M/S. Ferro Alloys Corp. Ltd. vs The Presiding Officer
2023 Latest Caselaw 10261 Ori

           ORISSA HIGH COURT : C U T T A C K
                       W.P.(C) No. 21154 OF 2023
                  An application under Articles 226 & 227 of
                       the Constitution of India.


M/s. Ferro Alloys Corp. Ltd., Bhadrak                    : Petitioner

                               -Versus-

The Presiding Officer, Labour Court,
Bhubaneswar and another                               : Opposite Parties


      For Petitioner                  : Mr. L. Mishra, Adv.
                                        Mr. A. Agarwal, Adv.
                                        Mr. J. Sahoo, Adv.
                                        Mr. S. Agrawal, Adv.

      For O.P. No.1                   : Mr. S. P. Panda, AGA

                               JUDGMENT

CORAM :

JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO

Date of Hearing & Judgment : 29.08.2023

1. This matter is heard on the question of admission on several

dates. Earlier Petitioner got represented by Mr. S.K. Acharya,

learned counsel later on learned counsel for the Petitioner got

substituted and last two dates, the matter is being argued by Mr.

Lalitendu Mishra representing the Petitioner.

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2. This Writ Petition involves a challenge to the impugned

order dated 16.03.2023 vide Annexure-6 running page-148 of the

brief, an order passed by the Labour Court, Bhubaneswar in the

Industrial Dispute Misc. Case No.63 of 2021 involving an

adjudication under Section 33-C(2) of the I.D. Act, 1947 in the

execution of award passed in I.D. Case No.60 of 1990.

3. Factual background involved herein appears to be private

Opposite Party No.2 was appointed by the Petitioner as Watchman

on 02.08.1982 and ultimately got terminated from services on

24.10.1986. The Opposite Party No.2 raised complaint alleging that

there is unlawful termination and the matter was taken up for

conciliation by the Labour machinery. For the failure of

conciliation, the matter was referred to Opposite Party No.1 for

Industrial Adjudication. The Opposite Party No.1 registered the

matter as I.D. Case No.60 of 1990 to adjudicate the reference

involved therein. The I.D. Case No.60 of 1990 was concluded by

award dtd.17.02.1999 with following direction:-

<7.Issue N. (i) :-The termination of the workman was done by virtue of the domestic enquiry report and orders of the management dated 21.10.86. Since the domestic enquiry report as well as the orders of the management dated 21.10.86 are held to be not legal and proper, the actions of the management in terminating the workman with effect from 24.10.86 is also not legal and justified. The issue no.(i) is answered accordingly.

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8. Issue No. (iv) :-In view of my findings on the foregoing issues, the workmen is entitled to be reinstated in service, but considering the peculiar nature and circumstances of this case, I feel that the award of back wages at the rate of 50 per cent would meet the ends of justice. The issue No. (iv) is answered accordingly.=

4. Above award clearly held the action of the Management

M/s. Ferro Alloys Corporation Limited, Bhadrak in terminating the

services of Mr. Sunil Kumar Tanti with effect from 24.10.1986 is

not legal and justified. The workman Mr. Tanta is entitled to be

reinstated in service with continuity of service however with 50%

back wages.

5. It is being aggrieved by the award in I.D. Case No.60 of

1990, it appears, the Management-Petitioner challenged the award

vide O.J.C. No.7286 of 1999 before this Court. This Court

disposed of O.J.C No.7286 of 1999 on 11.12.2019 but in

confirmation of the observation of the Tribunal in paragraphs-6, 7

& 8 of the award directed as follows:-

<In view of the aforesaid observations of the learned Tribunal made in paragraphs-6,7 and 8, we are in complete agreement with the view taken by the learned Tribunal. Even otherwise, no case is made out to interfere.

However, learned counsel for the petitioner has stated that now mines are closed. If it is so, it will be open for the petitioner to follow the procedure under the I.D. Act and pay reasonable retrenchment compensation to the applicant keeping in the mind the award passed by the Tribunal.=

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6. Though a Review Petition also involved in this Court in

seeking review of the aforesaid judgment and registered as Review

Petition No.02 of 2020 filed on 08.01.2020, the Management-

Petitioner instead of bringing the order therein simply filed a status

report vide page-26 of the brief. For the statement of learned

counsel for the Petitioner, the order of this Court in O.J.C No.7286

of 1999 though further challenged in Review but the Review

Petition is yet to be entertained and the award thus remains final.

