Judgment : 1. These applications are filed by the Workers' Union of the company-in-liquidation, seeking leave under Section 446 of the Companies Act, 1956 (i) to proceed with the claim petition filed on the file of the Labour Court in Kozhikode; and (ii) to proceed with the claim petition before the Controlling Authority under the Payment of Gratuity Act, 1972. 2. I have heard Mr.Vineet Subramani, learned counsel for the applicant and Mr.Arvind Shukla, learned Official Liquidator. 3. The company M/s.SILCAL METTALURGIC LIMITED, was ordered to be wound up by this Court, by an order dated 24.11.2006, in a company petition C.P.No.141 of 1999. In other words, the main company petition was filed 14 years ago and the order of winding up was passed on 24.11.2006. 4. It appears that the Workers' Union raised an Industrial Dispute regarding their nonemployment, contending that the industry had more than 100 workmen on the relevant date and that without following the mandatory requirements under Section 25-O of the Industrial Disputes Act, 1947, it was closed down. It was their further contention that from 18.10.2001, the workers were denied employment and that in a claim petition filed before the Labour Court, the management conceded the factum of closure and agreed to pay interim relief at the rate of Rs.1,000/-per month to each worker till the factory gets reopened. The undertaking of the management to pay the interim relief from 6.9.2002 to 31.3.2006 was taken on record and an order was passed by the Labour Court in the claim petition. Subsequently, another claim petition was filed on 12.9.2008. During the pendency of the said claim petition, the Government of Kerala referred for adjudication, the dispute relating to non-employment, to the Industrial Tribunal under G.O.(Rt) No.1216 of 2009 dated 18.8.2009. The Industrial Tribunal passed an award in I.D.No.50 of 2009 dated 23.1.2012, holding the denial of employment to the workers with effect from 18.10.2001 as unjustified and declaring that the workers should be deemed to have continued in service till the date of the award and that they should be paid closure compensation for the entire service till that date. 5. It is pertinent to point out that the Industrial Dispute was contested by the management, by examining the Managing Director and also producing documents. 6. 5. It is pertinent to point out that the Industrial Dispute was contested by the management, by examining the Managing Director and also producing documents. 6. After the award of the Labour Court, the workers appear to have filed a claim petition for computation under Section 33-C(2) of the Act, in C.P.No.11 of 2012 before the Labour Court, Kozhikode. They have also filed a separate petition before the Controlling Authority under the Payment of Gratuity Act, 1972. At that stage, the Workers' Union came to know that the company was already ordered to be wound up. Therefore, they have come up with the above two applications, seeking leave to proceed with the claim petition before the Labour Court and also to proceed with the petition before the Controlling Authority under the Payment of Gratuity Act. 7. Mr.Arvind Shukla, learned Official Liquidator opposes the above application on the short ground that after this Court passed an order for winding up the company on 24.11.2006, the very reference of the dispute by the Government to the Industrial Tribunal on 18.8.2009 and the award passed on 23.1.2012 are without jurisdiction. The workers ought to have filed a claim petition before the Official Liquidator and they are entitled to do so even now. The learned Official Liquidator states that whatever is due to the workers, would be settled in accordance with Section 529-A, after adjudication of the claims. 8. In response to the above objection of the learned Official Liquidator, it is contended by the learned counsel for the applicant that the workers were not aware of the order of winding up. The management did not bring it to the notice of the Industrial Tribunal that there was an order of winding up. On the contrary, the case was contested by the management before the Industrial Tribunal. It was only when the claim petitions were filed pursuant to the award that the factum of winding up was brought to the notice of the applicant. Therefore, the learned counsel contends that the award passed by the Industrial Tribunal, cannot be ignored. 9. On the contrary, the case was contested by the management before the Industrial Tribunal. It was only when the claim petitions were filed pursuant to the award that the factum of winding up was brought to the notice of the applicant. Therefore, the learned counsel contends that the award passed by the Industrial Tribunal, cannot be ignored. 9. In addition to the above factual details, the learned counsel for the applicant also contended that the Labour Court is a Special Court invested with very special powers, which cannot be exercised by the Official Liquidator and that the Official Liquidator, could not have taken the role of either the Conciliation Officer or the Labour Court for adjudication of an industrial dispute. In support of the said contention, the learned counsel for the petitioner relies upon one decision of the Supreme Court in S.V.Kondaskar vs. V.M.Deshpande { AIR 1972 SC 878 }, one judgment of the Kerala High Court in B.V.John vs. Coir Yarn and Textiles Ltd { AIR 1960 Ker. 247 } and one judgment of the Division Bench of the Karnataka High Court in Basavaiah vs. Sri Krishnarajendra Mills Ltd { 2001 (106) CC 366 }. 