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TMI Blog2021 (2) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... the disposal of the assets, whichever is earlier, and obtain clarification from the Workmen and thereafter issue a speaking order citing reason for rejecting their claim item wise. Further the Liquidator may be directed to decide and intimate the amount due to each workman as Gratuity, Pension and Provident Fund dues which have not been remitted by the company and pay the same separately without including it in the waterfall mechanism envisaged under Section 53 of the 'I&B Code'. (c) Direct the Liquidator to include the nominee of the applicant in the Stakeholders Consultation Committee Viz. Rajesh. R as workmen representative in place of the present incumbent Shri Venugopal, who is actually a management representative, within a time to be fixed by the Hon'ble Tribunal. (d) Direct the Liquidator to decide and admit the amount due to each Workmen in the same format as Annexure- W-5, irrespective of whether they have preferred a claim, based on the books and records of the company especially as some of the workmen may have expired and their legal heirs may not be aware of the Liquidation proceedings. Payment as and when due can be made to the Legal Heirs of the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partially or in full without specifying reasons for such rejection is not in conformity with the law. The Liquidator has also admitted in the footnote that he has considered claims from Workmen as received up to 20.12.2019 and that the Liquidator has badly erred and has failed to appreciate the onerous duty cast upon him as per Regulation 19 (4) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. The applicant stated that it is only just and proper that all workmen claims, irrespective of whether claims have been preferred or not are decided on the basis of books and records of the company and payment made to deceased workmen on production of appropriate valid documents. 3. The applicant further stated that the Liquidator has adjudicated the claim without application of mind. There is every reason to believe that the Ex-Workmen would be deprived of their rightful dues which would be an absolute miscarriage of justice. In order to protect the interest of the workmen, it would be necessary for proper rendering of justice that the applicant herein is impleaded as a necessary party in the above proceedings. 4. It is further stated that in the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties Act, 1955 and that the Ex-Excel Glasses Association, before this Bench, is not a registered Trade Union under the Trade Unions Act who are authorised to collectively bargain on behalf of its employees. The respondent further submitted that the applicant has nowhere in the applicant mentioned the number of members in the Association but for the office bearers listed in the paper book of IA. It is to be noted that 7 office bearers of the applicant association are already members of Registered Trade Unions under the Trade Unions Act. 7. It is further submitted that the present application has been filed under Section 33 read with Section 53 of the Insolvency and Bankruptcy Code 2016 read with Rule 11 and 32 of the National Company Law Tribunal Rules, 2016. On a careful reading of the aforesaid provisions, it is clear that there is no provision to make an application of this nature neither under Section 33 nor under Section 53 of the Insolvency and Bankruptcy Code, 2016. Whereas, in view of Section 42 of the Code, a creditor is at liberty to approach the Adjudicating Authority being aggrieved against the decision of the Liquidator within 14 days of receipt of such determination. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those orders are issued, the applicants are at liberty to approach this Tribunal under Section 42 of the I & B Code. Hence the respondent prays that this IA is to be dismissed as premature. 11. The learned counsel for the applicant filed Rejoinder to the counter reiterating most of the facts stated in the IA, and the respondent filed sur-rejoinder reiterating most of the contentions he made in the counter. Both the parties also have filed their written argument notes. 12. I have gone through the case records and submissions made by the learned counsel for the applicant as well as the learned senior counsel for the respondent- Liquidator. After hearing the arguments made by both parties through video conferencing and considering the argument notes on record, it is found that according to the learned counsel for the applicant , the purpose of forming the association was to collectively agitate before all the forums including this Bench and that there are 132 former workmen of the Company in Liquidation who are the members of this association, who have joined together to bring the issues before this Bench relating to the said workmen. Along with the written submission the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appropriately modify the entry or entries in the List of stake holders Report in the subject matter. The Liquidator is directed to meticulously adhere to the Rules and Regulations while carrying out the above exercise." 14. The respondent stated that Mr. Venugopal Karta have expressed his inability to continue as a member and representative of Stakeholder's Consultation Committee and accordingly the Liquidator communicated the same to the claimants having admitted claim amount higher than Mr. Venugopal Karta (as per the modified list dated 20.03.2020) to accept the nomination for a member of Stakeholder's Consultation Committee. In response, the Liquidator received consent of Mr. P. A. Mathew Tharakan who is the highest claimant in the modified list of stakeholders and the Liquidator has considered the same as per Regulation 31 A (4) of IBBI (Liquidation Process) Regulations, 2019. It is further stated that the class of creditors can recommend a nominee as a representative of the workmen and employees as per Liquidation Regulation and the Respondent is willing to comply with the same. 15. Considering the above order dated 10.08.2020 in MA/78/KOB/2020 and the submissions made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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