HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 18.5.2011. Delivered on 27.5.2011. Case :- WRIT - C No. - 10954 of 2011 Petitioner :- I.E.L. Supervisors Association. Respondent :- Union Of India & Others Petitioner Counsel :- Miss. Bushra Maryam Respondent Counsel :- A.S.G.I.,Yashwant Varma ::::::::::: Hon'ble Ashok Bhushan,J.
Hon'ble Ran Vijai Singh,J.
Heard Miss. Bushra Maryam, learned counsel for the petitioner and Sri Yashwant Verma, learned counsel appearing for respondent No.3. The Assistant Solicitor General of India has accepted notice on behalf of respondent No.1.
The petitioner claims to be an unrecognised Union of M/s Duncan Industries Limited. The respondent No.3, the company, made a reference to the Board for Industrial and Financial Reconstruction (hereinafter referred to as the BIFR) in accordance with the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the 1985 Act) for taking measures. Petitioner moved an application on 21st September, 2006 before the BIFR for being impleaded as one of the necessary parties in the proceedings. The BIFR vide its proceedings dated 9th December, 2010 declined the request of the petitioner for being impleaded in the proceeding. The petitioner has come up in this writ petition praying for following relief:-
(i) to issue a writ order or direction in the nature of certiorari commanding the Respondent No.2 to bring up the records of the Proceedings dated 09.12.2010 being held in Case No.70 of 2006 and gets its Order quashed by this Hon'ble Court.
(ii) to issue a writ order or direction in the nature of mandamus commanding the Respondent No.2 to stay the proceedings of the Case No.70 of 2006, M/s Duncon Industries Limited during the pendency of the present writ petition.
(iii) to issue a writ order or direction in the nature of mandamus commanding the respondent No.2 to implead the Petitioner Association as one of the necessary party to the Case No.70 of 2006, M/s Duncon Industries Limited is pending before the Hon'ble Board for Industrial and Financial Reconstruction, New Delhi.
(iv) to issue a writ order or direction in the nature of mandamus commanding the Respondent No.2, 3 to provide the copy of the revised draft of the Rehabilitation Scheme to the Petitioner Association which is being submitted by the Respondent No.3 before the Respondent No.2."
Miss. Bushra Maryam, learned counsel for the petitioner, in support of the writ petition, has submitted that even an unrecognised Union is entitled to espouse the cause of its members. It is submitted that it is not at all necessary for participation before the BIFR that Union should be recognised Union by the Company. It is further submitted that petitioner's association has been impliedly participating in the proceedings since 2006 till 2010. It is submitted that apart from recognised Union, i.e., I.E.L. Employees Association which has been recognised by the Company, several other Unions, which are not recognised, are permitted participation in the proceeding before the BIFR whereas petitioner's application for impleadment has been rejected. It is submitted that liability of the petitioner's association towards the Company is about Rs.31,14,00,000/- and since the petitioner's association is not being permitted to participate in the proceeding, the claim against respondent No.3 shall not at all be included in the revised draft rehabilitation scheme. It is submitted that against the cancellation of registration of the petitioner's Union, which was made during pendency of the writ petition, the petitioner has already filed an appeal before the competent authority. It is further submitted that according to the principles of Audi alteram pertem, the petitioner cannot denied hearing in the proceedings. In support of her submissions, learned counsel for the petitioner has placed reliance on the judgments of the Apex Court in the cases of National Textile Workers' Union vs. P.R. Ramakrishnan and others reported in 1983 (46) FLR 39, Fertilisers and Chemicals Travancore Ltd vs. E.S.I. Corporation reported in 2009(123) FLR 491, Employees State Insurance Corporation vs. Bhakhra Vyas Management Board and another reported in 2009(12) J.T. 441 and Olga Tellis vs. Bombay Municipal Corporation reported in A.I.R. 1986 S.C. 180.
It is further submitted that welfare legislation are to be interpreted in favour of the beneficiary. For this proposition learned counsel for the petitioner has placed reliance on the judgments of the Apex Court in the cases of Harjinder Singh vs. Punjab State Warehousing Corporation reported in 2010(124) FLR 700 and Sant Ram vs. Rajinder Lal reported in A.I.R. 1978 S.C. 1601. Learned counsel for the petitioner has further submitted that reliance of the BIFR in the impugned order on the judgment of the Apex Court in the case of Chairman, State Bank of India and another vs. All Orissa State Bank Officers Association reported in 2002(94) F.L.R. 338 is not appropriate. It is submitted that in another part of the same judgment it is held that certain right are also vested in the unrecognised Union. It is further submitted that in case petitioner's association is not impleaded, the claim of its members shall go unrepresented and it would be difficult to satisfy the claim of the petitioner's association.
Sri Yashwant Verma, learned counsel appearing for respondent No.3, refuting the submissions of learned counsel for the petitioner, has contended that the BIFR has rightly rejected the petitioner's application for impleadment. It is submitted that the person who has filed the affidavit in support of the writ petition, namely, Kailash Kumar, himself has filed an application dated 7th January, 2011 before the BIFR claiming payment of Rs.3,30,127.20. The said application was filed in the individual capacity of Kailash Kumar which is pending consideration. It is submitted that writ petition is barred on the ground of statutory alternate remedy since under Section 25 of the 1985 Act, the statutory appeal has been provided before the appellate authority (AAIFR). It is submitted that there are total 553 workmen on the roll of Company and out of 553 workmen, 535 (as of now 549) had supported the revival of the company and had individually signed the memorandum of settlement and it was based on the aforesaid memorandum of settlement that a draft rehabilitation scheme has been submitted for consideration of the BIFR. It is submitted that BIFR has further taken note of the contention that there are only 33 supervisors out of which 13 were still working while 20 had retired. Even out of aforesaid 20 retired supervisors, 16 had executed a settlement accepting the terms of waiver and supported the draft rehabilitation scheme while remaining four could not be made party the settlement as they could not be traced out. It is stated that out of the existing 13 supervisors, 10 supervisors had already executed the settlement accepting the terms of the draft rehabilitation scheme and only three supervisors remained to be made party to the settlement. It is thus submitted that substantially all the supervisors i.e. 26 out of 33 have signed the settlement. It is submitted that registration of petitioner's association has been cancelled by the Registrar, Trade Union by order dated 6th January, 2011, hence petitioner has no locus standi to pray for impleadment. Learned counsel for respondent No.3 has further submitted that draft rehabilitation scheme is yet to be published under Section 18 of the 1985 Act and all employees shall have right to file objections and the BIFR is obliged to consider such objections, hence the application of the petitioner is premature.
