JUDGMENT : Nelson Sailo, J. Heard Mr. B.D. Das, the learned senior counsel assisted by Ms. R. Deka for the petitioner Union. Also heard Dr. B. Ahmed, the learned Standing Counsel for the Industries and Commerce Department and also Ms. M. Dutta, the learned counsel for the respondent No. 7. 2. This is a second round writ petition filed by the Assam Polytex Ltd. Employees Union which is represented by its General Secretary. The petitioner Union earlier approached this Court by filing WP(C) No. 3354/2013, praying for a direction to the respondent authorities to grant its members the benefit of Voluntary Retirement Scheme (VRS). The writ petition was disposed of vide Order dated 29.04.2014. 3. The facts of the case in brief is that the petitioner-Union i.e., Assam Polytex Limited Employees' Union comprises of about 378 members, who are Grade-III and Grade-IV employees in the Assam Polytex Ltd. (respondent No. 5). The Union is registered under the Trade Unions Act, 1976 under registration No. TUC/CR/No. 44/87. The respondent No. 5 is a Government of Assam undertaking incorporated in the year 1982 which started its production in 1985-86. The members of the petitioner-Union were appointed by the respondent No.5 in various capacities from 1986 onwards. Ever since their appointments, according to the petitioner-Union, they were regularly serving under the respondent No. 5. However, the production of the respondent No. 5 abruptly came to a stop in the month of March, 1993 due to various reasons thereby, rendering the members of the petitioner-Union jobless and without salaries and allowances since then. The Government of Assam in terms of the Memorandum of Understanding dated 03.01.1994 took a decision to allow a private company viz; M/s Assam Yarn Suppliers (respondent No.6) to run the respondent No.5. However, respondent No.6 could not revive the respondent No.5 and did not even engage the members of the petitioner-union contrary to the Memorandum of Understanding. 4. On 04.04.2001, the Government of Assam by an agreement allowed respondent No.6 to run the respondent No.5 by providing 100% share to it and it was further provided that the employees of the respondent No.5 i.e. the members of the petitioner-Union would be employed in a phase manner. However, the said private company did not engage the members of the petitioner-Union nor did it take any measure to run the company. In the year 2006, the Govt. However, the said private company did not engage the members of the petitioner-Union nor did it take any measure to run the company. In the year 2006, the Govt. of Assam issued the Notification dated 11.12.2006 wherein, a decision was taken for closure of 15 PSUs which were no longer functioning. The Government of Assam implemented the VRS to the employees of those PSUs by the Notification dated 15.02.2006 and released the regular employees of those PSUs. Although the members of the petitioner-Union belonged to the same category/class, the respondent authorities did not take any decision to extend the benefits of VRS to them or paid them their salaries and allowances. The case of the petitioner is that the Assistant Manager (P&A) of the respondent No. 5 on 17.01.2003 submitted a proposal before the respondent No. 1 for implementation of VRS to the employees of the respondent No.5 company including the members of the petitioner-Union, but the same has not been implemented. The representation filed by the petitioner-Union for extension of the benefit of VRS to its members did not receive any positive response which prompted the petitioner-Union to file WP(C) No.3354/2013. 5. The writ petition was disposed on 29.04.2014 by directing the State respondents to take a decision on the closure of the respondent No.5 and on the proposal for implementation of VRS upon the members of the petitioner-union in accordance with law within a period of 3 (three) months from the date of receipt of the order. 6. After the writ petition was disposed of in the above manner, the respondent No. 1 vide Order dated 16.10.2014 (Annexure-13) disposed of the claim of the petitioner by holding that there cannot be any valid justification for any kind of claim of past liability from the Government, including VRS payment to the employees of the respondent No. 5 i.e., the members of the petitioner Union. The Order dated 16.10.2014 is impugned in the present writ petition and is abstracted below:- "ORDER Dated Dispur the 16th Oct, 2014 No.MI.52/2013/214 : Perused the Order passed by the Hon'ble Gauhati High Court on 30-07-2014 in W.P.(C) No. 3598/2014 - Pradip Ch. Bora and 133 Others Vs. State of Assam and Ors. The Order dated 16.10.2014 is impugned in the present writ petition and is abstracted below:- "ORDER Dated Dispur the 16th Oct, 2014 No.MI.52/2013/214 : Perused the Order passed by the Hon'ble Gauhati High Court on 30-07-2014 in W.P.