TaxTMI 
TaxTMI 
2016 (12) TMI 184
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....ing social stigma and trauma to self as well as my family, especially when I had just then undergone operation for piles and my wife was carrying and was in an advanced stage. 3) Adequate action be taken for the undue delay on the concerned persons/authorities, granting me appropriate compensation for my suffering. 4) Cost of litigation and incidental expenses over 40 years or any other reliefs as the Hon'ble Court may deem appropriate in this case, be ordered to be paid. 5) The case be taken up on priority basis considering my old age, illness, failing health besides the age of the case i.e. 40 years, in any case, not beyond a month and, accordingly, the date be fixed." 2. At the outset, it deserves to be stated that the applicant partyinperson has made allegations even against the Court also without any basis and as such, on this ground alone, the application deserves to be rejected. Not only that, even in other contentions also, the allegations are made against the advocates who have appeared for him. Still however, the application is examined on its own merits. 3. Before reverting and examining the contentions which are raised by the petitioner in the applica....
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....T) No.1754 of 2013, which came to be allowed by this Honble Court (Coram:K.M.Thaker,J), vide order dated 15.01.2014. (iii) OJCA No.604 of 2013 converted from O.J.(ST) No.2537 of 2013 on 24.09.2013 for condonation of delay in preferring above stated O.J.MCA 184 OF 2013 converted from O.J. (ST) NO.2536 OF 2013 for restoration, which came to be decided by this Honble Court (Coram:K.M.Thaker,J), order dated 09.10.2014. iv. OJMCA No.55 of 2014 converted from O.J.(ST) No.844 of 2014 on 31.03.2013 for review and recall of order dated 05.03.2014 passed by this Honble Court (Coram:K.M.Thaker,J) in Civil Application No. 102 of 2014 in Company Applicatin No.139 of 2014, which came to be decide by this Honble Court (Coram:K.M.Thaker,J.) vide order dated 22.08.2014. 3(A) The applicant submits that as per the information of the applicant, the office of the Official Liquidator has now received records which are necessary to decide the claims of the applicant. The applicant submits that besides that, the applicant is also in possession of some documents which the applicant can submit to the office of the Official Liquidator. Thus, the applicant submits that the Hohble Court may be pleased....
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....t C.A. to verify the same and submit his report within a three weeks. (D) When the report is received, the applicant and the Official Liquidator shall take necessary and further steps according to the report of the C.A., but subject to other order/s passed by the Court in other Company Applications and/or Company Petitions. With the aforesaid observations, present application stands disposed of." 5. The aforesaid order indicates that the applicant also approached this Court earlier. Pursuant to the order dated 13.11.2014, the Official Liquidator filed a report being OLR No.16/15 and inter alia prayed for the following reliefs " a) This Hon'ble Court may be pleased to permit the Official Liquidator to make payment of Rs. 26,425/-being @26.28% of the total adjudicated/quantified claim of Rs. l,00,550/-, by way of NEFT/RTGs mode in the account of Respondent i.e. Mr. N. Jankiraman lyer. b) This Hon'ble Court may be also pleased to permit the Official Liquidator to make balance payment of the Respondent at par with other workers/employees of the Company as and when the orders for further disbursement are to be passed by this Hon'ble Court in future in the matter of M....
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....alculation is not correct. He has placed reliance upon calculations made by Chartered Accountant Shri Mahendra N. Shah and Company and submitted that as per the said calculation, the petitioner is entitled to get an amount of more than Rs. 10 Lacs as per the order passed by labour Court. Learned advocate for the respondent has further submitted that if an opportunity is given to the respondentworkman, he will submit all the necessary documents alongwith the report of other Chartered Accountant before the office of the Official Liquidator, and therefore, Official Liquidator be directed to verify the same and forward the said documents with the record of the labour Court to the Chartered Accountant M/s. Vibhakar J. Trivedi & Co. for reverification of the claim. 3. In view of the aforesaid submissions canvassed on behalf of learned advocates for the parties, the respondentworkman shall submit necessary documents alongwith the calculations made by Chartered Accountant Mahendra N. Shah and Company's report dated 06.04.2015 to the office of Official Liquidator within a period of 10 days. After the receipt of the said calculation alongwith further material from the respondentworkma....
