R.N. Pyne, J. - (1.) THIS appeal is directed against the judgment and order of P.K. Banerjee, J., dated December 12, 1972 dismissing the appellant's application made under Art.226 of the Constitution challenging the order of reference dated 8th December 1967 and the Order No. 52 of the respondent No. 1 Seventh Industrial Tribunal dated 2nd April, 1971. Relevant facts of this case may briefly be stated.
(2.) RIVERS Steam Navigation Company Limited (hereinafter referred to as 'the Company') which was incorporated in England, operated as inland carrier of goods between West Bengal and Assam over the rivers flowing through East Bengal. It also owned a Rajabagan Dock-yard, a large enterprise in Calcutta for repairing vessels etc. The company had to close down its business during Indo-Pakistan conflict in 1966 as large number of vessels of the company had been seized by the Pakistan Government. After termination of Indo-Pakistan hostility the company started operation in Assam and in the port of Calcutta; but it could not do well in the business and had to incur a large recurring financial help from the Government of India. The company had various creditors whose dues amounted to considerable amount. The Government of India considered that the company should not just be dosed down but it should be kept alive for strategic reasons as well as for business and commercial purposes. With that end in view and having regard to the importance of the business of the company, the Government of India since 1985 acquired by purchasing various shares of the company. According to the Government of India, it was considered financially practicable to continue the limited but nationally very important and useful service if a new. company was set up by the Government of India and for that purpose it was decided to set up a new rupee company. On or about 16th February, 1967 a new company, namely, Central Inland Water Transport Corporation Limited (hereinafter referred to as 'the Corporation') the appellant herein was incorporated by the Government of India. Thereafter, the company made an application to the Hon'ble High Court at Calcutta for sanction of a scheme under Ss.391 and 394 of the Companies Act, 1956. The said scheme was duly sanctioned with some modification by this Court by its order dated 3rd May, 1967. The relevant provisions of this scheme as presented before the Court are set out hereunder: "1. A new Government of India company will be incorporated within about six weeks with a Memorandum and Articles of Association amongst others with power to acquire the property and assets of the existing company with sufficient capital fixed by the Government of India (hereinafter called the 'New Company'). 2. The RIVERS Steam Navigation Company Ltd. (hereinafter called the Existing Company') will transfer to the new company all its properties and assets, uncalled capital amounting to 117,585 or Rs.24,68,285 will be paid in rupees by the Government of India to the existing company." 3.The new company will undertake all the liabilities of the existing company in favour of the State Bank of India and the Government of India. The State Bank of India and the Government of India will accept the new company as its debtor in place of the existing company and will release the existing company from all its liabilities in respect of its said debts. 4. The amount due to The Chartered Bank for principal interest and costs which forms subject matter of a Suit No. 1730 of 1966 (The Chartered Bank v. RIVERS Steam Navigation Co. Ltd.) or otherwise is reduced to Rs. 60 lakhs and the same shall be payable by the new company within 10 weeks from the date of the final approval of the scheme by this Hon'ble Court or 30th June, 1967 whichever is later and this will be final settlement of all dues to the Chartered Bank. 5. No amount shall be payable to any creditor of the existing company who has directly or indirectly agreed with any person to accept the shares of the existing company in payment or satisfaction of his dues in whole or in part. The existing company, if so required, shall allot the shares agreed to be taken as aforesaid to the creditor concerned. 6. All the other creditors of the existing company, which comprise the unsecured creditors other than the State Bank of India, the Chartered Bank, the Government of India and the creditors referred to in paragraph 5 hereof, shall be paid in the manner following, viz: (a) All the creditors will be paid Rs.5,000 or if the amount due to them is less than Rs.5,000 then the full amount due upon the sanction of the scheme by this Hon'ble Court within ten weeks from the date of such sanction or the 30th June, 1967 whichever is later. (b) 66.23 per cent of the balance of their dues appearing in the books of account of the existing company in the following instalments, viz., 33.1/3 per cent before 30th June, 1967 and the balance of 33.1/3 per cent on or before 30th June, 1968 in full and final settlement of their entire dues. 7. The new company will employ such of the workers and staff of the existing company as may be necessary and suitable for its business on such terms and conditions as it, in its discretion, thinks fit. 8. Upon the approval of the scheme by the Court, the existing company shall be closed and upon payment to all the creditors the existing company shall be dissolved without winding up pursuant to an order to be obtained from this Hon'ble Court. 