7. The Petitioner for the bad financial condition was meanwhile

admitted into Corporate Insolvency Resolution Process (CIRP)

under IBC vide order dated 06.07.2017 passed by the NCLT

annexed as Annexure-2 to the Writ Petition, the order of NCLT

remains as follows:-

<The petition filed by the Financial Creditor under section 7 of the Insolvency & Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate Resolution Process and declare a moratorium and public announcement as stated in section 13 of IBC 2016. The relevant sections 13 and 14 are reproduced below for the purpose of convenience.

13. Declaration of moratorium and public announcement (1) The Adjudicating Authority, after admission of the application under section 7or section 9 or section 10, shall, by an order-

(a) declare a moratorium for the purposes referred to in section 14;

(b) cause a public announcement of the initiation of corporate insolvency resolution process and call for the submission of claims under section 15; and

(c) appoint an interim resolution professional in the manner as laid down in section 16.

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(2) The public announcement referred to in clause(b) of sub-section(1) shall be made immediately after the appointment of the interim resolution professional.

14. Moratorium (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorim for prohibiting all of the following namely:-

(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including executing of any judgment, decree or order in any court of law, tribunal arbitration panel or other authority;

(b) transforming, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right of beneficial interest therein;

(c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002);

(d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.

(2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.

(4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process.

Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be.= Necessary public announcement as per section 15 of the IBC, 2016 may be made by the Company.

Financial Creditor has also resolved to appoint Mr. K.G.Somani, having registration no. IBBI/I?PA-001/IP- P00300/2017-18/10544 [e-mail address (1) [email protected] to be appointed as interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for appointment of Resolution Professional and for evolving a resolution plan.

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Shri K.G.Somani has submitted his consent in Form-2 under Rule 9 of the insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.

The applicant/petitioner has also certified the fact that Mr.K.G.Somani is fully qualified and permitted to act as an Insolvency Professional in accordance with Code and the Associated Rules and Regulations. Therefore, Mr. K.G.Somani is appointed as Interim Resolution Professional. The Interim Resolution Professional should convene a meeting of the Committee of Creditors and submit the resolution passed by the Committee of Creditors. Let the copy of the order be sent to the Applicant/Financial Creditor as well as Corporate Debtor and I.R.P. List the matter on 22nd July, 2017.

8. In the meantime as per procedure laid down under IBC, a

Committee of creditors was formed and Resolution professional

being appointed it took over the Management. As final outcome,

one Sterlite Power Transmission Limited (SPTL) was declared as

the Successful Resolution Applicant (SRA) and the above

resolution was approved by the NCLT Cuttack Bench vide its order

dated 30.01.2020 at Annexure-3 and 4 respectively. An Appeal

being preferred by erstwhile establishment, the NCLAT confirmed

the order of the NCLT and this order again got confirmed by the

Hon9ble apex Court in its order dated 27.09.2021 vide Annexure-5

herein.

9. It is in the meanwhile for the Management not working out

the direction of Industrial Tribunal in I.D. Case No.60 of 1990, the

workman-Opposite Party No.2 got constrained to initiate a

proceeding under Section 33-C(2) of the I.D. Act to compute the

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back wages @ 50% arrear wages after the back wages period till

Opposite Party No.2 attended the age of superannuation, bonus and

leave salary during his service period and this matter got registered

as I.D. Misc. Case No.63 of 2021. The Opposite Party No.2 led its

claim as an outcome of the award dated 17.02.1999 in I.D. Case

No.60 of 1990 and final award being confirmed vide O.J.C.

No.7286 of 1999.

10. In limiting the challenge to the order in I.D. Misc. Case No.

63 of 2021, Mr. Mishra, learned counsel for the Petitioner

submitted that for there is liquidation of the Petitioner and there is

approval of transfer plan, there is no possibility of admission of

further claim.

The Management-Petitioner also attempted to take help of

the judgment in Ghanashyam Mishra and Sons Private Limited

Vrs. Edelweiss Asset Reconstruction Company Limited, 2021

SCC Online SC 313.