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....he Official Liquidator further most respectfully submits that the Official Liquidator has made adhoc payments of Rs. 9.23 Crores against total quantified/admitted claim of Rs. 34,85,47,lO6/-in terms of the order dated 2807201] passed in Company Application No. 310 of 201i to other workers/employees of the Company in liquidation @26.28% of their admitted/quantified claim. Therefore, in order to bring the Respondent at par with all other workers/employees of the Company in liquidation an amount of Rs. 26,425/-being @26.28% of the total adjudicated/quantified claim of Rs. 1,00,550/-of the Respondent should be paid to him to make at par with other regular workers/employees of the Company in liquidation in terms of the order dated 19062013 passed in Company Application No.139 of 2012. 12) That, the Official Liquidator further most respectfully submits that Respondent shall also be paid by the Official Liquidator the balance amount at par with all other workers/employees of the Company as and when the orders for further disbursement are to be passed by this Hon'ble Court in future." 10. The record also indicates that the applicant herein had filed an affidavitinreply dated 11.09.20....
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.... and funds are available, further payment shall be made to the respondent along with other employees. 7. Having heard the learned counsel for the respective parties, if it is the case of the respondent that the admissible claim as worked out by the Chartered Accountant is erroneous, the respondent shall give proper details, with proof of his claim, to the Chartered Accountant, so that the matter regarding his claim can be decided at the earliest. 8. Mr.Vishal B. Mehta, learned advocate for the respondent submits that the respondent has supplied the papers at Pages41 and 42 of the paperbook, to the Chartered Accountant. 9. Mr.J.S.Yadav, learned advocate for the Official Liquidator submits that the said papers have been considered by the Chartered Accountant while working out the claim of the respondent. He submits that if the respondent has any additional claim, he may submit it to the office of the Official Liquidator along with necessary proof in support of the claim. 10. Mr.Vishal B. Mehta, learned advocate for the respondent submits that upon telephonic inquiry, his client is found to be at home and is not agitating before this Court, as threatened. 11. Having hea....
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.... of Rs. 53,266/-being @26.28% of the total reverified claim of Rs. 2,02,687/-of the Respondent should be paid to him to make at par with other regular workers/employees of the Company in liquidation in terms of the order dated 19062013 passed in Company Application No. l39 of 2012. However, this office has already paid Rs. 26,425/-in terms of order dated 30102015. Hence, the Official Liquidator may be permitted to pay the balance amount of Rs. 26,841 (i.e:5326626425) to the respondent in order to make at par with other regular workers/employees of the Company in liquidation. The Respondent shall also be paid by the Official Liquidator at par with all other workers of the Company as and when the orders for further disbursement are to be passed by this Hon'ble Court in future after realization of land/property of the Company in liquidation." 12. It deserves to be noted that the said statement made in the report dated 03.02.2016 is based upon the Chartered Accountant's report which is annexed with the report. The record further indicates that the petitioner again reiterated the stand by filing a further affidavitinreply dated 15.02.2016. Upon considering of the said affidavit, ....
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....Pursuant to the order dated 29.02.2016, passed by this Court, the Official Liquidator has filed a report dated 03.03.2016, wherein, at paragraph 4 it is stated that the claim of the respondent workman Shri N Janakiraman Iyer has been reverified and amounts to Rs. 2,02,687/-, up to the date of the winding up order. It is further stated that the Official Liquidator has already paid the amount of Rs. 26,425/-in terms of the order dated 30.10.2015, to the respondent. The Official Liquidator submits that in order to bring the present respondent at par with other workers / employees of the company in liquidation, an amount of Rs. 53,266/-being 26.28% of the total reverified claim of Rs. 2,02,687/-, can be paid to him in order to make him at par with other regular employees / workers of the company in liquidation. Therefore, the Official Liquidator may be permitted to pay the balance amount of Rs. 26,841/-( i.e. 5326626425) to the respondent, in order to make him at par with other regular workmen. 2 Mr. Vishal B Mehta, learned advocate for the respondent, has drawn the attention of the Court to paragraph No.6 of the affidavitinreply filed on behalf of the respondent, affirmed on 15.02.....