9. The Court shall have the right to add, alter, vary or modify the above scheme and Shri B.B. Ghosh, the Chairman of the existing company is hereby authorised to accept such additions, alterations, variations and modifications as this Hon'ble Court may be pleased to make on the company and all the creditors and members of company shall be bound by such additions, alterations, variations and modifications as this Hon'ble Court may think fit to make." Clauses 6 and 7 of the scheme as set out herein above were modified by the Court by its order dated 3rd May, 1967. The modified cls. 6 and 7 of the scheme are as follows: "That the following clauses be incorporated in cl.6 of the said scheme of compromise or arrangement: (i) That the Government of India agrees to pay the amount due to the secured and unsecured creditors as indicated in the scheme proposed. and (ii) That the Government of India shall provide necessary fund to the said transferee company to pay the amount provided in the scheme for settlement. That cl.7 of the said scheme be modified as follows: (a) That new company shall take as many of the existing staff of labour as possible and as can be reasonably taken over by the said transferee company subject to any valid objection to any individual employee or employees. (b) That as to exactly how many can be employed it is left to the said transferee company's bona fide discretion. (c) That those employees who cannot be taken over shall be paid by the transferor company all moneys due to them under the law and all legitimate and legal compensations payable to them either under Industrial Disputes Act or otherwise legally admissible and that such moneys shall be provided by the Government of India to the existing transferor company who will pay these dues." (The above modification or amendment will appear from pages 25-26 of the Paper Book). One Bejon Kumar Roychowdhury was appointed in the Head Office of the company in February 1948. Towards the end of 1963 Bejon was working as a clerk at Jagannath Ghat Office of the company. It appears that in 1963 Bejon went on leave on account of his indifferent health and while he was on leave his service was terminated by the company by a letter dated 7th September 1963 with immediate effect. It is alleged that no opportunity was given to Bejon Roychowdhury to make a representation against the termination. On receipt of the said letter it is stated that Bejon Roychowdhury wrote to the Superintendent, Jagannath Ghat Office and prayed that he would be allowed to join on 13th September 1963 and as he was not allowed to join his post, an industrial dispute in respect of dismissal of Bejon Roychowdhury was raised by Inland Steam Navigation Workers' Union. There were reconciliation proceedings and the same having failed the matter was referred to the Tribunal for adjudication by an order dated 8th December 1967. The said order dated 8th December 1967 is set out hereunder: "Whereas an industrial dispute exists between Messrs. The Central Inland Water Transport Co. Ltd., 4, Fairlie Place, Calcutta-1 and their workmen represented by the Inland Steam Navigation Workers' Union, 16/17, College Street, Calcutta-12 relating to the undermentioned issue being a matter specified in the Second Schedule to the Industrial Disputes act, 1947 (XIV of 1947); And whereas it is expedient that the said dispute should be referred to an Industrial Tribunal constituted under S.7A of the said Act; Now, therefore, in exercise of the powers conferred by S.10 of the Industrial Disputes Act, 1947 (XIV of 1947), the Governor is pleased hereby to refer the said dispute to the Seventh Industrial Tribunal constituted under notification No. 3115-I. R.I.R./3 A-6/59, dated the 21st June 1960, for adjudication. The said Seventh Industrial Tribunal shall meet at such places and on such date as it may direct. 1. Whether the termination of service of Shri Bejon Kr. Roy Chowdhury is justified? What relief, if any, is he entitled?"
(3.) HERE, it may be mentioned, that another industrial dispute between the said Union and the company with regard to termination of service of Bejon Roychowdhury was referred to the Industrial Tribunal by the order dated 14th June 1967 but the same ultimately resulted in a no-dispute award. Written statements were duly filed by the parties before the Tribunal. In its written statement the Corporation raised several objections as preliminary objections before the Tribunal. It was contended that the Tribunal had no jurisdiction to adjudicate upon the issue because Bejon Roychowdhury was never employed by the Corporation and was not an employee of the Corporation. There was no and never could be an industrial dispute between Bejon Roychowdhury and the Corporation. It was further contended that the Corporation was not a 'successor' of the company. Therefore, the point that was urged before the Tribunal was whether the Corporation was a successor company and as such was bound to take all the employees of the company. The contention of the Union before the Tribunal was that Bejon's service was terminated by notice and if the termination was bad then he continued to be an employee of Corporation and as such the said industrial dispute could be proceeded with. It appears that the preliminary issue as to whether the Corporation was a 'successor' of the company or not was not decided as a preliminary issue and by its Order No. 52 dated 2nd April, 1971 the Tribunal directed that the said point should be decided by the Tribunal on merits after the parties had adduced evidence. The relevant portion of the Tribunal's order are set out hereunder: "It thus appears that the question whether Central Inland Water Transport Corporation Limited is successor of River Steam Navigation Co. Ltd. has to be decided in the instant reference on merits after the parties have adduced evidence regarding the same. I do not think that it should be decided at this stage when the Corporation has not adduced any evidence on this point and has not also argued the point. In my opinion, this question is to be decided when the case is heard on merits. I do not think it should be decided while considering the question of jurisdiction at this stage. Before the said question is decided it cannot also be said that Shri Roy Chowdhury will have no right against the Corporation. It would thus not be possible to hold at the present moment that the reference is invalid. The contentions of the Union and the Corporation regarding this point will be considered in due course when this question is heard on merits." ;