# Appeal allowed. GREAT INDIAN MOTOR WORKS LTD., AND ANOTHER v. THEIR EMPLOYEES AND OTHERS

- **Citation:** [1960] 1 S.C.R. 13
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/appeal-allowed-great-indian-motor-works-ltd-and-another-v-their-employees-and-1730
- **Pages:** 12

## Headnote

Industrial Dispute-Award against company in liquidationAppeal by managing director and auction-pu.rchaser not aggrieved by
the award-Summary dismissal by Appellate Tribunal-ValidityRight of appeal-Industrial Disputes (Appellate Tribunal) Act, z950
(48 of z950), s. z20-Companies Act z956 (I of z956), s. 457.
The discharged employees of the Company in liquidation
raised an industrial dispute wherein the auction-purchaser of the
Company was also impleaded as a party. The Tribunal, inter
alia, held that no relationship of employer and employee existed
between the auction-purchaser and the t:ild staff who had been
discharged prior to the purchase of the business, and the reference
so far as the auction-purchaser was concerned was incompetent.
The Tribunal directed the liquidators to pay compensation to the
discharged employees.
The liquidators were refused sanction to appeal from the
said award by the High Court whereupon the auction-purchaser
who was also the managing director of the Company, prior to
its liquidation, preferred an appeal in the name of the Company
represented by himself as the managing director and also in his
capacity as the auction-purchaser of the Company. The Appellate Tribunal dismissed the appeal in limine as incompetent in
view of the provisions of s. 457 of the Companies Act 1956, on
the ground that the appeal was not maintainable as it was not
authorised by the High Court.
JI eld, that where a party to the Reference in an industrial
dispute was exonerated from its terms, and no Award was made
against him, he could not be sairl to be an aggrievc-d party,
thereby attracting the provisions of s. 12 of the Industrial
Disputes (Appellate Tribunal) Act HJSO, and any appeal by him
from the said Award will be incompetent.
Its Workmen and
Others
Wanchooj.
I959
May6.
14
SUPREME COURT REPORTS [1960(1)]
r959
No person other than the Official Liquidator, who is placed
in charge of the affairs of the Company in the process of winding
Great Indian
up, is authorised with the sanction of the Court to institute any
Motor Works Ltd., suit, prefer an appeal or other legal proceedings in the name and
and Another
on behalf of the Company.
v.
Held, further, that there is no inconsistency betweens. 457
Their Employees of the Companies Act r956 and s. r2 of the Industrial Disputes
and Others
(Appellate Tribunal) Act r950. But in construing the provisions
of s. r2 of the Industrial Disputes (Appellate Tribunal) Act r950,
if there was anything in the Companies Act, r956, with particular
reference to s. 457 which was inconsistent with the provisions of
Industrial Disputes (Appellate Tribunal) Act r950, the latter Act
shall prevail.
Section 457 of the Companies Act r956, concerns a very
special case, it only lays down a condition precedent to the filing
of a case if it has to be by the liquidator of a company in the
process of winding up.
Section 12 of the Industrial Disputes (Appellate Tribunal)
Act r950 is the usual statutory provision which permits an appeal
to be presented to the Appellate Tribunal, which otherwise would
not lie, by any party who is aggrieved. by an award; it docs not
either in express terms or by necessary iinplication override,
abrogate or modify the provisions of s. 457 of the Com~·anies Act
1956, nor does it do away with the necessity for the requisite
sanction of the court which is a condition precedent so far as the
liquidator is concerned to institute any suit or proceedings in the
name or on behalf of the company in liquidation.
In the instant case the appeal purported to be filed on behalf
of the Company in liquidation through its managing director was
wholly incompetent ; an.d the second appellant, the auctionpurchascr, could not be said to the aggrieved party enabling him
to invoke s. 12 of the Act.
CIVIL APPELLATE Ju&rsmc·rrnN: Civil Appeal No.
447 of 1957.
Appeal by special leave from the judgment and
order dated the 1st August 1956 of the Labour Appellate Tribunal of India, Culcutta in Appeal No. C

## Text

S.C.R.
SUPREME COURT REPORTS
13
beyond what has already been granted by the comr959
pany. In the particular circumstances of this case, The Tata Oil Mills
we order the parties to bear their own costs.
Co., Ltd.
v.
Appeal allowed.
GREAT INDIAN MOTOR WORKS LTD.,
AND ANOTHER
v.
