TMI Blog1959 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... ated and registered under the Indian Companies Act, 1913, in 1926, as a private limited company with its registered office at Calcutta. Its business was mainly that of carrying on public transport on Route No. 14 in the City of Calcutta, as also of dealers in and repairers of motor vehicles. It had an authorized capital of six lacs of rupees divided into 600 shares of ₹ 1,000 each, out of which, shares worth ₹ 4,00,000 only had been subscribed and paid up. The registered share-holders of the Company, were Kristo Das Nundy, the second appellant, having 246 shares; Chandy Das Nundy, respondent No. 2, having 142 shares, and Kumar Kartick Charan Mullick, holding 12 shares, each of the face value of ₹ 1,000. On account of financial difficulties and disputes between its shareholders, an application for compulsory winding up of the Company was made by the said respondent No. 2, on the Original Side in the High Court at Calcutta. On July 23, 1951, an order for winding up the Company was made, and the Official Receiver was appointed the Official Liquidator of the Company. An appeal against the order aforesaid, was dismissed on December 5, 1951, and the order for winding up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; Union, 249, Bowbazar Street, Calcutta, regarding the matters specified in the schedule; And whereas it is expedient that the said dispute should be referred to an Industrial Tribunal constituted under section 7 of the Industrial Disputes Act, 1947 (XIV of 1947); Now, therefore, in exercise of the powers conferred by section 10 of the said Act, the Governor is pleased hereby to refer the said dispute to the Third Industrial Tribunal constituted under Notification No. 592 Dis./D/12L-5/12 dated the 23rd February, 1953 for adjudication. The said Third Industrial Tribunal shall meet at such places and on such dates as it may direct. SCHEDULE 1. Whether the notice dated 23rd July, 1954, of termination of services of 142 employees with effect from 24-7-54 issued by the Joint Official Liquidators, was justified ? 2. Whether the refusal of the auction-purchaser to continue the employment of the 142 employees was justified ? 3. What reliefs are the employees entitled to ? By order of the Governor. 4. The employees of the Company had moved the High Court for directions to the Liquidators for the payment of their dues from the Company. The Court, by its order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on awarded to the workmen shall be recoverable only out of the assets in their hands according to law . So far as the auction-purchaser was concerned, the award proceeded to make further directions in these terms : The auction-purchaser, it has already been noted, purchased the different sections of the business with the name The Great Indian Motor Works free from encumbrances and all outgoings and liabilities (Vide Exts. D and E), and the said purchase was confirmed on 5th July, 1954. After the sale was confirmed and before possession was taken by the auction-purchaser, the Liquidators terminated the employment of all the employees (save and except the Accountant and one Clerk) by a notice dated 23rd July, 1954, with effect from 24th July, 1954. After such termination of employment, the auction purchaser obtained possession on 24th July, 1954. At that time no relationship of employer and employees subsisted. In the circumstances the dispute with the auction-purchaser cannot be considered to be 'industrial dispute' as no relationship of employer and employee existed between the auction purchaser and the old staff who had been discharged earlier. Hence I agree with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of the maintainability of the appeal in this Court, as will presently appear. 8. The Labour Appellate Tribunal disposed of the two appeals by its order dated August 1, 1956. The appellants' appeal was dismissed as incompetent in view of the provisions of s. 179 of Indian Companies Act, 1913, re-enacted as s. 457 of the Companies Act, 1956. The dismissal of the appeal on the ground of the appeal not being competent, was based on the order of the Calcutta High Court, dated April 30, 1956, aforesaid, refusing leave to the Liquidators to prefer an appeal. It is noteworthy that the appeal before the Appellate Tribunal, was not by the Liquidators but by K. D. Nundy as Managing Director of the Company, as also by him in his capacity as the creditor or contributory or as the auction-purchaser of the Company. This aspect of the case has not been dealt with by the Tribunal which held that the appeal was not maintainable as it was not authorised by the High Court. The employees' appeal also was dismissed as it was not pressed in view of the fact that the appeal by the Company stood dismissed as unauthorized. It was against the aforesaid order of the Appellate Tribunal, dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act, 1913, (re-enacted as s. 457 of the Companies Act, 1956), that is inconsistent with the provisions of the Industrial Disputes (Appellate Tribunal) Act, 1950 (which hereinafter will be referred to as the Act ). If there is anything in those provisions of the Companies Act, inconsistent with the provisions of the Act, the latter shall prevail. Hence, we have to construe the provisions of s. 12 which specifically deals with appeals. That section permits an appeal to be presented to the Appellate Tribunal by any party which is aggrieved by the award (omitting the words not necessary for our present purpose). It is the usual statutory provision for an appeal, which otherwise would not lie. It does not say either in express terms or by necessary implication, that those specific provisions of the Companies Act, are abrogated or modified. It does not do away with the necessity of the requisite sanction of the Court so far as a Liquidator is concerned. Under the provisions of the Indian Companies Act, the affairs of the company under liquidation, are placed in charge of the Official Liquidator, and under s. 457, it is only the Liquidator who is authorized with the sanction of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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