(C) No. 3598/2014 - Pradip Ch. Bora and 133 Others Vs. State of Assam and Ors. The operative part of the Order directs the State respondents to take a decision regarding implementation of VRS in respect of the petitioners in accordance with law within a period of 3 (three) months from the date of receipt of a certified copy of the order along with the petitioners of W.P.(C) No. 3354/2013 - Assam Polytex Limited Employees' Union Vs State of Assam and Ors. and whatever decision is taken shall be communicated to the petitioners. Also perused the Order passed by the Hon'ble High Court on 29-04-2014 in W.P.(C) No. 3354/2013 - Assam Polytex Limited Employees' Union represented by its General Secretary, Sri Bapdhan Boro Vs. State of Assam and Ors., the operative part of which had also directed the State respondents to take a decision on the closure of the Assam Polytex Limited (APL), Jagiroad, and on the proposal for implementation of VRS upon the members of the petitioner-union in accordance with law within a period of 3 (three) months from the date of receipt of the order. Examined the relevant documents, files, records pertaining to the matter, carefully, it is observed that, so far as the position of the State Govt. vis-a-vis the employees of APL is concerned, APL has already been privatized, liabilities towards Financial Institutions were cleared and the shares have been transferred to the private party, M/s Assam Yarn Suppliers (AYS). It is also found in records that an MoU was signed between the Government of Assam and M/s Assam Yarn Suppliers dated 03-01-94 for running the Mill. It is noted that, an Agreement was also executed on 04-04-2001 between Industries and Commerce Department and the AYS detailing the procedures/modalities to restart the Mill. As per provisions laid down in clause 2 (i) of the Agreement, "the Govt. of Assam agreed on the terms that the officers/workers and Staff of the APL cannot claim any past liability from APL on the new Company. As per provisions laid down in clause 2 (i) of the Agreement, "the Govt. of Assam agreed on the terms that the officers/workers and Staff of the APL cannot claim any past liability from APL on the new Company. The workers and other employees will be entitled to get their monthly wages/salary for future work only on the basis of new agreement of employment signed by them with the new management of the said Company." It is also noted that as per provision laid down in clause 2 (b) of the said Agreement, "the AYS agreed to operate Assam Polytex Ltd. under a new company by way of sale/lease/rent. The Government of Assam also agreed on the above terms provided all the workers and staff will be employed in the said new company on fresh terms and conditions framed by the new company. The workers and staff also agreed on the above terms by submitting a letter dated 07-11-1997 to Govt. of Assam. On 17-05-2000 the workers again expressed their willingness to work on the terms stated in their letter dated 07-11-1997". From the facts and circumstances stated above, it is therefore inferred that there cannot be any valid justification for any kind of claim of past liability from Govt. including VRS payment to APL employees. Hence the matter raised in the Court Case is disposed of by issuing this Speaking Order. Let the decision be communicated to the members of the petitioner Union immediately. Sd/- (R.T. Jindal) Addl. Chief Secretary to the Govt. of Assam Industries and Commerce Department." 7. Mr. B.D. Das, the learned senior counsel submits that the respondent No. 5 stopped functioning from the month of January, 1993 and thereafter, the State Government by issuing an advertisement invited the private sector participation for running the Company. In response, the respondent No. 6 i.e., M/s Assam Yarn Supplier submitted its offer to run the Company by acquiring 89% shares of the total equity shares and entered into a Memorandum of Understanding (MOU) dated 03.01.1994, incorporating various terms and conditions. As per the MOU, the respondent No. 6 is to pay the restart expenses amount of Rs. 478 Lakhs and the transfer of 89% equity shares in a phase wise manner in proportion to the amount paid out of the total liability of Rs. 478 Lakhs. As per the MOU, the respondent No. 6 is to pay the restart expenses amount of Rs. 478 Lakhs and the transfer of 89% equity shares in a phase wise manner in proportion to the amount paid out of the total liability of Rs. 478 Lakhs. It was also provided that the State Government will consider transferring the remaining 11% share holding of the Company after final payment of Rs. 478 Lakhs on some consideration. The Government then handed over the possession of the Mill to the respondent No. 6 on 30.06.1995. However, the respondent No. 6 did not invest any amount in the Company towards their liability/restart expenses and the respondent No. 5 Company remained in an abandoned condition. Under the circumstance, the State Government in the Department of Industries and Commerce entered into a fresh agreement with the respondent No. 6 on 04.04.2001, reiterating the amount payable by the respondent No. 6 as on 15.05.2000 at Rs.478 lakhs and the restart