THEIR EMPLOYEES AND OTHERS
(B. P. SINHA, P. B. GAJENDRAGADKAR
and K. N. WANCHOO, JJ.)
Industrial Dispute-Award against company in liquidationAppeal by managing director and auction-pu.rchaser not aggrieved by
the award-Summary dismissal by Appellate Tribunal-ValidityRight of appeal-Industrial Disputes (Appellate Tribunal) Act, z950
(48 of z950), s. z20-Companies Act z956 (I of z956), s. 457.
The discharged employees of the Company in liquidation
raised an industrial dispute wherein the auction-purchaser of the
Company was also impleaded as a party. The Tribunal, inter
alia, held that no relationship of employer and employee existed
between the auction-purchaser and the t:ild staff who had been
discharged prior to the purchase of the business, and the reference
so far as the auction-purchaser was concerned was incompetent.
The Tribunal directed the liquidators to pay compensation to the
discharged employees.
The liquidators were refused sanction to appeal from the
said award by the High Court whereupon the auction-purchaser
who was also the managing director of the Company, prior to
its liquidation, preferred an appeal in the name of the Company
represented by himself as the managing director and also in his
capacity as the auction-purchaser of the Company. The Appellate Tribunal dismissed the appeal in limine as incompetent in
view of the provisions of s. 457 of the Companies Act 1956, on
the ground that the appeal was not maintainable as it was not
authorised by the High Court.
JI eld, that where a party to the Reference in an industrial
dispute was exonerated from its terms, and no Award was made
against him, he could not be sairl to be an aggrievc-d party,
thereby attracting the provisions of s. 12 of the Industrial
Disputes (Appellate Tribunal) Act HJSO, and any appeal by him
from the said Award will be incompetent.
Its Workmen and
Others
Wanchooj.
I959
May6.
14
SUPREME COURT REPORTS [1960(1)]
r959
No person other than the Official Liquidator, who is placed
in charge of the affairs of the Company in the process of winding
Great Indian
up, is authorised with the sanction of the Court to institute any
Motor Works Ltd., suit, prefer an appeal or other legal proceedings in the name and
and Another
on behalf of the Company.
v.
Held, further, that there is no inconsistency betweens. 457
Their Employees of the Companies Act r956 and s. r2 of the Industrial Disputes
and Others
(Appellate Tribunal) Act r950. But in construing the provisions
of s. r2 of the Industrial Disputes (Appellate Tribunal) Act r950,
if there was anything in the Companies Act, r956, with particular
reference to s. 457 which was inconsistent with the provisions of
Industrial Disputes (Appellate Tribunal) Act r950, the latter Act
shall prevail.
Section 457 of the Companies Act r956, concerns a very
special case, it only lays down a condition precedent to the filing
of a case if it has to be by the liquidator of a company in the
process of winding up.
Section 12 of the Industrial Disputes (Appellate Tribunal)
Act r950 is the usual statutory provision which permits an appeal
to be presented to the Appellate Tribunal, which otherwise would
not lie, by any party who is aggrieved. by an award; it docs not
either in express terms or by necessary iinplication override,
abrogate or modify the provisions of s. 457 of the Com~·anies Act
1956, nor does it do away with the necessity for the requisite
sanction of the court which is a condition precedent so far as the
liquidator is concerned to institute any suit or proceedings in the
name or on behalf of the company in liquidation.
In the instant case the appeal purported to be filed on behalf
of the Company in liquidation through its managing director was
wholly incompetent ; an.d the second appellant, the auctionpurchascr, could not be said to the aggrieved party enabling him
to invoke s. 12 of the Act.
CIVIL APPELLATE Ju&rsmc·rrnN: Civil Appeal No.
447 of 1957.
Appeal by special leave from the judgment and
order dated the 1st August 1956 of the Labour Appellate Tribunal of India, Culcutta in Appeal No. Cal.-107
of 1956.
D. N. Mukherjee, for the appellants.
Y. J{ uma.r, for the respondent.
1959. May 6.
The Judgment of the Court was
•
•
•
delivered by
I
Sinha].
SINIIA J.-This appeal by special leave, is directed
against the order of the Labour Appellate Tribunal,
dated August I, 1!)56, dismissing in limine the appeal
...
S.C.R.