11. The Industrial Adjudication for undertaking the

adjudication exercise in disposal of I.D. Misc. Case No.63 of 2021

held as follows:-

<So, in view of the above discussions, it is held that as per the above Award, the applicant is entitled to 50% back wages from the date of his termination i.e., on 24.10.1986 till the date of passing of Award dtd. 17.02.1999 and thereafter full wages till March,

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2021, i.e., the last date of his claim. Admittedly, in the meantime, the applicant has attained the age of superannuation. There is no serious dispute to the fact that the applicant was getting wages @ Rs.755/-

per month. So, the applicant is entitled to Rs.55,781/- towards his 50% back wages (as per his last wages) for the period from 24.10.1986 to 17.02.1999.

Similarly, the applicant is also entitled to full wages for the period from 18.2.1999 to March, 2021 and to that effect he has also filed a calculation sheet, but the same is not based on any documentary evidence. The material available on the record implies that the applicant was engaged under the OP as a 8Watchman9. In view of the above facts and circumstances, this Court feels it proper to hold that the applicant is coming under the purview of an 8unskilled worker9. So, the applicant is entitled to his wages as per minimum wages fixed by the Govt. from time to time prescribed for the unskilled workers. As per the Minimum wages Act, the applicant is not entitled to any wages for Sundays. Accordingly, the applicant is entitled to Rs.7,90,983/- [Rs.27,880/- i.e., Rs.40 per day from 18.02.1999 to 30.04.2001 (697 days); Rs.8,840/- i.e., Rs.42.50/- from 1.5.2001 to 31.12.2001 (208 days); Rs.15,850/- i.e., Rs.50/- per day from 01.01.2002 to 31.12.2003 (317 days); Rs.16,642/- i.e., Rs.52.50 paise per day from 01.01.2004 to 31.12.2005 (317 days); Rs.23,155/- i.e., Rs.55/- per day from 01.01.2006 to 30.04.2007 (421 days); Rs.46,200/- i.e., Rs70/- per day from 1.5.2007 to 31.05.2009 (660 days); Rs.60,300/- i.e., Rs.90/- per day from 1.6.2009 to 12.07.2011 (670 days); Rs.36,167/- i.e., Rs.92.50 paise per day from 13.07.2011 to 8.10.2012 (391 days); Rs.95,100/- i.e., Rs.150/- per day from 9.10.2012 to 8.10.2014 (634 days); Rs.37,515/- i.e., Rs.152.50 paise per day from 9.10.2014 to 23.07.2015 (246 days); Rs.42,800/- i.e., Rs.200/- per day from 24.07.2015 to 31.03.2016 (214 days); Rs.65,682/- i.e., Rs.207.20 paise per day from 01.04.2016 to 31.03.2017 (317 days); Rs.67,680/- i.e., Rs.213.50 paise per day from 1.4.2017 to 31.03.2018 (317 days); Rs.40,320/- i.e., Rs.224.30 paise per day from 1.4.2018 to 29.10.2018 (180 days); Rs.36,400/- i.e., Rs.280/- per day for the period from 30.10.2018 to 31.03.2019 (130 days); Rs.44,663/- i.e., Rs.286.30 paise per day from 1.4.2019 to 30.09.2019 (156 days); Rs.46,488/- i.e., Rs.298/- per day from 01.10.2019 to 31.03.2020

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(156 days); Rs.47,268/- i.e. Rs.303.40 paise per day from 01.04.2020 to 30.09.2020 (156 days) and Rs.32,033/- per day from 01.10.2020 to 31.01.2021 (104 days)] as per minimum wages prescribed for 8unskilled worker9.

As per the applicant he has already received Rs.1,38,165/- towards compliance of section 17-B of the ID Act from the OP.

With regard to the claim of the applicant for bonus and leave salary, it is noteworthy to mention here that there is no specific order passed in the above Award for entitlement of the applicant to get the same. Hence, the applicant is not entitled to any amount towards bonus and leave salary.