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.... Present Respondent to the tune of Rs. 2,02,687/-up to the date of winding up order, the bifurcation of which are as under : a) Back wages Rs. 1,74,312/- (From 1641977 to 22121989) b) Gratuity Rs. 15,201/- (From 1975 to 1989) c) Retrenchment Compensation Rs. 13,174/- (From 1975 to 1989) Total Rs. 2,02,687/- 4) That the Official Liquidator most respectfully submits that present respondent Mr. N. Jankiraman had appointed on 01081975 and subsequently to the post of Stenographer. The service period of Mr. Navinbhai P. Gadhvi has longer than the present Respondent. Therefore, due to longer service period, Shri N. P. Gadhvi is getting more amount of gratuity and retrenchment compensation in comparison to Shri N. Jankiraman Iyer, the present respondent. 5) In view of above facts and circumstances, it is submitted that the Official Liquidator has paid an amount of Rs. 53,266/-( 26841+26425) being @26.28% of the total reverified claim of Rs. 2,02,687/-of the Respondent till date in order to bring the present Respondent at par with all other workers/employees of the....
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....as submitted the rejoinder and final written arguments of the applicant. Mr. Parikh, learned advocate also relies upon the reports which are filed. For orders, S.O. to 02.12.2016." 17. It is also noteworthy that on 20.09.2016, this Court passed the following order "Mr. Iyer, partyinperson, has contended that in case of his junior, one Mr. N.P. Gadhvi, though the period is less, the backwages as well as grant of gratuity and retrenchment compensation is calculated on enhanced manner whereas in case of the applicant, though the backwages are calculated from 16.04.1997 to 22.12.1989, the amount is wrongly calculated and even the amount shown as gratuity and retrenchment compensation is wrongly calculated. OL shall get it verified by the Chartered Accountant and file further report on or before the next date. S.O. to 17.10.2016." 18. The Official Liquidator has filed a report dated 08.11.2016 in the present application, wherein it is averred thus "7) That, the Official Liquidator most respectfully submits that present respondent Mr. N. Jankiraman had appointed on 01081975 as Stenographer, thereafter. he was terminated on 16041977 whereas Mr. Navinbhal P. Gadhvi had Joine....
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....company and due for a period not exceeding four months within the twelve months next before the relevant date 2[***] subject to the limit specified in subsection (2); (c) all accrued holiday remuneration becoming payable to any employee, or in the case of his death to any other person in his right, on the termination of his employment before, or by the effect of, the winding up order or resolution; (d) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, all amounts due, in respect of contributions payable during the twelve months next before the relevant date, by the company as the employer of any persons, under the Employees' State Insurance Act, 1948 (34 of 1948), or any other law for the time being in force; (e) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, or unless the company has, at the commencement of the winding up, under such a contract with insurers as is mentioned in section 14 of the Workmen's Compensation Act, 1923 (8 of 1923), rights capable of being transferred to and vested in the workman, all....
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.... sufficient to meet them, and in the case of the debts to which priority is given by clause (d) of subsection (1), formal proof thereof shall not be required except in so far as may be otherwise prescribed. (7) In the event of a landlord or other person distraining or having distrained on any goods or effects of the company within three months next before the date of a winding up order, the debts to which priority is given by this section shall be a first charge on the goods or effect so distrained on, or the proceeds of the sale thereof: Provided that, in respect of any money paid under any such charge, the landlord or other person shall have the same rights of priority as the person to whom the payment is made. (8) For the purposes of this section- (a) any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the company during that period; (b) the expression "accrued holiday remuneration" includes, in relation to any person, all sums which, by virtue either of his contract of employment or of any enactment (including any order made or direction give....