SUPl~EME COURT REPOR,TS
15
against the Award of the Third Industrial Tribunal,
r959
dated March 8, 1956. The Great Indian Motor Works
G
nd.
Ltd., now in liquidation (hereinafter referred to as Mot::~:,k;~~d.
'the Company'), represented by one of the Managing
and Another '
Directors, K. D. Nundy, is the first appellant. The
v.
said K. D. N nndy, in his capacity as the credit.or of Their Employees
the Company and/or as the auction-purchaser of the
and Others
Company, is the second appellant. One hundred and
forty two employees of the Company, represented by
the Bus Workers' Union, are collectively the first
respondent.
The second and third respondents,
C. D. N undy and D. L. Dutt, are the Official Liquida.
tors of the Company, appointed by the High Court as
such.
The relevant facts are these: The Company was
incorporated and registered under the Indian Companies Act, 1913, in 1926, as a private limited company
with its registered office at Calcutta. Its business was
mainly that of carrying on public transport on Route
No. 14 in the City of Calcutta, as also of dealers in
and repairers of motor vehicles. It had an authorized
capital of six lacs of rupees divided into 600 shares of
Rs. 1,000 each, out of 'which, shares worth Rs. 4,00,000
only had been subscribed and paid up. The registered
share-holders of the Company, were Kristo Das Nundy,
the second appellant, having 246 shares; Chandy Das
Nundy, respondent No. 2, having 142 shares, and
Kumar Kartick Charan Mullick, holding 12 shares,
each of the face value of Rs. 1,000. On account of
financial difficulties and disputes between its shareholders, an application for compulsory winding up of
the Company was made by the said respondent No. 2,
on the Original Side in the High Court at Calcutta..
On July 23, 1951, an order for winding up the
Company was made, and the Official Receiver was
appointed the Official Liquidator of the Company.
An appeal against the order aforesaid, was dismissed
on December 5, 1951, and the order for winding up the
Company, stood confirmed.
By an order dated
December 11, 1951, the Official Receiver was discharged and the respondents 2 and 3 aforesaid, were
appointed Joint official liquidators in his place, with
Sinha ].
16
SUPREME COURT REPORTS [1960(1)]
'959
power to sell the business of the Company as a going
G -,
1 d'
concern. In April, 1953, the list of the creditors of
rea
n tan
Motor works Ltd .• the Company was settled by the Court, and the second
and Another
appellant aforesaid, was included in the list as a
v.
creditor for the largest amount, namely, Rs. 2,35,818.
Their Employees It may be added that the discharged employees of the
andOtliers
C
· 1 d d'
h 1
ompany were not me u e
111 t e ist of creditors thus
Sinha .r.
sottled by the Court.
After several infructuous
attempts for selling the property by auction, on May 4,
1954, the Court ordered the sale of the Company's
business free from all encumbrances, out-goings and
liabilities, to the highest bidder, subject to confirmation
by the Court.
The second appellant bid for the
purchase of the business with the leave of the Court,
and he was declared the highest bidder and purchaser
of the business for Rs. 1,42,500 at the sale held on
June 12, 1954. The said sale was confirmed by the
Calcutta High Court on July 5, 1954. On July 23,
1954, the Official Liquidators issued a notice terminating the services of all the employees of the Company
with effect from July 24, 1954, except one Assistant
and one clerk, whose services were retained until the
winding up proceedings were completed. On July 24,
the Official Liquidators put the appellant No. 2, the
auction-purchaser, in possession of the busi!'1e~s of the
Company, which is now being carried on by the second
appellant as the sole proprietor.
, As a result of the termination of the services of the
one hundred and forty two employees of the Company,
as aforesaid, an industrial dispute was raised at the
instance of the said employePs whose list is attached
to the order of Reference, dated August 26, 1954,
which is in these terms:-
"Whereas an Industrial dispute exists between (1)
Messrs. Great Inciian l\Iotor Works Ltd., 33, Rowland
Road, Calcutta,
represented
by their Managing
Directors Sri C. D. Nundy and Sri K. D. Nundy, (2)
Official Liquidators of the Company, Sri D. L. Dutta
and Sri C. D. Nundy, 33, Rowland Road, Calcutta
and (3) Sri K. D. Nundy, Auction Purchaser of the
Company, 33, Rowland Road, Calcutta, and their 142,
employees, given in the enclosed list, represented by
•
•
•
S.C.R.