The Misc. Case be and the same is allowed, in part on contest against the OP. The OP. is directed to pay a sum of Rs.7,08,599/- (Rupees Seven Lakh Eight Thousand Five Hundred Ninety-Nine) only (i.e., Rs.55,781/- towards back wages+ Rs.7,90,983/- towards wages- Rs.1,38,165/- towards compliance of section 17-B of ID Act) to the applicant within two months from this order, failing which the applicant is entitled for interest @6% per annum.=

12. Mr. Mishra, learned counsel appearing for the Management-

Petitioner raised the following contentions:-

<4. That it is a settled position of law that as soon as a Resolution Plan is approved by the Hon'ble NCLT u/s. 31(1) of IBC, all the dues of the Corporate Debtor cease to exist especially dues pertaining to period prior to the CIRP of the Corporate Debtor. In the Petitioner's case also, the Petitioner was admitted to CIRP and eventually when the resolution plans were invited for taking over the Petitioner Company, SPTL was declared as the SRA and as soon as the Hon'ble NCLT Cuttack Bench approved the Resolution Plan on 30.01.2020, all the prior dues of the Petitioner company ceased to exist including the dues payable to OP No. 2. Moreover, the order of the Hon'ble NCLT Cuttack Bench clearly specifies that the order will be binding on the Corporate Debtor (i.e. the Petitioner) and its employees, members, all creditors including Central & State Government and local authorities, guarantors and other stakeholders. The said paragraph has been reproduced below:

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"19. The Resolution Plan submitted by Ms Sterlite Power Transmission Limited (SPTL) i.e. Resolution Applicant, approved by 95.15% of voting share in 31 Committee of Creditors Meeting dated 13.11.2019 is APPROVED, as per Section 31 (1) of the Insolvency and Bankruptcy Code, 2016. Accordingly, the same shall be binding on the Corporate Debtor and its employees, members, all creditors including Central and State Government and local authorities, guarantors and other stakeholders."

In fact, even the Hon'ble Supreme Court stamped with finality the Resolution Plan of the Petitioner on 27.09.2021.

5. That Section 31 of the IBC clearly states that the Resolution Plan once approved will be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholder involved in the Resolution Plan. The creditors whose claims are accepted by the Resolution Professional and are acknowledged in the Resolution Plan get paid accordingly. Therefore, any claim relating to period prior to the CIRP automatically extinguishes as soon as the Resolution Plan is approved. The relevant extract of section 31 is reproduced below: "31 (1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan."

6. That it is further submitted that the approved Resolution Plan also bars anyone to claim any amount which does not form the part of the Resolution Plan as on the Plan Effective Date (i.e., date on which Resolution Plan was approved). Moreover, the Resolution Plan also clearly states that apart from admitted workmen dues, any dues be it demand for any losses, damages, interest, back wages, compensation, penal interest liquidated damages already accrued /accruing or in connection with any claims) any present or past, direct or indirect, permanent or temporary employee and /or workmen of the company whether admitted or not, due or contingent, asserted or unasserted, crystalized or un-crystallized, known or un- known, secured or unsecured, disputed or undisputed, present or future, whether or not set out in the IM will cease to exist. The Sub-clause (iii) of Para 3(b) at internal Pg. 20 of the Resolution Plan reads as follows:

"Other than the Admitted Workmen and Employees Dues and Potential Workmen Dues, any and all claims or

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demands made by, or liabilities or obligations owed or payable to (including any demand for any losses or damages, or interest, back wages, compensation, penal interest, liquidated damages already accrued/accruing or in connection with any claims) any present or past direct or indirect, permanent or temporary employee and /or workmen of the company whether admitted or not, due or contingent, asserted or unasserted, crystalized or un- crystallized, known or un-known, secured or unsecured, disputed or undisputed. present or future, whether or not set out in the IM, the balance sheets of the Company or the list of creditors, in relation to any period prior to the Plan Effective Date or arising on account of the acquisition of control by the Applicant over the Company pursuant to this Resolution Plan, will be written off in full and shall be deemed to be permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Company or the Applicant shall at no point of time be directly or indirectly, held responsible or liable in relation there to."