10. In S.V.Kondaskar, the Supreme Court was concerned with the case of a company on which notices under Section 148 of the Income Tax Act, 1961 for reopening the assessment were served upon the Official Liquidator, after the company was ordered to be wound up. The Official Liquidator questioned the jurisdiction of the Income Tax Officer, to proceed with the re-assessment, without the leave of the Company Court under Section 446. The Company Judge accepted the contention of the Official Liquidator. But the Division Bench of the Bombay High Court set aside the order of the Company Judge on the ground that the proceedings by way of assessment before the Income Tax Officer were outside the pale of jurisdiction of all Civil Courts including the Company Court. When the Official Liquidator appealed to the Supreme Court, the Supreme Court found that the only question that required their consideration was as to whether it was necessary for the Income Tax Officer to obtain the leave of the Liquidation Court, for re-assessment of the income of the company that escaped assessment. When the Official Liquidator appealed to the Supreme Court, the Supreme Court found that the only question that required their consideration was as to whether it was necessary for the Income Tax Officer to obtain the leave of the Liquidation Court, for re-assessment of the income of the company that escaped assessment. Answering the question in the negative, the Supreme Court held that the Winding up Court cannot be held to be empowered to transfer the assessment proceedings to itself and assess the company to income tax. The Court pointed out that "the language of Section 446 must be so construed as to eliminate such startling consequences as investing the winding up Court with the powers of an Income Tax Officer conferred on him under the statute." 11. After rejecting the argument that the leave of the Liquidation Court is necessary even for assessment or re-assessment of a company, the Supreme Court also held in the aforesaid decision that after income tax has been determined and its payment demanded from the Official Liquidator, the Liquidation Court would have full power to scrutinise the claim of the revenue. In other words, the Supreme Court recognised the power of the Liquidation Court "to decide how far under the law, the amount of income tax determined by the department should be accepted as a lawful liability on the funds of the company-in-liquidation." The Court further held that at the stage when a demand is made by the Income Tax Officer, the Winding up Court can fully safeguard the interests of the company and its creditors. 12. In B.V.John, the Kerala High Court was concerned with applications filed against the orders of the Official Liquidator rejecting the claims of the workmen of the company-in-liquidation partially. Two questions arose before the Company Court. 12. In B.V.John, the Kerala High Court was concerned with applications filed against the orders of the Official Liquidator rejecting the claims of the workmen of the company-in-liquidation partially. Two questions arose before the Company Court. They were (i) whether the compensation payable to these workmen on the termination of their services is to be determined under Sections 25F(b) of the Industrial Disputes Act, 1947, free of the limitation imposed by the proviso to Sections 25FFF(1) as claimed by them and (ii) whether the award made by the Industrial Tribunal, Alleppey on 5.8.1957 on a reference under Section 10 of the Industrial Disputes Act and published under Section 17, in the Gazette dated 27.8.1957 of a dispute between the company and those of its workmen as come under the category, "staff members", is void for the reason that no leave of this Court was taken under Section 446 of the Companies Act for the continuance of the proceedings after the winding up order and the liquidator is therefore entitled to ignore that award. 13. The facts and circumstances under which the above case arose before the Kerala High Court were (i) that in the year 1954, the Government made a reference to the Industrial Tribunal, Trivandrum, of a dispute that related to annual increments due from 1952; (ii) that it was later transferred in June 1956 to the Industrial Tribunal, Alleppey; (iii) that on 24.12.1956, the Official Liquidator was appointed as Provisional Liquidator; (iv) that after the appointment of the Provisional Liquidator, the Staff Association moved the Industrial Tribunal with two applications, one for impleading the Provisional Liquidator as a party and another for taking action against him for dispensing with the services of some workmen without the permission of the Industrial Tribunal; (v) that upon receipt of notices in those two applications, the Provisional Liquidator moved the Company Court on 1.4.1957 and obtained a stay of further proceedings only in respect of those two applications, but not in respect of the very reference pending before the Industrial Tribunal; and (vi) that on 24.5.1957, the winding up was ordered. 14. In view of the fact that the stay granted by the Company Court was confined only to the two applications and not to the very reference pending before the Industrial Tribunal, the Tribunal proceeded with the hearing of the reference. The Official Liquidator did not participate in the proceedings. 