SUPREME COURT REPORTS
17
the Bus Workers' Union, 249, Bowbazar Street,
r959
Calcutta, regarding t,he matters specified in the
G
.
h d 1
'
·
reat Indian
SC e U e;
Motor Works Lid.,
And whereas it is expedient that the said dispute
and Another
should he referred to an Industrial Tribunal constitutv.
ed under section 7 of the Industrial Disputes Act, Their Employees
1947(XIVofl947);
.
andOthers
Now, therefore, in exercise of the powers conferred
s;,.1iaf.
by section 10 of the said Act, the Governor is pleased
hereby to refer the said dispute to the Third Industrial
Tribunal constituted under Notification No. 592
Dis./D/12L-5/12 dated the 23rd :February, 1953 for
adjudication.
The said Third Industrial Tribunal shall meet at
such places and on such dates as it may direct.
SCHEDULE
1.
Whether the notice dated 23rd July, 1954, of
termination of services of 142 employees with effect
from 24-7-54 issued by the Joint Official Liquidators,
was justified ?
2.
Whether the refusal of the auction-purchaser to
continue the employment of the 142 employees was
justified?
3.
What reliefs are the employees entitled to ?
By order of the Governor."
The employees of the Company had moved the High
Court for directions to the Liguidators for the
payment of their dues from the Company. The Court,
by its order dated September 8, 1954, directed the
Liquidators to pay within a week the arrears of salary
of all the workmen, and also within a week from
receiving sale proceeds of the auction-sale aforesaid, to
pay the workers, in lieu of notice, one week's wages to
weekly paid workmen, two weeks' wages to fortnightly
paid workmen, and one month's wages to monthly paid
workmen. The Directors were to hold the balance of
the sale proceeds till further orders of the Court.
It will be noticed from the order of reference, quoted
above, that besides the Official Liquidators, the second
appellant was also impleaded as a party to the Reference, in his capacity as the auction-purchaser of the
Company. In his written statement before the Third
3
18
SUPREME COURT REPORTS
(1960(1)]
r959
Industrial Tribunal of West Bengal, which was in
Great Indian
seizin of the case, the auction-purchaser, now the
Jiotor Wmk« Ud., second appellant, aft.er reciting the facts and circumond Anoth"
Stances leading up to his auction-purchase, as afore.
v.
said, contended that as an auction-purchaser, he was
Thefr Emptnyccs not in any event liable for any compensation or does,
and Others
1 ·
d b
h
]
h
b
as c anne
y t e wor rn1en; t,hat e was not ound to
Si11haj.
reinstate the old employees of the Company; that
having purchased the business free from any encumbrances, he was not Ii a hie for the dues of the workmen,
as claimed ; that he " had unnecessarily been made a
party and dragged here before the Tribunal." He
added that he admitted that ho was one of the Managing Directors of the Company before its liquidation,
but with the order for liquidation, he ceased to function as such.
After hearing the parties, the Tribunal made its
Award dated l\Iarch 8, 1955. The Tribunal awarded,
inter alia, compensation under section 25(F)(b) of the
Industrial Disputes Act, 1947, and directed the Company to pay compensation, within two months from
the date the award became enforceable, to such of the
workmen as had been found entitled to the same. It
may be noted here that the proceedings before the
Industrial Tribunal had commenced without the
necessary sanction of the High Court in the liquidation proceedings, but during the pendency of the
proceedings, the High Court, by its order dated December 20, 1955, granted leave to the workmen to proceed
with and continue the proceedings against the Official
Liquidators of the Company. The Industrial Tribunal,
therefore. further direetcd that so far as the Liquidators were concPrnt>d, t,he compensation awarded to the
workmen '' shall be recoverable only out of the assets
in their hands according to law ;'. So far as the
auction-purchaser was concerned, the award proceeded to make further directions in these terms :
"The auction-purchaser, it has
already been
noted, purchased the different sections of the business
with the name " The Great Indian Motor Works "
free from encumbrances and all outgoings and liabilities (Vide Exts. D and E), and the said purchase was
S.C.R.
SUPREME COURT REPORTS
19
confirmed on 5th July, 1954.
After the sale was
z959
confirmed and before possession was taken by the
t'
h
th L'
'd t
t
.
t d th
Great Indian
auc 10n-purc aser
11
,
e
1
1qm a ors ermd1na e
e Motor Works Ltd.,
employment of a the emp oyees {save an except the
and Another
Accountant and one Clerk) by a notice dated 23rd
v.