7. That it is also profitable to contend that the binding nature of the Resolution Plan is to such an extent that the IBC under Section 74(3) also provides that if the Corporate Debtor, any of its officers, creditors or any person upon whom the Resolution Plan is binding, contravenes the Resolution Plan then such person shall be punishable with imprisonment of not less than one year, but may extend to five year or with fine which shall not be less than one lakh rupees, but may extend to one crore rupees, or with both. The Resolution Plan is binding upon the OP No. 2 and the OP No. 2 has clearly proceeded in violating Section 74(3) of IBC which is a punishable offence. The relevant extract of the section is reproduced below:

"74. Punishment for contravention moratorium or the resolution plan (1)... ... ...

(2)... ... ...

(3) Where the corporate debtor, any of its officers or creditors or any person on whom the approved resolution plan is binding under section 31 knowingly and wilfully contravenes any of the terms of such resolution plan or abets such contravention, such corporate debtor, officer, creditor or person shall be punishable with imprisonment of not less than one year, but may extend to five years, or with fine which shall not be less than one lakh rupees, but may extend to one crore rupees, or with both.

8. That further it is pertinent to note that IBC has been given overriding powers under Section 238 which

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clearly specifies that the IBC will prevail over any other law. The section states as below:

"238. Provisions of this Code to override other laws - The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law"

9. That the claim of the OP No. 2 is not maintainable as it relates prior to CIRP period and hence extinguished after the approval of the Resolution Plan. This Hon'ble Court in the Petitioner's own matter where the Department of Mines, State of Odisha had raised claims of Rs. 215.92 Crores, has quashed the said demand on the ground that the claim is extinguished as it relates to a period prior to the approval of the Resolution Plan. The said judgment.is reported as Ferro Alloys Corporation Ltd. vs. State of Odisha, AIR 2022 Orissa 17.

10. The binding nature of the approved Resolution Plan and the overriding powers of the Code have been stamped with approval by several judgments which are binding. on the Opposite Parties. The Hon'ble Supreme Court in the landmark judgment of Committee of Creditors of Essar Steel vs. Satish Kumar Gupta (2020) 8 SCC 531 has held as follows:

"105. Section 31(1) of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution Applicant starts running the business of the corporate debtor on a fresh slate as it were.

..... ....

107.......... A successful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove."

11. Further, the Hon'ble Supreme Court, in the case of Ghanashyam Mishra and Sons Pvt. Ltd. vs. Edelweiss Asset Reconstruction Company Ltd, (2021) SCC ONLINE SC 313, has clearly held that claims which are not part of

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the resolution plan shall stand extinguished upon approval of resolution plan and the same has been quoted below for the kind perusal of this Hon9ble Court:

<95. In the result, we answer the questions framed by us as under:

(i) That once a resolution plan is duly approved by the Adjudication Authority under subsection (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan;

(ii) 2019 amendment to Section 31 of the I & B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect;

(iii) Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued.=

13. It is in the above grounds and taking cue from the judgment

in Ghanashyam Mishra (supra) and a further direction of this

Court in O.J.C. No.7286 of 1999, Mr. Mishra, learned counsel for

the Petitioner claimed declaring the direction in I.D. Misc. Case

No.63 of 2021 as bad in law and setting aside the same.

14. Learned State Counsel however attempted to support the

impugned order while also submits that the decisions taken support

has no application to the case at hand. Learned State Counsel also

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objects the entertainability of the Writ Petition that the Petitioner

has brought in wrong interpretation of effect of Resolution Plan

approval and wrong reading of the judgment in Ghanashyam

Mishra (supra) and submits for dismissal of the Writ Petition.

15. This Court here finds undisputed facts here remain to be

Petitioner herein became insolvent on 06.07.2017. In between

2017-2020 Resolution Professional (R.P) was in-charge as per IBC

appointed by NCLT Calcutta Bench and the R.P. invited claims

from 2017 till 2020. The C.P.(I.B) No.251/KB/2017 got concluded

in order of NCLT dated 22.07.2017. There is drawing of

Resolution Plan and the Resolution Plan got approved by NCLT

Cuttack on 30.01.2020. Copy of Resolution plan is available here

as Annexure-3 and copy of approval order by NCLT appears at

Annexure-4. In the meantime promotors appealed before NCLAT

also failed. The matter went to the level of Hon9ble apex Court and

Hon9ble apex Court not only upheld the decision of NCLT as well

as NCLAT but it also stamped the Resolution Plan by its order

dated 27.09.2021 vide Annexure-5. Resolution Plan dated

13.11.2019 at Annexure-3 vide clause-10 under heading <Term of

the Resolution Plan and Implementation Schedule at sub-para (a)

and (b) reads as follows:-

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<a) The term of the Resolution Plan shall commence on the date of submission of the Resolution Plan to the Resolution Professional and shall remain valid till the Plan is fully implemented. Notwithstanding anything contained in this Resolution Plan (except to the extent set out in Section 7(b) of this Resolution Plan). no part of this Resolution Plan shall become effective or enforceable until either (i) the Resolution Plan is approved by the NCLT in the manner previously proposes by the Applicant and approved by the CoC; or

