IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
Thursday, the 26th day of May 2022 / 5th Jyaishta, 1944
WA NO. 601 OF 2022
AGAINST JUDGMENT DATED 02.03.2022 IN WP(C) 26786/2018 OF THIS COURT
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APPELLANTS/PETITIONERS 1,4 TO 49:
1. P.V. NARAYANAN, AGED 72 YEARS , K.V. GARDENS NO.8, PULLERI,
PEROORKADA, THIRUVANANTHAPURAM - 695 005.
BY ADV. PIRAPPANCODE V.S.SUDHIR
AND 46 OTHERS.
RESPONDENTS/RESPONDENTS:
1. KELTRON PROJECTORS LTD., PEROORKADA, THIRUVANANTHAPURAM, PIN - 695
005.
AND 2 OTHERS.
BY STANDING COUNSEL SRI.M.A.ZOHARA FOR R2
SENIOR GOVERNMENT PLEADER FOR R3
K.MONI, STANDING COUNSEL FOR OFFICIAL LIQUIDATOR
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to direct the respondents to disburse the Voluntary Retirement Scheme at
the rate of 30 days wages, for every completed year of service, to the
petitioners, pending disposal of the Writ Appeal.
This Writ Appeal again coming on for orders on 26/05/2022 upon
perusing the appeal memorandum and this court's order dated
23/05/2022, the court on the same day passed the following:
P.T.O.
EXT.P6:TRUE COPY OF THE LETTER NO.36634/D3/2006/ID
DATED 27.5.2010 OF THE 3RD RESPONDENT.
EXT.P16:TRUE COPY OF THE NOTE FILE NO.36634/D3/2006/ID.
EXT.P27:TRUE COPY OF THE G.O.(MS) NO.91/12/ID DATED 30.7.2012.
EXT.P34:TRUE COPY OF THE JUDGMENT DATED 21.11.2016
OF THIS HON'BLE COURT IN W.P.(C) NO.31111/2010.
EXT.P38:TRUE COPY OF THE G.O.(RT) NO.930/2017/ID
DATED 28.6.2017 OF THE 1ST RESPONDENT.
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ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
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W.A. No.601 of 2022
[arising out of the impugned judgment dated 02.03.2022 in W.P.(C) No.26786/2018]
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Dated this the 26th day of May, 2022
ORDER
Sri.K.Moni, Standing Counsel for the Official Liquidator submits that the 1st respondent Keltron Projectors Limited (KPL) was earlier under liquidation process in Company Petition, C.P. No.44/2004, later order dated 06.12.2019 has been passed dissolving the company under Sec.559 of the Companies Act and therefore the company is no longer in existence. Further, for the sake of convenience the 1 st respondent KPL has been impleaded as a respondent in the writ proceedings as well as in the writ appeal and a company under liquidation can be represented only by the Official Liquidator. For the time being, it is ordered that the name of Sri.K.Moni, learned Standing Counsel for the Official Liquidator will be shown in the cause list. Smt.M.A.Zohara, learned Standing Counsel for the (Kerala State Electronics Development Corporation-KSEDC) (KELTRON) has taken notice before admission for the 2nd respondent and the learned Senior Government Pleader has W.A. No.601 of 2022 2 taken notice before admission to the 3rd respondent State of Kerala.
2. Sri.Pirappancode V.S.Sudheer, learned counsel appearing for the appellant, would submit that it is admitted by the respondent State Government in Ext.P27 G.O.(MS) No.91/12/ID dated 30.07.2012 that, out of the total 39,134 shares of the 1 st respondent KPL, the 2nd respondent KELTRON held 19,574 shares (including nominee shares of Rs.10/- each) and that this constitutes 50.02% of the share holding in the 1st respondent KPL by the 2nd respondent KELTRON. It is pointed out that, in view of this admitted fact, it is clear that the 2 nd respondent KELTRON has held 19,574 shares and the others held 19,567 shares out of the total 39,134 shares in the 1 st respondent KPL and it is thus, more than 50% as admitted in Ext.P27. Hence, it is contended by the appellants that the 1 st respondent KPL would be a 'subsidiary' of the 2nd respondent KELTRON, in terms of Sec.4(1)((b)(ii) of the Companies Act, 1956. Since what is stipulated therein is only that the other company, named KELTRON holds more than half in nominal value of the equity share capital of the 1 st respondent KPL and that since 50.02% of the shares is held by the 2 nd respondent KELTRON, the 1st respondent KPL is a subsidiary of the 2nd respondent KELTRON, etc. Hence, it is urged that since the 1 st W.A. No.601 of 2022 3 respondent KPL is a subsidiary of the 2 nd KELTRON, the former is also a Government company within the meaning of Sec.2(18) read with Sec.617 of the Companies Act, 1956 inasmuch as the last limb of Sec.617 would be satisfied.