July, 1954, with effect from 24th July, 1954. After Their Employees
such termination of employment, the auction purchaser
and Others
obtained possession on 24th July,11954. At that time
Sinha].
no relationship of employer and employees subsisted.
In the circumstances the dispute with the auctionpurchaser cannot be considered to be ' industrial dispute' as no relationship of employer and employee
existed between the auction purchaser and the old
staff who had been discharged earlier. Hence I agree
with the learned Advocate of the auction-purchaser
that the rMerence so far as the auction-purchaser is
concerned is incompetent. Apart from that, when the
auction-purchaser purchased the business free from
encumbrances and all outgoings and liabilities and
when there is nothing to show that the auction-purchaser undertook at any time to maintain the old staff
in his service, it cannot be said that his refusal to
continue the employment of 142 employees was unjustified. Only when one purchases with all assets and
liabilities as a going concern, he is bound to continue
the old employees in service and not otherwise.
I award accordingly."
Against the said Award which, in terms, was made
only against the Liquidators and not against the
auction-purchaser aforesaid, only one of the two Liquidators, namely, Debendra Lall Dutt, made an application to the High Court for necessary directions regarding preferring an appeal. The other Liquidator, Chandy
Das :Nundy, opposed the said application for leave to
appeal. The High Court, thereupon, made an order
on April 30, 1956, refusing leave to the Liquidators to
prefer an appeal from the said Award, It was in
those circumstances that the appellants, namely,
Messrs. Great Indian Motor Works Ltd., represented
by the Managing Director, K.D. Nundy, as the first
appellant, and K.D .. N undy, in his capacity as creditor
a.nd/or contributory of the said Great Indian Motor
I959
Great Indian
Jl,/otor Works Ltd.,
an.d A nothm·
v.
Their E1nployces
and Otltcrs
Sinha].
20
SUPRE1\1E COUR1' REPORTS
[1960(1))
Works Ltd. (under liquidation) and/or as auctionpurchaser of the Company, as appellant No. 2, filed an
appeal before the Labour Appellate Tribunal of India,
on May 3, 11156, impleading the one hundred and forty
two employees through the Bus Workers' Union, as
the principal respondents, C.D. N undy and D. L. Dutt,
the Official Liquidators of the Company, as pro Jonna
respondents. As a counter-blast, the aforesaid workmen of the Company' filed their appeal on May 17,
1956, impleading the Company represented by their
Managing Directors, C. D. Nundy and K. D- Nundy,
as the first respondent, the Official Liquidators of the
Company, D.L. Dutt and C.D. Nundy, as respondentssecond party, K.D. Nundy, the auction-purchaser, as
respondent-third party and the workmen not represented by the Bus Workers' Union, as rn~pondents
fourth party. It is not necessary to set out the
grounds of appeal in either of the two appeals, in view
of our decision on the preliminary question of the
maintainability of the appeal in this Court, as will
presently appear.
The Labour Appellate Tribunal disposed of the two
appeals by its order dated August 1, 1956. The appellants' appeal was dismissed as incompetent in view
of the provisions of s. 179 of Indian Companies Act,
1913, re-enacted as s. 457 of the Companies Act,
1956. The dismissal of the appeal on the ground of
the appeal not being competent; was based on the
order of the Calcutta High Court, dated April 30, 1956,
aforesaid, refusing leave to the Liquidators to prefer
an appeal. It is noteworthy that the appeal before
the Appellate Tribunal, was not by the Liquidators
but by K.D. N undy as Managing Director of the Company, as also by him in his capacity as the creditor or
contributory or as the auction-purchaser of the Company. This aspect of the case has not been dealt with
by the Tribunal which held that the appeal was not
maintainable as it was not authorised by the High
Court. The employees' appeal also was dismissed as
it was not pressed in view of the fact that the appeal
by the Company stood dismissed t.s unauthorized.
lt was against the aforesaid order of the Appellate
•
•
S.C.R.
SUPREME COURT REPORTS
21
Tribunal, dismissing the appeal in liminc, tlHtt the
I959
appellants aforesaid moved this Couet and obtained
G
11 d.
.
.
d . l
.
l
f"
k
rca
n ian
special leave to appeal, an tie mam gronn< o attac , Motor Works Ltd.,
naturally, was that the .Labour Appellate Tribunal was
and Another
in error in di1m1is:;ing the appeal as unanthorisecl or as
v.
not maintainable.