expenses by the respondent No. 6 will have to be borne within 3 (three) years from the date of filing of the agreement and transferred of 51% share capital considering the capital expenditure to be incurred by the respondent No. 6. However, despite the above agreement on 04.04.2001, the State Government and the respondent No. 6 have not taken any steps for revival or restarting the Mill and the status of the employees of the respondent No. 5 Company as well as the employers remains the same. 8. The learned senior counsel further submits that the members of the petitioner Union were not party to the letters dated 07.11.1997 or 17.05.2000 as referred to by the respondent No. 1 in the impugned Order dated 16.10.2014 by which, it was alleged that the workers agreed to work in the new Company on fresh terms and conditions as may be framed by the respondent No. 6 and the respondent authorities, particularly the respondent No. 1 took steps for revival of the Mill literally by MOU dated 03.01.1994 and Agreement dated 04.04.2001 for transfer of equity shares etc., without taking the note of the grievances of the employees, which however, has not been honored by the respondent No. 6. Pursuant to the MOU, the respondent No. 6 did not pay any amount to the Government and the Mill has not been operated. Pursuant to the MOU, the respondent No. 6 did not pay any amount to the Government and the Mill has not been operated. Therefore, the respondent authorities vide Letter dated 08.02.1996 informed the respondent No. 6 that a sum of Rs. 1 Crore was not paid as per Clause 4 (c)(ii) of the MOU and requested them to restart the Mill by 29.06.1996 failing which, the Government will be at liberty to make alternative arrangement. Thereafter, the Government of Assam entered into another Agreement dated 04.04.2001 and the same remain unfulfilled and the members of the petitioner Union have been deprived of their right to work and pay. 9. The learned senior counsel submits that in a case of similar nature in respect of M/s Cachar Sugar Mills Ltd., a Government of Assam Company, incorporated in the year 1972 was closed down in the year 1984-85. Despite several attempts for revival of the Company and handling over the management to private party by signing an agreement, the Government of Assam could not revived the same and the employees of the Company were not paid salaries and allowances. As a result, the employees of M/s Cachar Sugar Mills Ltd. approached this Court by filing WP(C) No. 5082/1999 and WP(C) No. 2420/2005. The two writ petitions were disposed of vide Order dated 08.12.2006 by directing the respondents to take a final decision with regard to the closures of the Mills and thereafter, to take out the financial package that will be required to be paid to the permanent workers of the Mill. In terms of the direction, the State Government took a decision for formal closure of the Mill and released the employees by providing VRS in the year 2007. Likewise, in respect of Assam State Weaving and Manufacturing Company Ltd., the Company was incorporated in the year 1988 and started production in the year 1989. However, production stopped from the year 1996 and the Company was declared closed by the State Government vide Notification dated 11.12.2006 and the regular employees of the Company were released from service on payment of their dues under VRS package provided by the State Government. 10. Mr. B.D. Das, the learned senior counsel also submits that other similar batches of writ petitions numbered as WP(C) Nos. 10. Mr. B.D. Das, the learned senior counsel also submits that other similar batches of writ petitions numbered as WP(C) Nos. 6092/2010, 415/2013 and 429/2013 filed by the employees of Swahid Kushal Konwar Samabai Sutakal Ltd. and Assam Co-Operative Spinning Mills Ltd. along with others claimed for VRS benefits to their employees and this Court vide Judgment and Order dated 30.11.2014 directed the State authorities to do the needful towards providing VRS benefits on or before 31.03.2015. But in respect of the members of petitioner Union, the State Government has not taken any steps to provide them their outstanding salaries and for releasing them from their service by providing VRS. He submits that on 03.12.2014, a representation was also submitted before the respondent No. 7 with regard to non-depositing of provident fund amount of the members of the petitioner Union by the respondent No. 5 and to take necessary action. However, despite the representation, no steps have been taken by the authorities concerned till date. 11. The learned senior counsel by referring to the affidavit-in-opposition filed by the respondent No. 7 submits that it is the stand of the respondent No. 7 that the respondent No. 5 has defaulted in paying statutory dues as well as in the submission of annual returns for the period from 1993-1994 onwards and the total outstanding dues accumulated to the tune of Rs. 50,13,782/- (Rupees Fifty Lakhs Thirteen Thousand Seven Hundred Eighty Two) only "both employer and employees share" up to financial year 1992-1993. Claims of most of the employees could be only settled partly due to non-deposit of the actual dues. The respondent No. 7 contends that a squad of Enforcement Officer were deputed to visit the establishment vide Office Order dated 11.03.2015 and asked to submit a report against the complaint submitted on 03.12.2014. The squad submitted its report vide letter dated 23.03.2015, wherein it has been stated that the Enforcement Officer visited the establishment on 20.03.2015 and found no expenses of the establishment and it was learnt that the establishment has been lying closed since the last 20 years. It was further reported that presently, a CRPF camp was set up in the premises of the establishment and as such, no records could be found by them. It was further reported that presently, a CRPF camp was set up in the premises of the establishment and as such, no records could be found by them. Further, in view of the filing of the writ petition, the members of the petitioner Union were not willing to co-operate with the Enforcement Officer. 12. Challenging the impugned Order dated 16.10.2014, the learned senior counsel submits that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may by the time it comes Court on account of a challenge, get validated by additional grounds later brought out. In this connection, he relies upon the case of Mohinder Singh Gill and Anr. Vs. Chief Election Commission and Anr., (1978) 1 SCC 405 . 13. Dr. B. Ahmed appearing for the Co-operation Department submits that since the Co-operation Department did not file a separate affidavit-in-opposition and he will be relying upon the affidavit-in-opposition of the respondent No. 4 as well as the respondent No. 7. He submits that a Company is not a separate entity and therefore, petition will lie on the claim for salary. In this connection, he refers to Section 7 of the Companies Act, 2013. He submits that the case of Assam Sugar Mills Ltd. is not similar with the present case and therefore, the petitioner cannot claim or demand a similar benefit. He further submits that unless a Company is wound up, the Government has no role. He refers to Sections 290,291 and 462 of the Companies Act, 2013. He also submits that due to the agreement arrived between the parties concerned, the Company could not be closed. The two agreements referred to by Dr. B. Ahmed is the MOU signed on 03.01.1994 and the agreement signed on 04.04.2001. The learned counsel therefore submits that the respondents, more particularly Industries and Commerce Department do not have any liability against the members of the petitioner Union. As such, the writ petition being without any merit, the same should be dismissed. 14. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials on record. At the outset, it may be noticed that only the respondent Nos. As such, the writ petition being without any merit, the same should be dismissed. 14. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials on record. At the outset, it may be noticed that only the respondent Nos. 4 to 7 have filed their affidavit-in-opposition. The Industries and Commerce Department i.e. respondent Nos. 1, 2 and 3 have not filed any affidavit-in-opposition. According to the affidavit of the respondent No. 4 i.e., the Commissioner and Secretary to the Govt. of Assam, Public Enterprise Department, the State Government in the Industries and Commerce Department decided to run their company i.e. M/S Assam Polytex Limited through a private party and accordingly, a Memorandum of Understanding (MoU) and an Agreement was signed on 03.01.1994 and 04.04.2001 respectively with the respondent No. 6 i.e., M/S Assam Yarn Suppliers for revival of the company with 100% transfer of shares along with the employees to the private party. Further, it can be seen that the State Government privatised M/S Assam Polytex Limited much earlier than the closure decision taken on as many as 9 State public sector undertakings and 2 industrial units of another public sector undertaking on 11.12.2006 under the Assam Governance and Public Resource Management Program. 15. Despite such development, it is the case of the petitioner Union that the respondent No. 6 did not engage the members of the petitioner Union nor did it take any measures to run the company. They also contend that they are in the same category or class with the employees of the public sector undertakings who were given the benefits of VRS by the State Government vide Notification dated 15.02.2006. Therefore, there is no reason as to why they should not be given similar benefits. The further stand of the petitioner Union members is that they were not party to the letters dated 07.11.1997 and 17.05.2000 as referred to by the Addl. Chief Secretary to the Govt. of Assam, Industries and Commerce Department in the impugned order dated 16.10.2014 (Annexure-13). They contend that it was never agreed upon by them to work under the new company on fresh terms and conditions