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2022 (9) TMI 569
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.... "(I) Call for the records relating to Exhibit P5 order and to quash the same by a writ of certiorari or such other appropriate writ, order or direction. (ii) Stay all further proceedings before the 14th Respondent Central Government Industrial Tribunal cum Labour Court which are scheduled to start on 20.03.2020 as is evident from Exhibit P6 order. (iii) declare that the Petitioner, who is a mere share holder, cannot be made a party to proceedings under the ID Act against the 11th Respondent Company. (iv) Issue such appropriate interim, incidental or other orders as may be deemed just and necessary in the facts and circumstances of the case. Prayers in W.P.(C)No.5187/2020 (second petition): (i) Call for the records relating to Exhibit P4 order and to quash the same by a writ of certiorari or such other appropriate writ, order or direction. (ii) Stay all further proceedings before the 14th Respondent Central Government Industrial Tribunal cum Labour Court which are likely to be in pursuant to Exhibit P4 order. (iii) declare that the State Government is the appropriate Government under the scheme of the industrial Disputes ....
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....ntioned. 4. Order dated 09.01.2020 Ext.P4 in the second writ petition i.e., Ext.P5 in the first writ petition, has been assailed on behalf of the Company on the premise that the Central Tribunal would not be having a jurisdiction to entertain and try the dispute referred by the appropriate Government for, Rubber Board India Private Limited is a company established under the Companies Act and is not controlled and run or managed by the Central Government. It has own Board of Directors and is a juristic person runs through resolutions passed from time to time as well as the Annual General Meeting. Owing to the definition of the provisions of Section 10, appropriate Government would be the "State" and therefore the matter is required to be referred to Labour Court established by the State Government. An 'appropriate Government' as per the definition of Section 2(a)(ii) would unambiguously lead to an irresistible conclusion that the dispute of such nature can be adjudicated only by Labour Court in respect of State Public Undertaking. 5. In support of the aforementioned contention the judgment of Honourable Supreme Court in Heavy Engineering Mazdoor Union Vs. State of Biha....
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....s Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948), or the Central Board of Trustees and the State Boards of Trustees constituted under section 5-A and section 5-B, respectively, of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the Life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or [the Oil and Natural Gas Corporation Limited registered under the Companies Act, 1956 (1 of 1956)], or the Deposit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established under section 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963, or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16 of the Food Corporations Act, 1964 (37 of 1964), or [the Airports Authority of India constituted under section 3 of the Airports Authority of India....
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....estion arises for adjudication is whether Rubber Wood India Private Limited, first petitioner in the second petition, can be said to be controlled and managed by the Central Government or not. To answer the aforementioned question it would be axiomatic to reproduce Section 4 of the Rubber Act, 1947. It provides that after the Constitution of the Board and the commencement of this Act, the Central Government shall, by notification in the official Gazette constitute for the purpose of the Act, to be called as Rubber Board. "4. Constitution of the Board (1) As soon as may be after the commencement of this Act, the Central Government shall, by notification in the Official Gazette, constitute for the purposes of this Act, a Board to be called the Rubber Board (2) The Board shall be a body corporate by the name of the Rubber Board having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and shall by the said name sue and be sued. (3) The Board shall consist of - (a) a Chairman to be appointed by the Central Government (b) two members to represent the State of ....
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....one from Department of Agriculture and Co-operation, three members of Parliament of whom two shall be elected by the House of people and one by Council of States. 12. The dispute with regard to interpretation of the expression 'appropriate Government' defined under Section 2 of Industrial Disputes Act, 1947 (hereinafter referred to as 'ID Act' , for short) read with erstwhile provisions of Sections 617 of the Companies Act, 1956 arose before Supreme Court in Heavy Engineering Mazdoor Union (supra) wherein Heavy Engineering Corporation, a Company incorporated under the Companies Act was in a litigation with the employees and matter was referred, by interpreting the provisions of Section 2(a) of ID Act, by Central Tribunal noticing that the entire share capital was contributed by the Central Government and all its shares were registered in the name of President of India and certain officers. Noticing all these facts, in Paragraph No.6 it was held that meaning of the word 'employer' given in Section 2(g) of the ID Act would mean in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority....