Thczr .c:mployees
I ·
·c
}
ll d
· th fi
und Otlz11rs
t IS nu1ru1e;;t t· rnt we are C<L c
upon, 111
• e rst
instance, to decide ,\·hother the Labour .Appellate
Tribunal had rightly dismissed the appeal in limine ·ou
the ground that t.110 Liqui<lators had failed to obtain
the necessary sanctioH of th1:1 Calcutta High Court to
prefer an a.ppeal fl'Olll the Awtted of the Industrial
Tribunci.J. If that ur<lcr of Lhe Appellate ~rribunal is
correct, and if we Jiud that the appellants could not
have any locn8 .stawli to prefer a.u appeal of their own
as distinct from that on behalf of the Company, no
other 4uesi,ion would <trise for determination in this
case.
If~ on the other hand, we come to the conclusion
that that order w11s erroneon::;, at least in respect of
the ap:1ellant<.;' arpeal, then the appeal will have to be
remanded to be re-heard L.v the Appellate Tribunal.
It ha.s been urged on hchalf of the a.ppellants that.
in view of the provisions of s. 12, read with s. 3, of the
Industrial Di<iputes
(Appellate~ T1·ibnnal) Act. (48 t1f
1950) (which was repealed by Act 36 of 1956), which
governed t.he making of a.ppe"'ls before the Appellate
Tribunal, the appea,l to that Tribunal was competent,
and should have been heard and determined on merit.s.
The provisions of ss. 3 11.ml 12, which we have to
construe in this case, are in these tcrnis :-
" 3. The provi;;ions of this Act and of the rnlei:i
and ordcn; made thereunder shall have effect notwithstanding anythillg iuconsidt.ent therewith eouta.ined
in '1.ny other law for the time being ia force or in any
instrument having effect by virtue of any such law."
" 12.
An appeal under this Act against any
award or decision of an industrial tribunal may be
presented to the Appellate Tribunal hy-
(i) any party which is aggrieved by the award or
decision ; or
Sinha J.
22
SUPREME COURT REPORTS
[1960(1)]
r959
(ii) the appropriate Government or the Central
.
Government, where it is not the appropriate GovernM Greawt Inkd•aLn d ment, whether or not such Government is a party to
otor
OY S
t ., th d•
t ,,
and Another
e
ISpU e .
. v.
\Ve h>t ve first to determine whether there is anything
Their Employees in the Indian Companies Aet, with particular reference
and Others
to s. 179 of the Indian Companies Act, 1913, (reSinha J.
enacted as s. 457 of the Companies Act, 1956), that is
inconsistent with the provisions of the Industrial
Disputes (Appellate Tribunal) Act, 1950 (which hereinafter will be referred to as "the Act"). If there is
anything in those provisions of the Companies Act,
inconsistent with th" provisious of the Act, the latter
shall prevail. Hence, we have to construe the provisions of s. 12 which specifically deals with appeals.
That section permits an appeal to be presented to the
Appellate Tribunal by r,ny party which is aggrieved by
the a ward (omitting the words not necessary for our
present purpose). It is the usual statutory provision
for an appeal, which otherwise would not lie. It does
not say either in ex press terms or by necessary implication, that those specific provisions of the Companies
Act, are abrogated or modified. It does not do away
with the necessity of the requisite sanction of the Court
so far as a Liquidator is concerned. Under the provisions of the lndiau Companies Act, the affairs of the
company under liquidation, are placed in charge of the
Official Liquidator, and under s. 457, it is only the
Liquidator who is authorized with the sanction of the
Court, to institute any suit or other legal proceedings
in the name and on behalf of the company. Thus,
there is no inconsistency between the aforesaid provisions of the Act and the Companies Act, which only
laid down a condition precedent to the filing of an
appeal, if it has to be, by a Liquidator of a company
in the process of winding up. It concerns a very
special case and has no bearing on the general right of
appeal.
As, in the instant case, the Court refused the
necessary sanction to the Liquidators to prefer the
appeal, no appeal could have been filed on behalf of
the Company. Hence, in so far as the appeal purported
to be on behalf of the Compa11y, through the Managing
•
•
"
-
•
S.C.R.
SUPREME COURT REPORTS
23
Director aforesaid, it was wholly incompetent. But
r959
the appeal was not only by the Company as such, but
G
11 d"
K D N
d
h
d.