14. In view of the fact that the stay granted by the Company Court was confined only to the two applications and not to the very reference pending before the Industrial Tribunal, the Tribunal proceeded with the hearing of the reference. The Official Liquidator did not participate in the proceedings. Eventually, an award was passed granting increments as also wages. But, the Liquidator ignored the award, when a claim was filed and this resulted in appeals under Section 460 (6) of the Companies Act, 1956. 15. In the above background of facts, the Kerala High Court held on the second question that Section 446 can have no application to proceedings pursuant to a reference under Section 10 of the Industrial Disputes Act, 1947 and that to come within the scope of the Section, the proceeding must be in the nature of an action against the property of the company. The Court also pointed out that if the proceeding is not for the enforcement of something in the nature of personal right against the assets of the company, but is for vindication of public interest, then Section 436 would not apply. Going little further, the Court also held that the Industrial Disputes Act is conceived in public interest and that though an adjudication under the Act might have the result of giving individual workmen, personal rights against the property of the owner, its purpose is not really that, but to settle the industrial dispute. Relying upon a decision of the Patna High Court in S.K.G.Sugar Limited vs. Ali Hassan { AIR 1957 Pat. 722 }, the Kerala High Court held that a reference under Section 10 of the Industrial Disputes Act, is not subject to the provisions of Section 171 of the Companies Act of 1913, which later became Section 446 of the 1956 Act. 16. In Basavaiah, a Division Bench of the Karnataka High Court was concerned with a case arising under peculiar circumstances. In that case, the services of the workmen of a Mill were terminated in 1979 and 1980. They raised an industrial dispute and the same was referred by the State Government to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act, 1947 in Reference No.132 of 1981. During the pendency of the reference, the company was ordered to be wound up by an order dated 27.10.1988. They raised an industrial dispute and the same was referred by the State Government to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act, 1947 in Reference No.132 of 1981. During the pendency of the reference, the company was ordered to be wound up by an order dated 27.10.1988. But on 12.10.1989, the Labour Court passed an award, setting aside the termination and directing the reinstatement with full back wages and continuity of service. On 31.7.1991, the order of winding up was recalled on the ground that an enquiry was already pending before BIFR. But the order of winding up was restored subsequently, after the conclusion of the proceedings before BIFR and AAIFR. Therefore, the workmen filed applications under Section 33-C(2) of the Industrial Disputes Act, 1947 for computation. Despite the company having been ordered to be wound up, the workmen did not take the leave of the Company Court under Section 446, before filing the petition for computation under Section 33-C(2). The Labour Court, however, proceeded with the computation and passed an order on 13.1.1993. On the basis of the said order, the workmen filed 3 applications seeking a direction to the Official Liquidator to pay the amounts. The applications were referred by the Company Judge to the Division Bench and the Division Bench formulated for consideration, the question as to whether or not an order passed by the Labour Court under Section 33-C (2), against a company which had already been ordered to be wound up, was valid and enforceable, when the order of winding up was not brought to the notice of the Labour Court and when no leave under Section 446 had been obtained. 17. After taking note of the decision of the Supreme Court in S.V.Kondaskar, the decision of the Patna High Court in S.K.G.Sugar Ltd., and the decision of the Kerala High Court in B.V.John, the Division Bench of the Karnataka High Court made a distinction between a reference under Section 10(1)(c) and the proceedings under Section 33-C(2). The Court indicated that though the adjudication of industrial dispute is considered to be in public interest, the proceedings under Section 33-C(2) are only for enforcement of personal rights. The Court indicated that though the adjudication of industrial dispute is considered to be in public interest, the proceedings under Section 33-C(2) are only for enforcement of personal rights. Interestingly, the Division Bench of the Karnataka High Court rejected the plea of ignorance raised on behalf of the workmen, by holding that "a statutory mandate cannot be avoided on the ground of ignorance or hardship". 18. In the light of the factual background that led to the aforesaid decisions of the Supreme Court, the Patna High Court, Kerala High Court and the Karnataka High Court, let me now examine the primary contention of the learned counsel for the applicants that the award passed by the Labour Court on the reference made under Section 10 of the Industrial Disputes Act, 1947, was valid in the eye of law, despite having been made, after the order of winding up. 19. There is no dispute about the time line of events viz., (i) that the order of winding up was passed on 24.11.2006; (ii) that the industrial dispute raised by the workmen with regard to the alleged closure of the undertaking from 18.10.2001, was referred by the Government of Kerala to the Industrial Tribunal only under a Government Order dated 18.8.2009; and (iii) that the Industrial Tribunal passed an award on 23.1.2012. 