(ii) if approved by the NCLT with any variance which does not result in any change in the Total Consideration proposed under the plan or does not impact the overail Financial Proposal of the Applicant, in the manner approved by the NCLT; (iii) if approved by the NCLT with any variance other than (iv) above, then in the form and substance acceptable to the COC and the Applicant Upon approval of the Resolution Plan by the NCLT, this Resolution Plan shall ispo facto form part of the NCLT order approving the Resolution Plan.

b) The implementation schedule for the Resolution Plan is set out in Section 7(b) of this Plan.=

Similarly Resolution Plan at clause-3(b) under heading

proposed for workman-Employees sub-clause (iii), at page-61 of

the brief reads as follows:-

<(iii) Other than the Admitted Workman and Employees Dues and Potential Workmen Dues, any and all claims or demands made by or liabilities or obligations owed or payable to, (including any demand for any losses or damages, or interest, back wages, compensation, penal interest, liquidated damages already accrued/accruing or in connection with any claims) any present or past, direct or indirect, permanent or temporary employee and/or workman of the Company whether admitted or not, due or contingent, asserted or unasserted, crystalized or uncrystallised known or unknown, secured or unsecured, disputed or undisputed, present or future, whether or not set out in the IM, the balance sheets of the Company or the profit and loss account statements of the Company or the list of creditors, in relation to any period prior to the Plan Effective Dare or arising on account of the acquisition of control by Applicant over the Company pursuant to this Resolution Plan, will be written off in full and shall be deemed to be

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permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Company or Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto.=

16. This condition appears to make it clear that the resolution

placed covers all other dues except the admitted workman and

employees9 dues. It be made here that here the admitted dues of the

workman involved case by way of an industrial adjudication in I.D.

Case No.60 of 1990 decided on 17.02.1999 and decided much prior

to Company-Petitioner herein became insolvent on 06.07.2017.

The benefit to the workman came by way of award dated

17.02.1999 in disposal of I.D. Case No.60 of 1990. It is thus the

outcome in I.D. Misc. Case No.63 of 2021 remain immaterial as it

is only in giving into effect the outcome in I.D. Case No.60 of 1990

that too being confirmed in O.J.C. No.7286 of 1999. Pendency of

the Review Petition without even admitted has no consequence for

there is loss of decade in the meantime. The Petitioner claims here

undoubtedly remain outside, the Resolution Plan and Petitioner9s

attempt if entertained will frustrate the effect of award being

confirmed by this Court and the Management here is expecting

undue advantage of the Resolution Plan and an outcome of its

approval by Supreme Court vide Civil Appeal No.5991-92 of 2021

and 5129 of 2021 decided on 27.07.2021 particularly when for

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there is undertaking of industrial adjudication since 1990, there was

no scope for inclusion of such claim in undertaking of exercise in

calling for the claims in 2017.

17. This Court here considering the effect of the judgment in

Ghanashyam Mishra and Sons Private Limited Vrs. Edelweiss

Asset Reconstruction Company Limited , 2021 SCC Online SC

313 finds, the short question decided to be determined there as

taken down in paragraph-2 reads as follows:-

<2. The short but important questions, that arise for consideration in this batch of matters, are as under:-

(i) As to whether any creditor including the Central Government, State Government or any local authority is bound by the Resolution Plan once it is approved by an adjudicating authority under sub-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 8I& B Code9)?

(ii) As to whether the amendment to Section 31 by Section 7 of Act 26 of 2019 is clarificatory/ declaratory or substantive in nature?