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....ion sole would not be the criteria relevant to decide whether it is by or under control of the appropriate government under the Act. If a corporation is an instrumentality of the State or a company owned wholly or partially by a share capital floated from the public ex-checker and give indicia that it is controlled by or under the authority of the appropriate Government, it would not mean that the Central Government having a majority share holder, the dispute would be referred to Central Tribunal. 16. In respect of a dispute between the employees of the Steel Authority of India matter reached the Honourable Supreme Court in a decision reported as (2001 (7) SCC 1) Steel Authority of India Limited Vs. National Union Water front Workers and others wherein, after due deliberation of the judgments referred to above, the view expressed in the Heavy Engineering Mazdoor Union was affirmed with further finding that whether a particular instrumentality or a company would be controlled by or under the Central Government would depend upon facts of each case. The finding to that aspect was held in Paragraph No.46 of the judgment in Steel Authority of India Limited and Others (supra) and the ....
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....t exceeding two in aggregate. iv) Remaining two Directors to be appointed by the Company in General meeting. 31. The Board may appoint a Director nominated by Rubber Board as the Chairman of the Company. The Chairman shall preside over the general meetings and the meetings of the Board of Directors. In the absence of Chairman in any meeting, the Annual General Meeting or the Board of Directors, may, as the case may be, elect a person to preside over such meeting." 18. On examination of the above, it is evident that Rubberwood India Private Limited is an instrumentality of the Central Government, has been established under the Rubber Act, 1947 (Central Act) and the membership of the Company has been restricted to only Rubber Board, Andamans Timber Industries Limited, Kerala State Industrial Development Corporation Limited (KSIDC) and any other person/Registered Co-operative Societies /Company formed under the Companies Act, 1956 /Statutory Bodies approved by the Board. Rubber Board shall have the power to nominate five Directors, KSIDC shall have the power to nominate one Director and Financial institutions, banks extending loan to the Company may nominate one D....
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....g to me, based upon the facts and circumstances of the case, is perfectly illegal and justified and would not warrant any interference to form a different opinion that by accepting the argument of the petitioner in the second writ petition that it would be a State Government and the matter requires to be referred to the Labour Court. 22. Now the question further raises is, after the appointment of the Interim Resolution Professional whether the reference to the Central Tribunal can be permitted to continue or workmen represented by the Union are required to submit the claims before him. For answering the aforementioned question, it would be necessary for me to refer certain provisions of Insolvency and bankruptcy Code, 2016. Sections 10, 13, 18 of the Code and Regulation 9 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 read as follows: 10. Initiation of corporate insolvency resolution process by corporate applicant (1) Where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating corporate insolvency resolution process with the Adjud....
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.... resolution professional shall perform the following duties, namely: (a) collect all information relating to the assets, finances and operations of the corporate debtor for determining the financial position of the corporate debtor, including information relating to (i) business operations for the previous two years; (ii) financial and operational payments for the previous two years; (iii) list of assets and liabilities as on the initiation date; and (iv) such other matters as may be specified; (b) receive and collate all the claims submitted by creditors to him, pursuant to the public announcement made under sections 13 and 15, (c) constitute a committee of creditors; (d) monitor the assets of the corporate debtor and manage its operations until a resolution professional is appointed by the committee of creditors; (e) file information collected with the information utility, if necessary; and (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of se....
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....been made; or (iii) an order of a court or tribunal that has adjudicated upon the non-payment of a dues, if any." 23. Regulation 9 provides that a person claiming to be a workman or employee of the corporate debtor, which in present case would be Rubberwood India Private Limited represented through Interim Resolution Professional, shall submit a claim with proof to said Professional in person, by posts or by electronic forms prescribed in Form D of the Schedule. It can also submit supplementary documents or clarifications in support of the claim and for the dues more than one workman or employee any authorised representative is permitted to submit one claim. As far as the existence of dues to workmen and employees are required to be proved, it has to be on the basis of record available with the information utility, if any or other relevant documents including proof of the employment, evidence of notice demanding payment, order of a Court or a Tribunal. Interim Resolution Professional can also be rendered as a corporate director and is also enjoined upon an obligation to refer a claim before the NCLT viz-a-viz of the workman. But on reading of the Regulation 9, a very an....