We have considered the submissions of learned counsel for the parties and have perused the record.
It is not disputed that petitioner's association is not a recognised Union by the Company. It is further not disputed that petitioner's registration under the Trade Union Act has been cancelled by the Registrar, Trade Union vide its order dated 6th January, 2011 and according to the petitioner appeal has been filed against the order of Registrar which is pending consideration.
From the facts as brought on the record i.e. the proceedings of the BIFR held on 21st October, 2010 (Annexure-9 to the writ petition), it is clear that BIFR has noted that in the proceeding held on 26th May, 2009 I.E.L. Mazdoor Union was impleaded as party in company's case. An appeal was filed by the Company against the said order and the appellate authority (AAIFR) vide its order dated 3rd July, 2009 stayed the impleadment of I.E.L. Mazdoor Union. In the rejoinder affidavit filed by the petitioner although it has been stated that the interim order has been vacated but it is clear that against the impleadment of one of the Unions appeal was filed.
Learned counsel for the respondents has placed reliance on Section 25 of the 1985 Act. Section 25 of the 1985 Act reads as under:-
"25. Appeal (1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the appellate authority:
PROVIDED that the appellate authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the appellate authority may, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against or remand the matter to the Board for fresh consideration."
The right of appeal thus, has been given to aggrieved person against an order of the BIFR made under the 1985 Act within 45 days from the date on which copy of the order is issued to him. Petitioner's case in the writ petition is that copy of the order dated 9th December, 2010 was issued by the BIFR on 29th December, 2010 which could be received by the petitioner on 7th January, 2011. The petitioner within 45 days from the aforesaid date in spite of filing an appeal under Section 25 of the 1985 Act, has filed this writ petition on 21st February, 2011.
One of the apprehensions, which has been raised by the counsel for the petitioner, is that in the draft rehabilitation scheme the claim of the petitioner's association may not be included and unless the petitioner is impleaded in the proceeding it shall be difficult for the members of the petitioner's association to get their claim satisfied. It has been submitted on behalf of respondent No.3 that draft rehabilitation scheme prepared under Section 18 of the Act, has not yet been published. Section 18(3) of the 1985 Act, which is relevant in the present case, reads as under:-
"18. Preparation and sanction of schemes (1) ...........
(2) ...........
(3) 3[(a) The scheme prepared by the operating agency shall be examined by the Board and a copy of the scheme with modification, if any, made by the Board shall be sent, in draft, to the sick industrial company and the operating agency and in the case of amalgamation, also to any other company concerned, and the Board shall publish or cause to be published the draft scheme in brief in such daily newspapers as the Board may consider necessary, for suggestions and objections, if any, within such period as the Board may specify.]
(b) The Board may make such modifications, if any, in the draft schemes as it may consider necessary in the light of the suggestions and objections received from the sick industrial company and the operating agency and also from the transferee company]and any other company concerned in the amalgamation and from any shareholder or any creditors or employees of such companies:
PROVIDED that where the scheme relates to amalgamation, the said scheme shall be laid before the company other than the sick industrial company in the general meeting for the approval of the scheme by its shareholders and no such scheme shall be proceeded with unless it has been approved, with or without modification, by a special resolution passed by the shareholders of the transferee company."
The draft rehabilitation scheme under Section 18(3) of the 1985 Act has not yet been published. Section 18(3)(b) of the 1983 Act clearly contemplates that the draft rehabilitation scheme can be modified by the Board in the light of the suggestions and objections received from Company and the operating agency and also from the transferee company and any other company concerned in the amalgamation and from any shareholder or any creditors or employees of such companies. The right of objection under Section 18(3)(b) is given to every employee of the Company. The apprehension of the petitioner that claim of the members of the petitioner's association shall go unconsidered cannot be accepted in view of the specific provisions of Section 18(3)(b) of the 1985 Act. It is thus clearly open to every employee of the company to raise their written objection as contemplated under Section 18(3)(b) of the 1985 Act.
As noticed above, against any order passed under the 1985 Act there is statutory remedy of appeal under Section 25 of the 1985 Act. In the same proceedings against the impleadment of one of the Unions, namely, I.E.L. Mazdoor Union an appeal was filed in which initially an interim order was also granted by the appellate authority (AAIFR). The petitioner, who is aggrieved by the order dated 9th December, 2010 can very well avail the remedy of appeal before the appellate authority.
In facts of the present case ends of justice be served in disposing of the writ petition with the following directions:-
(i)In the event an appeal is filed by the petitioner within one month from today before the appellate authority against the order dated 9th December, 2010 rejecting its impleadment application, the same shall be considered and decided by the appellate authority on merits without raising any objection regarding limitation.
(ii)Any objection raised by the members of the petitioner's association as contemplated under Section 18(3)(b) of the 1985 Act filed against the draft rehabilitation scheme shall be considered before finalising the rehabilitation scheme.
The writ petition is disposed of accordingly.
Date :- 27.5.2011.
Rakesh