.
rea
n ian
also by the said
. .
un y as t e ere itor or contri- Motor Works Ltd.,
butory or auction-purchaser of the Company. So far
and Another
as this part of the appeal is concerned, it is clear that
v.
only a pa.rty to the Reference aggrieved by the Award Their Employees
·
1
1rnd Others
could be a party to the appca. K .. D. Nundy was not a
Party in his c.bpacity as creditor or as contributorv. .
s· h 1
. "' a .
He was impleaded, as already ir-iicated as a party to
the Reference in his capacity as ;,fie auction-purchaser
of the business of the Company. So far as that capacity
is concerned, it is clear from the order of the Tribunal,
that no award was made against him as such.
He
could not, therefore, be said to be a party aggrieved
by the award, having been exonerated from its terms.
The Tribunal put this on three main grounds-(1) that
the auction-purchaser had purchased the business of
the Company free from all encumbrances, out-goings
and liabilities, (2) that tho employment of the workmen had been terminated hy the Liquidators before
possession of the business was delivered to the auctionpurchaser, and (3) that there was no relationship of
employer and employees between the auction-purchaser
and the workmen whose services were so terminated.
The Tribunal, in that view of the matter, declared
the Reference to be incompetent in so far as the
auction-purchaser was concerned.
Thi;;: order, the
Tribunal passed at the instance of the auctionpurchaser himself. Th0 auction-purclu1-ser, therefore,
succeeded in obtaining the order which the Tribunal
passed, holding that the R<:'forence, so far as he was
concerned, was incompetent. In view of these facts,
it must be held that so far as the auction-purchaser is
concerned, he was not aggrieved by the Award made
by the Industrial Tribunal. That being so, the provisions of s. 12 of the Act, are not attracted to the appeal
purported to have been filed by the auction-purchaser.
It is a little difficult to appreciate why the auctionpurchaser, having succeeded in obtaining the order, set
out above, in his favour, changed his mind and preferred an appeal which, in the events that had happened,
was not maintainable.
1959
Great Indian
Motor Works Ltd.,
and A ·not her
v.
Their E1nployees
and Others
Sinha].
1959
Jt,[ay6.
''\.
24
SUPREME COURT REPORTS (1960(1)]
\
In our opinion, therefore, the Labour Appellate
Tribunal was not in error in dismissing the appeal by
-1111
the Company and by the auction-purchaser, as incompetent. It follows, therefore, that we are not concerned with the merits of the appeal. In view of the
fact that we have not expressed any opinion on the
merits of the controversy raised in the abortive appeal,
this dismissal shall be without prejudice to the appellants' rights, if any. The appeal is, accordingly, dismissed, but the parties here are directed to bear their
own costs, in view of the fact that we have not gone
into the merits of the controversy.
Appeal clismi8ser.l.
MESSRS. ISPAHANI LTD. CALCUTTA
v.
ISP AHANI EMPLOYEES' UNION
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. WANCHOO, JJ.)
.
Industrial Dispute-Puja Bonus-Implied agreement-Tes/-
Benefits arising out of service with employer's predecessors-Worlmten
if entitled to.
The workmen were originally employed by M/s. M.M. Ispahani
Ltd., which shortly before the partition of India transferred its
registered office from CO:Icutta to Chittagong. The appellant
company was incorporated on September 15, 1947 and took over
the good-will and trading rights of M/s. M. M. Ispahani Ltd. and
also purchased its stock-in-trade, properties and assets.
Most of
the shares of the appellant were held by M/s. M. M. Ispahani Ltd.
and the business of the appellant was of the same nature carried
on in the same premises with the san1e workmen on the same
remuneration. On the transfer of M/s. M. M. Ispahani Ltd. to
Chittagong the question arose of retrenching those workmen who
were not willing to go to Chittagong and when the appellant
company came into existence it agreed to employ those workmen.
The workmen apparently agreed to the termination of their
services with M/s. M. M. Ispahani Ltd., and after receiving their
provident funds and arrears of salaries they were appointed by
the appellant. M/s. M. M. Ispahani Ltd. used to pay puja bonus
to the workmen at the rate of one month's wages and the appellant
also paid the same from 1948 up to 1952, even in the years in
which the appellant suffered losses. As the appellant did not
pay puja bonus for 1953, a dispute arose and was referred for
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