20. In the light of the above admitted facts, let me now examine the decisions of the Patna and Kerala High Courts. The decisions of the Patna and Kerala High Courts were rendered before Section 446(2) was amended by Act 65 of 1960. Before the Amendment Act 65 of 1960 was passed, sub-section (2) of Section 446 read as follows:- "(2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of, any suit or proceeding by or against the company." 21. Before the Amendment Act 65 of 1960 was passed, sub-section (2) of Section 446 read as follows:- "(2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of, any suit or proceeding by or against the company." 21. By Amendment Act 65 of 1960, the following was substituted as sub-section (2):- "(2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of -- (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches in India); (c) any application made under Section 391 by or in respect of the company; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company; Whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960." 22. The Amendment Act 65 of 1960 received the assent of the President on 28.12.1960. The decision of the Kerala High Court was rendered on 23.11.1959. The decision of the Patna High Court was even before. The amendment to sub-section (2) brought forth by Act 65 of 1960 is significant in that by the said amendment, "any claim made by or against the company" was brought within the jurisdiction of the Company Court. The scope of sub-section (2) was expanded to a great extent by Amendment Act 65 of 1960. 23. It must be remembered that the Patna High Court and the Kerala High Court were concerned only with the question whether the expression "other legal proceeding" found in Section 446(1) would include a reference of an industrial dispute to a Labour Court or not. While sub-section (1) uses the expression "other legal proceeding", both before and after the amendment, sub-section (2) used only the expression "proceeding" before amendment. While sub-section (1) uses the expression "other legal proceeding", both before and after the amendment, sub-section (2) used only the expression "proceeding" before amendment. But after amendment, sub-section (2) uses the expression "proceeding" in clause (a) and the expression "any claim" in clause (b). Thus, sub-section (2) has been made of widest amplitude. In such circumstances, the decisions of the Patna and Kerala High Courts are of no avail. 24. In so far as the decision of the Division Bench of Karnataka High Court is concerned, it distinguished the decisions of the Patna and Kerala High Courts at least in so far as petitions under Section 33-C(2) are concerned. In the case on hand, I am also concerned only with the petitions under Section 33-C(2) and the petitions under the Payment of Gratuity Act. These petitions are actually "claim petitions", by the very nomenclature given to them under the respective enactments. Section 446(2)(b) of the Companies Act, 1956 also uses the expression "claim". Therefore, it is but proper that the applicants file claim petitions only before the Official Liquidator in the prescribed format. 25. In so far as the decision of the Supreme Court in S.V.Kondaskar is concerned, I do not think that the ratio decidendi of that case can be imported to this case. In that case, the Supreme Court was concerned with a notice for revision of assessment issued by the Income Tax Officer under Section 148 of the Income Tax Act, 1961. The power of re-assessment specifically vests only with the Income Tax Officer and it is a statutory function performed by him for the determination of a crown debt. Such a power cannot obviously be exercised by the Company Court or the Official Liquidator. If such a power is assumed to exist in the Company Court, the Court would then be turned into a place where all kinds of assessments, including the assessments for income tax, sales tax, central excise, customs etc., could take place. Such a result is patently absurd and hence the Supreme Court pointed out the frivolity of such an argument. But nevertheless the Supreme Court held in the last paragraph of the judgment that after reassessment and after quantification of the tax due, the Income Tax Officer should also fall in line and that the Liquidation Court would have the power to scrutinise the claim of the revenue. But nevertheless the Supreme Court held in the last paragraph of the judgment that after reassessment and after quantification of the tax due, the Income Tax Officer should also fall in line and that the Liquidation Court would have the power to scrutinise the claim of the revenue. Therefore, the decision of the Supreme Court will not go to the rescue of the applicants. 26. It is true that the object of the Industrial Disputes Act, 1947 and the mechanism provided therein are for subserving a public interest namely that of resolving industrial disputes and securing industrial peace. But the moment an order of winding up is passed, the very existence of the industry comes under threat and hence the question of resolving a dispute therein and securing peace between the management and the workmen in a potentially non-existent entity would not arise. The element of public interest, that inheres in an industrial dispute, ceases to exist, the moment a winding up order is passed. Upon the winding up order being passed, the public interest that underlies an industrial dispute gets converted into a mere claim for money. The claim cannot even be for reinstatement, unless the company is restored by some process. 