(iii) As to whether after approval of resolution plan by the Adjudicating Authority a creditor including the Central Government, State Government or any local authority is entitled to initiate any proceedings for recovery of any of the dues from the Corporate Debtor, which are not a part of the Resolution Plan approved by the adjudicating authority?=

18. Attention in taking help of the above decision was drawn

through question (iii) particularly plain reading of the aforesaid

question, this Court here observes, the question (iii) does not fit to

the issue involved herein as there should not be any doubt that the

dispute here involved a determination on claim prior to 1990 and

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the final outcome in the dispute even involving benefit through as a

corollary but all as an outcome of the result in I.D. Case No.60 of

1990 being confirmed by way of disposal in O.J.C. No.7286 of

1999 but disposed of on 11.12.2019 and claims here placed to be

confident in terms of Resolution Plan involved herein. It be stated

here that even though liquidation process involving the Petitioner

commenced in 2017 till disposal of the Writ Petition in 2019, the

Management-Petitioner consciously let this issue from being

considered in the previous round of litigation.

19. Undisputedly in the case at hand not only not a part of the

Resolution plan nor even there is any claim put here after approval

of the Resolution. The claim here arises by way of Industrial

Adjudication in an award, vide I.D.Case No. 60 of 1990 passed on

17.02.1999. Such Award even got confirmed by this Court in

disposal of OJC No. 7286 of 1999. It be stated here that here the

Resolution plan was submitted for the first time on 30.01.2020 and

was approved by NCLT also on 30.01.2020 and ultimately

confirmed by Hon9ble apex Court, vide judgment reported in

(2022) 10 SCC 493 being decided on 27.09.2021. For the benefit

here through award passed on 17.02.1999 in a litigation initiated in

1990 and litigation going on, there was no deliberate inclusion of

this aspect in the Resolution plan.

// 19 //

20. This Court here further also observes, the legal position on

above is well settled that an approved Resolution Plan can deal

with related party claim and extinguish the same, which shall

ensure that the successful Resolution applicant can take over the

Corporate Debtor on hassle-free and clean state. This Court here

also finds, once the Corporate Debtor was with clear knowledge of

such an outstanding coming on its head, nothing prevents to the

Corporate Debtor also putting such claim in the Resolution Plan.

On the other hand attempt of the Petitioner here appears to

circumvent the yield through the Industrial Adjudication settled

through disposal of the Writ Petition in the guise of Resolution

plan and trying to avoid its responsibility.

21. On the Petitioner here attempting to take advantage of

Ghanashyam Mishra (supra) in the first step, this Court finds, there

is, however, involve the issue involved therein and on the other

hand even deciding the issue No. (iii) taken note herein the Hon9ble

apex Court though taken its view in Paragraph-95 therein also does

not come in the aid of the Petitioner.

22. It be stated here that the Petitioner even though has some

other grounds but the impugned order was challenged only on the

premises that the proceeding therein in I.D. Misc. No. 63 of 2021

does not stand to test for its Resolution Plan confirmed involving

// 20 //

the company and did not include such claim further also hit by

judgment of Hon9ble apex Court in Ghanashyam Mishra (supra).

23. Based on the above discussion we are of the considered

opinion that there are no reason for interference in the order dated

16.03.2023 passed by the Labour Court, Bhubaneswar in I.D. Misc.

Case No. 63 of 2021 involving a proceeding under Section 33-C(2)

of the I.D. Act and the Writ Petition thus declined to be entertained

for having no merit. For there is inordinate delay in providing the

legitimate dues to the Workman involved herein and he is pursuing

his litigation remedy nearly three and half decade and the

Workman is sufficiently aged in the meanwhile, the benefit by

virtue of the impugned order unless paid within thirty days

hereafter, the Petitioner shall be entitled to the same along with

interest @ 8% per annum all through.

24. The Writ Petition stands dismissed, however, with the above

direction. No Cost.

                          (M.S.Sahoo)                                             (Biswanath Rath)
                            Judge                                                     Judge



Signature Not Verified
Digitally Signed      Orissa High Court, Cuttack.
Signed by: SWARNAPRAVA        th
                      The 29DASH August, 2023//
Reason: Authentication
Location: High Court ofSwarna

Orissa Prava Dash///Utkalika Nayak, Junior Stenographer Date: 05-Sep-2023 17:52:23