as will be framed by the respondent No. 6 and the respondent authorities. Chief Secretary to the Govt. of Assam, Industries and Commerce Department in the impugned order dated 16.10.2014 (Annexure-13). They contend that it was never agreed upon by them to work under the new company on fresh terms and conditions as will be framed by the respondent No. 6 and the respondent authorities. Although the respondent No. 1 took steps for revival of the Mill through the MoU dated 03.01.1994 and the Agreement dated 04.04.2001 but the fact remains that the terms and conditions provided in the 2 documents remain unfulfilled and the members of the petitioner Union have been deprived of the benefits as may be entitled to them. 16. The affidavit-in-opposition of the respondent No.7 also goes to show that the respondent No. 6 has defaulted in payment of statutory dues as well as in submitting returns for the period from 1993-1994 onwards and the total outstanding dues accumulated to a tune of Rs. 50,13,782/- (both employer and employees share) up to the financial year 1992-1993. The claims of most of the employees could only be settled partly due to non deposit of actual dues towards the fund by the employer. The respondent No. 7 further contends that a squad of Enforcement Officer were deputed to visit the establishment vide office order dated 11.03.2015 and they were directed to submit a report in detail in respect of the establishment vis-a-vis the complaint dated 03.12.2014 within 7 (seven) days. As directed, the squad submitted a report vide letter dated 23.03.2015, which was to the effect that on visiting the establishment on 20.03.2015, they found no existence of the establishment and they also learnt that the establishment has been lying closed for the last 20 years. A further report dated 23.03.2015 was again to the effect that presently a CRPF camp was setup in the premises of the establishment and that no records could be found. Further, the Enforcement Officer tried to meet the President and the General Secretary of the petitioner Union but both of them were unavailable. 17. Coming to the impugned order dated 16.10.2014, passed by the Addl. Chief Secretary to the Govt. of Assam, Industries and Commerce Department, it is noticed that the said authority examined the relevant documents, files, records etc. Further, the Enforcement Officer tried to meet the President and the General Secretary of the petitioner Union but both of them were unavailable. 17. Coming to the impugned order dated 16.10.2014, passed by the Addl. Chief Secretary to the Govt. of Assam, Industries and Commerce Department, it is noticed that the said authority examined the relevant documents, files, records etc. including the MoU dated 03.01.1994 and the Agreement dated 04.04.2001 and thereafter came to the conclusion that since the Assam Polytex Limited has already been privatised and the shares transferred to the respondent No. 6, the State Government will have no liability including payment of VRS to the employees of the Assam Polytex Limited. In coming to such conclusion, the said authority took into consideration the letters dated 07.11.1997 and 17.05.2000. However, claim of the members of the petitioner Union is that despite the MoU and Agreement signed, none of the benefits mentioned in the 2 documents have been given to them let alone the VRS. Importantly, it is noticed that the impugned order dated 16.10.2014 was passed without giving the members of the petitioner Union an opportunity of being heard personally. I am of the considered view and opinion that an opportunity of hearing in the facts and circumstances of the case is a must and the same should not be just an empty formality. In that view of the matter, without entering any further into the controversy, I propose to dispose of the writ petition with a direction to the respondent No. 1 i.e. the Addl. Chief Secretary to the Govt. of Assam, Industries and Commerce Department (respondent No. 1) to once again look into the matter by giving the members of the petitioner Union an opportunity of hearing on a date to be fixed by him. The members of the petitioner Union will appear before the respondent No. 1 through their authorised representatives along with all the supporting documents they wish to produce. The respondent No. 1 upon due consideration of the case projected by the representatives shall pass a speaking order. The order to be passed shall be communicated to the petitioner Union. 18. It is ordered accordingly. The impugned order dated 16.10.2014 (Annexure-13) is hereby set aside. 19. The respondent No. 1 upon due consideration of the case projected by the representatives shall pass a speaking order. The order to be passed shall be communicated to the petitioner Union. 18. It is ordered accordingly. The impugned order dated 16.10.2014 (Annexure-13) is hereby set aside. 19. The exercise as directed herein above should be completed by the respondent No. 1 within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. No cost.