27. In the case on hand, the facts speak for themselves. The order of winding up was passed on 24.11.2006. The very reference of the dispute to the Industrial Tribunal was made by the Government only on 18.8.2009, much after the order of winding up. Therefore, the bogey of public interest could not have been raised after 24.11.2006. 28. It is claimed by the learned counsel for the applicants that neither the applicants nor the Industrial Tribunal was informed of the order of winding up. But this is hardly an issue that could tilt the balance. Even in the decision of the Division Bench of the Karnataka High Court relied upon by the learned counsel for the applicants, it was made clear that "a statutory mandate cannot be avoided on the ground of ignorance or hardship". 29. As a matter of fact, the argument regarding ignorance, may even cut at the very claim of the applicants. If the Industrial Tribunal was aware of the order of winding up, it could not have passed the award that it ultimately passed. 29. As a matter of fact, the argument regarding ignorance, may even cut at the very claim of the applicants. If the Industrial Tribunal was aware of the order of winding up, it could not have passed the award that it ultimately passed. By the award dated 23.1.2012, the Industrial Tribunal held that the workmen should be deemed to have continued in service till the date of the award and that they should be paid closure compensation for the entire service till that date. In other words, the effect of the award of the Industrial Tribunal is that in a company that was ordered to be wound up on 24.11.2006, these workmen will be deemed to have continued in service till 23.1.2012. Such an absurd consequence cannot be permitted in law. 30. Fortunately in the case on hand, the Industrial Tribunal passed an award only for closure compensation. Suppose an award of reinstatement had been passed, I do not know how one could expect the Official Liquidator to execute the award. 31. We must also take note of two more important amendments made to the Industrial Disputes Act, 1947. Prior to the Amendment Act 65 of 1960, Section 530(1)(b) read as follows:- "530. (1) In a winding up, there shall be paid in priority to all other debts - (a) ... ... (b) All wages or salary (including wages payable for time or piece work and salary earned wholly or in part by way of commission) of any employee, in respect of services rendered to the company and due for a period not exceeding four months within the twelve months next before the relevant date, subject to the limit specified in sub-section (2)". 32. By the Amendment Act 65 of 1960, certain words, letters and figures were inserted after the words "relevant date" in Section 530(1)(b). After the amendment, Section 530 (1)(b) read as follows:- "530. (1) In a winding up, there shall be paid in priority to all other debts - (a) ... ... 32. By the Amendment Act 65 of 1960, certain words, letters and figures were inserted after the words "relevant date" in Section 530(1)(b). After the amendment, Section 530 (1)(b) read as follows:- "530. (1) In a winding up, there shall be paid in priority to all other debts - (a) ... ... (b) All wages or salary (including wages payable for time or piece work and salary earned wholly or in part by way of commission) of any employee, in respect of services rendered to the company and due for a period not exceeding four months within the twelve months next before the relevant date and any compensation payable to any workman under any of the provisions of Chapter VA of the Industrial Disputes Act, 1947, subject to the limit specified in sub-section (2)". 33. Thus by the Amendment Act 65 of 1960, an important ingredient was inserted into Section 530(1)(b). What was inserted is shown by me in bold italics in the preceding paragraph. But these words, letters and figures, inserted by the Amendment Act 65 of 1960 were again omitted by the Companies (Amendment) Act, 1985. This was due to the fact that by Amendment Act 35 of 1985, Section 529-A was inserted to take care of the workmen's dues. Thus, much water has flown, after the Patna and Kerala High Courts decided the issues in the decisions cited by the learned counsel for the applicants. 34. In view of the above, I hold that the applicants cannot proceed with their claim petitions under Section 33-C(2) of the Industrial Disputes Act, 1947. They cannot also fall back upon the award passed by the Industrial Tribunal. 35. However, it is fairly conceded by the learned Official Liquidator that the workmen can lodge claims in the prescribed format with him and that whatever are their legitimate dues, upto the date of the order of winding up, could be considered by him favourably. Therefore, both these applications are dismissed. The workers are directed to file claim petitions before the learned Official Liquidator and the learned Official Liquidator shall adjudicate those claims, in the manner prescribed by law, preferably within a period of two months from the date of the filing of the claim petitions. There will be no order as to costs.