No. 5642 of 1994. This Court by an order dated 24-3-1998 allowed I.A. Nos. 5 and 9 of 1998. It was also brought to our notice that the similar issue is pending before the Madras High Court. 12. Before proceeding further, it is advantageous to have a minimal background fact relating to the origin of both the offices of the official liquidator and the court liquidator in the High Courts. We may at once point out that though section 38A of the Banking Regulation Act, 1949 provides for appointment of court liquidator in the matter of liquidation of banking companies, the office of the court liquidator was sanctioned only for the Calcutta High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia by framing the Court Liquidator (Group A Post) (High Court of Calcutta) Recruitment Rules, 1989. Under these 1989 Rules, there were two posts, one post of Court Liquidator and two posts of Assistant Court Liquidators. The post of the court liquidator was abolished on 10-12-1993 and as far as the post of Assistant court liquidators, as on date only one post remains and the other post has been abolished. To assist the Court liquidator in the matter of winding up of Banking Companies, the High Court of Calcutta enabled the Court Liquidator to appoint the staff under Rules 308 and 309 of the Companies (Court) Rules, 1959. The salaries for the staff so appointed were paid from the assets of the Banking Company under liquidation. Those staff appointed by the Court liquidator under the orders of the High Court of Calcutta are the contesting respondents in Civil Appeal No. 5642 of 1994. 15. Let us now consider the case of the Company Paid Staff appointed by the Official Liquidator under the orders of the High Court. It may be noted that under the Companies Act, 1913 there was no post of official liquidator. Under 1913 Act, the matters relating to winding up of the company were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14-1-1988 in the following terms : "In all these cases, the common question that arises for consideration is whether the persons appointed by the Official Liquidator/Court Liquidator under the orders of respective High Court under Rules 308/309 of the Companies (Court) Rules, 1959 are entitled to equal pay and regularisation as the employees appointed by the Central Government in the office of the official liquidator. Learned Senior Counsel appearing for the appointees brought to our notice the findings of the High Courts rendered on the basis of the materials placed before them. They are broadly stated that the appointees were discharging identical duties and functions as that of regular employees in the Office of the Official Liquidator; that they have been continuously without break working for a period ranging from 10 to 25 years; that they have been paid only a fixed salary without any benefit of pension, gratuity; that such employees appointed upto 1-7-1978 had been regularised by the Government ; that though the Central Government appreciated the human problem involved in these matters and came forward before the Kerala High Court to amicably settle the issue ultimatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to find out an acceptable solution in regard to the Company Paid Staff. The following three options were discussed : ( i )One option that was discussed was to repeat scheme for absorption of Company Paid Staff as was done through the 1978 Scheme of Department of Company Affairs. There are certain practical problems in following this course of action. As per the 1978 Scheme such absorption is possible to the extent of 50% only under the direct recruitment quota in the appropriate grade. As the position obtains in the Department of Company Affairs, there is lack of adequate number of vacancies in the aforesaid category (direct recruitment) for the purpose to facilitate absorption of all these Company Paid Staff in the Department of Company Affairs. ( ii )The second alternative that was discussed was to continue the present arrangement without absorption of these Company Paid Staff. In such a situation, their salaries and service conditions could suitably be revised by the Hon ble Company Judges with reference to funds available with the OLs. in the various High Courts. According to information gathered, most of the OLs. attached to various High Courts have annual surpluses. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt on earlier occasions sustaining the orders of absorption and setting aside the orders of the absorption. We do not consider it necessary to refer to those decisions inasmuch as the facts presented before us and the findings rendered by the High Courts speak for themselves. As a matter of facts, the Government had considered as one of the options to absorb the company paid staff as was done through the 1978 Scheme of Department of Company Affairs. 23. In the circumstances, we are satisfied that the orders of the High Court challenged in these appeals do not call for any interference having regard to the facts presented before the High Courts. Accordingly, we dismiss the appeals with no orders as to costs. 24. In view of the above, the writ petition is allowed as the relief prayed for is similar to the one claimed by the contesting respondents/company paid staff in the connected civil appeals, without costs. 25. However, we want to give an opportunity to the appellants in the interest of justice and to balance the equities between the parties to come forward to accept and act on the first option given in the additional affidavit, as extracted above, and absorb the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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