3. On this basis, it is urged that the substratum of the reasonings contained in Ext.P38 G.O.(Rt) No.930/2017/ID dated 28.06.2017, rejecting the claims of the appellants would crumble down. Further that, it is also admitted by the respondent State Government in para Nos.61 & 65 of Ext.P16 Government Notes (which led to the previous rejection order as per Ext.P6 which is the subject matter of Ext.P34 judgment of this Court), that 45 days package has been implemented by the 2nd respondent KELTRON in the case of its own employees as well as the employees of other subsidiary companies of KELTRON such as KPDL, KCL, etc. Further that the main direction issued by this Court as per Ext.P34 judgment dated 21.11.2016 in W.P. (C) No.31111/2010 is that the respondent State Government should seriously consider as to whether the benefits given to other subsidiary companies of the respondent KELTRON could be extended in the case of the appellants, who were employees of the 1st respondent KPL. That, since, it is thus factually and legally established that the 1 st respondent W.A. No.601 of 2022 4 KPL is a subsidiary of the 2 nd respondent KELTRON and therefore it is also a Government company within the meaning of Sec.617 of the Companies Act, 1956, the same treatment as given to other subsidiary companies of KELTRON should also be extended to the appellants and the mere fact that the 2nd respondent KELTRON holds only 50.02% of the total shares in the respondent KPL will not make any difference. Further that, it is reliably learnt that the Government has filed pleadings and statements before the company court (this Court exercising company jurisdiction under the Companies Act, 1956), in the liquidation proceedings of the 1 st respondent KPL that the respondent KPL is a subsidiary of KELTRON and that therefore it is also a Government company within the meaning of Sec.617 of the Companies Act, etc.
4. The competent authority of the State Government in the Industries Department as well as the Managing Director of the 2 nd respondent KELTRON will furnish specific and precise instructions in answer to the abovesaid factual and legal pleas now urged before us by the appellants. If no satisfactory answer is given then we may have to proceed on the basis of existing pleadings and materials. So also the details of the share holding in other subsidiary companies of W.A. No.601 of 2022 5 KELTRON like KPDL, KCL, etc. with regard to shares held by KELTRON, Government, etc. should be apprised to this Court.
5. Sri.Pirappancode V.S. Sudheer, learned counsel appearing for the appellants would point out that the prayers sought for by the appellants both in the W.P.(C) as well as in the present W.A. are all against the respondent State Government and not against the 1 st respondent KPL and therefore the bar under the Companies Act, 1956 for institution of legal proceedings as against a wound-up company in fora other than the company court will not be applicable in the present case.
6. The Official Liquidator will furnish instructions to their learned Standing Counsel, as to the details of the winding up of the company, like the crucial orders passed in the winding up of the company in C.P. No.44/2004 and also the details of the final dissolution order passed under Sec.559 of the Companies Act, etc. and also should apprise this Court as to whether any pleadings by way of affidavit/statement have been filed either by the State Government or by KELTRON in the abovesaid Company Petition No.44/2004, stating as to whether or not the 1 st respondent KPL is a subsidiary of the 2 nd respondent KELTRON and also as to whether or not the 1 st respondent W.A. No.601 of 2022 6 KPL is a Government Company, within the meaning of Sec.617 of the Companies Act, etc. Copies of such pleadings filed by the respondent KELTRON or the respondent State Government in the Company Petition should also be produced along with their statement.
7. The learned Standing Counsel for the 2 nd respondent KELTRON, the learned Senior Government Pleader and the learned Standing Counsel for the Official Liquidator seeks short time to get instructions and to file their statements, if any, in the meanwhile.
List the case on 07.06.2022.
Hand Over a copy of this order to both sides.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
SHOBA ANNAMMA EAPEN,
JUDGE
Skk//26052022
26-05-2022 /True Copy/ Assistant Registrar