Kalyani Concern Pvt. Limited & Anr vs State Of West Bengal & Ors
2023 Latest Caselaw 4880 Cal

Form No.J(2)

                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE

Present :
THE HON'BLE JUSTICE RAJA BASU CHOWDHURY


                             WPA 17963 of 2023

                 Kalyani Concern Pvt. Limited & Anr.
                               Versus
                     State of West Bengal & Ors.


For the petitioners           :      Mr. P.B.Chowdhury
                                     Mr. S.K.Singh
                                     Mr. Ravi Kumar Dubey

For the respondent nos.3-6    :       Mr. Abhrajit Mitra, Sr. Adv.

Mr. Shaunak Mitra Mr. Dripto Majumdar Mr. Bikash Shaw

For the State : Mr. Somnath Ganguli, Ld. AGP Mr. Balarko Sen

Heard on : 09.08.2023

Judgment on : 09.08.2023

Raja Basu Chowdhury, J:

1. The petitioners claim to be a shareholder of West Bengal Agro

Textile Corporation Limited (hereinafter referred to as the "said

Company"). The petitioners say that the Government of West

Bengal is also having 26.06 per cent share in the said Company.

The said company has a Jute Mill, namely, Bharat Jute Mills

which is situated at Makardha Road, Dasnagar, Howrah.

According to the petitioners, the company had been functioning

under the directorship of Mr. Manoj Kumar Taparia, Vinod

Kumar Bagaria and Mr. Dev Bagaria.

2. It is the petitioners' case that on 24th February, 2023, the said

Mr. Vinod Kumar Bagaria, the respondent no.3 herein, had

illegally removed Mr. Manjoj Kumar Taparia from the directorship

of the said Company and introduced two new persons as

directors of the said Company. By reasons of the aforesaid illegal

act, the petitioners were compelled to lodge an FIR.

Unfortunately, according to the petitioners, the said Mr. Vinod

Kumar Bagaria had stopped the operation of the bank account of

Bharat Jute Mills maintained with the Axis Bank Ltd. and as a

consequence thereof, the functioning of the Jute Mills came to a

complete halt on and from 3rd April, 2023.

3. Regarding non-payment of wages to the workers and the

functioning of the Jute Mills, a conciliation proceeding had been

initiated by one of the operating unions, namely, National

Federation of Jute Workers. To expedite the aforesaid proceeding,

inter alia, including disbursement of arrear wages in favour of the

workers, a writ petition was filed by the aforesaid union, which

was registered as WPA 11544 of 2023. It is in connection with the

aforesaid writ application, by an order dated 11th May, 2023, this

Hon'ble Court taking note of the submissions of the learned

advocates for the parties, which also included the petitioners,

granted liberty to the parties to approach the concerned Joint

Labour Commissioner, to arrive at a settlement, if possible. It

was, inter alia, further provided therein that in the event any

such application is filed, the Joint Labour Commissioner shall

organise a meeting within 15 days from the date of receipt of

such application.

4. In terms of the aforesaid order, some of the parties to the said

writ application having approached the conciliation officer, by a

memo dated 14th July, 2023, the conciliation officer was, inter

alia, pleased to invite the parties for a joint conference on 17 th

July, 2023. In terms of the said notice, a meeting was held on

17th July, 2023, as also on 24th July, 2023. As would appear

from the minutes of the meeting held on 24th July, 2023, it was,

inter alia, recorded as follows:-

"Both parties are present in today's discussion. Have discussions with them. After protracted discussions, both the unions and the management are agreed to the following points:

1. The mill shall resume production from 02.08.2023.

2. All kinds of preparatory works including maintenance work, restoration of electricity etc. will be completed by 02.08.2023 i.e., prior to production of the mill.

3. The management shall arrange to pay an amount as advance to their workmen after starting of production of the mill and within next salary date.

4. During discussions, the unions apprises the management about the dues of workers of the mill and both parties decide that a tripartite meeting will be held in this office of the Joint Labour Commissioner (P), Howrah within one month after starting production of the mill.

5. The management shall take all necessary with the ESIC Authority so that the workers can get all facilities under ESIC scheme from the very date of starting of production of the mill i.e., on and from 02.08.2023.

6. All other issues, if left, will be discussed and decided in the next tripartite meeting.

7. Both the management and the unions will cooperate each other for smooth running of the mill.

8. It is agreed that the workers will not interfere into the internal activities of the management.

9. It is agreed by both parties that the management will lift one truck finished good (64 to 65 bales) before 02.08.2023, if required."

5. Being aggrieved with the failure on the part of the respondent

no.2 to invite the petitioners for participating in the aforesaid

conciliation process, and questioning the authority of the

respondent nos. 3 to 6 to remove the finished products from the

Jute Mill, the present writ application has been filed.

6. Mr. Chowdhury, learned advocate appearing for the petitioners,

by drawing attention of this Court to the minutes of the meeting

of the Extra-Ordinary General Meeting of the members of the said

Company, held on 15th May, 2023, submits that in such meeting

it had been resolved to appoint Mr. Krishna Murari Koyal, Mr.

Manoj Kumar Taparia and Ms. Jyoti Mohan Mall as directors of

the said Company with immediate effect, and by the said

resolution, it had also been resolved to remove Mr. Vinod Kumar

Bagaria and Mr. Dev Bagaria, as directors of the said company.

