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2002 DIGILAW 1390 (PAT)

Sukhdeo Rai v. State Of Bihar

2002-12-09

SHIVA KIRTI SINGH

body2002
Judgment 1. Heard the parties. 2. Petitioners of all these six writ petitions which have been heard together at the stage of admission are retired employees of Bihar State Construction Corporation Limited Patna. In one of the writ petitions C.W.J.C. No. 4416 of 2001 the petitioner claims to be wife of an employee of the same corporation who died in harness. The petitioners have waited for dues of retiral benefits as well as certain dues of saJary or for dues of death-cum-retiral benefits for two years or more but the Corporation has expressed its inability to pay even the admitted dues on account of financial hardship. 3. On behalf of petitioners it was submitted that the respondent Corporation admittedly being an instrumentality of the State cannot act arbitrarily and cannot deny the petitioners of their lawful dues on account of paucity of funds. It must sell of its assests or borrow from financial institutions of the State Government and pay the admitted dues within a reasonable time. On the other hand, on behalf of respondent Corporation as well as State reliance has been placed upon a Full Bench judgment of this Court in the case of Manikant Pathak and others V/s. The State of Bihar, reported in 1997 (1) PLJR 664 . The State has relied upon the said judgment to submit that the employees of the Corporation cannot be treated as employees of the State and no direction can be issued to the State for payment of salary to the employees of the Corporation or the retiral benefits to its retired or dead employees. As noticed above the stand of the Corporation appears to be a plea of inability due to financial hardship. 4. In the Full Bench Judgment this Court clearly held that it is not possible for this Court to issue any direction to the State for payment of salary to the employees of such Corporations. It is clear that no direction can be issued even for payment of post retiral or death-cum-retiral benefits. However, the Full Bench further heid that such Corporations cannot come with a plea that they have no fund or resources for paying the dues of the employees. This Court held that in such a situation, apart from issuing a direction to pay the salary to the employees the proper direction would also be for the winding up of the Corporation. 5. This Court held that in such a situation, apart from issuing a direction to pay the salary to the employees the proper direction would also be for the winding up of the Corporation. 5. The implications flowing from the Full Bench Judgment are clear for all the parties. The State Government, in spite of being made aware of the financial difficulties of the Corporations took no steps for winding up of the Corporation since 1996 when the Corporation had made it clear that the salary of its employees was due for 25 to 50 months. This is clear from Annexure-A to the counter affidavit filed on behalf of the Corporation. in 1999 a vague decision was taken by the State Government which is contained in annexure-A to the counter affidavit of the State. The Bureau of Public Enterprises Department, Government of Bihar informed the Managing Director of the Corporation that it has been decided to merge the Corporation. The actual term used in the letter is Vilain. This Court by order dated 9.9.2002 gave an opportunity to the State of Bihar to clarify its stand and accordingly, a supplementary counter affidavit has been filed in which a stand has been taken on the basis of Annexure-D, a letter dated 18th October, 2002 issued by the Joint Secretary, Department of Water Resources, Government of Bihar, that the Corporation is to suffer winding up because it is running in loss but for that the statutory audit is awaited. This decision itself is rather contradictory and has been taken in haste without waiting for the statutory audit report. Be that as it may, if the Corporation is running in loss and circumstances exist to justify winding up proceeding the same should not only be done promptly but should have been donemuch earlier when the Corporation became unable to pay the salary and other dues of its employees. By delaying the process of winding up, the State Government and the Corporation have allowed its liability to increase and have made the employees to suffer for a long period. 6. Following the law laid down by the Full Bench in the aforesaid facts and circumstances the respondent Corporation is directed to take all possible steps to pay the lawful dues of the petitioners in all these six writ petitions within a period of four months. 6. Following the law laid down by the Full Bench in the aforesaid facts and circumstances the respondent Corporation is directed to take all possible steps to pay the lawful dues of the petitioners in all these six writ petitions within a period of four months. If the Corporation is unable to pay the admitted dues within the aforesaid period and if it is not able to make itself viable, then the State Government and the authorities of the Corporation must complete all the formalities and initiate winding up proceeding in accordance with law within the said period of four months so that the assets of the Corporation which is incorporated under the Companies Act may be sold and the salary and other admitted dues of its employees including the dues of persons like the petitioners may be paid in accordance with the provisions of the Companies Act. 7. All the six writ petitions are ailoweo to the aforesaid extent.