7. By placing reliance on the provisions of Section 12 and Section

18 of the Industrial Disputes Act, 1947 (hereinafter referred to as

the "said Act"), it is submitted that a Conciliation Officer is

required to notify all interested parties to a dispute before

arriving at a settlement. A settlement reached by way of

conciliation is not only binding on the parties to the settlement

but on all and sundry. As such no settlement could have taken

place in absence of the petitioners. The least what was required

of the respondent no.2, was to serve a notice of the conciliation

proceeding on the petitioners, especially when the petitioners are

not only the share holders but also the directors of the Company.

8. By drawing attention of this Court to the memo of the conciliation

proceeding dated 14th July, 2023, it is submitted that Howrah

Mills Co. Ltd., which is a share holder, had also been invited by

the Conciliation Officer. Unfortunately, in the case of the

petitioners, no such invitation had been forwarded. He submits

that the respondent nos. 3 to 6 are clandestinely removing the

finished products and unless appropriate protection is extended

to the Company, the petitioners as also the workers shall suffer

irreparable loss, injury and/or prejudice.

9. Mr. Chowdhury, by placing reliance on a judgment delivered in

the case of Krishnarajendra Mills Workers Union v. Assistant

Labour Commissioner and Conciliation Officer and Ors.,

reported in ILR 1968 Mys 14, submits that it is the duty of the

Conciliation Officer to not only notify the parties to the dispute

but to find out what the actual dispute between the parties is,

and only on the basis thereof, to encourage the parties to enter

into a fair and amicable settlement of the dispute.

10. It is submitted that since, a duty is casted on the Conciliation

Officer to notify all interested parties, the least that was expected

from the Conciliation Officer was a notice to participate in the

conciliation proceeding. The same has not been done. This

Hon'ble Court should issue necessary directions so as to permit

the petitioners to participate in the aforesaid conciliation

proceeding.

11. Per contra, Mr. Mitra, learned advocate appearing for the

respondent nos. 3 to 6, on the other hand, by placing reliance on

the Company Master Data, submits that the name of the

petitioners do not appear as directors of the said Company.

Challenging the aforesaid Master Data, a Company Petition being

no. 136/KB/2023 has been field before the National Company

Law Tribunal (in short, NCLT), Kolkata Bench by the petitioners.

By drawing the attention of this Court to the reliefs, sought for in

the said company petition, it is submitted that the petitioners are

only interested in taking charge of the management and affairs of

the company and for such reason, want the Board of Directors of

the Company to be superseded.

12. According to Mr. Mitra, if the petitioners were the directors of the

Company, then there was no necessity for the petitioners to file

the aforesaid company petition, which incidentally after

conclusion of hearing, has now been reserved for judgment, as

would appear from the order sheet of the NCLT dated 15th June,

2023. It is submitted that no interim order had been passed in

favour of the petitioners in connection with the aforesaid

company petition. What the petitioners could not achieve from

the NCLT, they are trying to achieve, by filing the present writ

application.

13. It is submitted that steps have already been taken for reopening

of the Jute Mill. Workers' dues have been cleared to the extent of

Rs.43,00,000/- up to March, 2023. The Jute Mill at present is

operational. The petitioners have no right to represent the

Company. No relief should be afforded in favour of the

petitioners.

14. Mr. Ganguli, learned AGP appearing for the State, submits that

the Jute Mill is already operational.

15. Heard the learned advocates appearing for the respective parties

and considered the materials on record.

16. I find from the documents on record that a company petition, as

regards the control of the management and affairs of the

company is pending adjudication before the NCLT. Although, it

has been strenuously argued by Mr. Chowdhury, by placing

reliance on the minutes of the Extra-Ordinary General Meeting

dated 15th May, 2023, that the respondent nos. 3 to 6 have been

ousted and the petitioners have been appointed as directors of

the said Company, the Company Master Data does not support

such contention.

17. The right of the petitioners to participate in the conciliation

proceedings, in my view, must depend upon the outcome of the

company petition being CP no. 136/KB/2023. Independent of the

above when the order dated 11th May, 2023, was passed in WPA

11544 of 2023, despite the petitioners being parties to such

proceedings, no prayer was made by the petitioners to seek for

leave to participate in the said conciliation process. Admittedly,

the petitioners have also not applied before the Conciliation

Officer seeking permission to participate in the conciliation

process.

18. It is well settled that a judgment is an authority for what it

decides and not, what can be logically deduced therefrom, a

slight variation in facts may alter the final outcome. In the

present facts, the case of Krishnarajendra Mills Workers

Union (supra), does not come in aid of the petitioners.

19. In the conspectus of facts, as noted above, I am of the view that

by reasons of the challenge thrown by the petitioners before the

NCLT in CP no. 136/KB/2023, the right, if any, of the petitioners

to participate in the conciliation, would depend upon the

outcome of company petition being CP no. 136/KB/2023.

20. Having regard to the same, I am of the view that the petitioners

are not entitled to any relief at this stage.

21. The writ application, therefore, fails and is accordingly dismissed

without any order as to costs.

(Raja Basu Chowdhury, J.)

LATER

22. After the judgment is delivered, Mr. Chowdhury, learned advocate

appearing for the petitioners, seeks leave to proceed before the

NCLT to bring the factum of the Extra-Ordinary General Meeting

as aforesaid to the notice of the NCLT.

23. In my view, no such leave is necessary, to approach the NCLT.

(Raja Basu Chowdhury, J.)

Saswata Assistant Registrar (Court)