Xpro India Ltd. Vs. Respondent.

[aftab alam ; r.m. lodha, jj.] the respondent worked in the appellant-bank as cashier-cum-clerk. the enquiry was first fixed on november 15, 1994 but on that date the respondent did not appear without giving any intimation to the enquiry officer. due to his non- appearance the enquiry was adjourned to november 28, 1994. after recording his evidence, the enquiry officer closed the enquiry and submitted his report holding the respondent guilty of all the charges. the industrial tribunal found and held that the domestic enquiry held against the respondent suffered from violation of the principles of natural justice. it appears that from the bank this letter was not handed over to the enquiry officer. admittedly, the respondent had not appeared for the enquiry on two earlier dates. in those circumstances and having regard to the fact that the witness intended to be examined by the management in support of the charge had come in connection with that enquiry from delhi to dehradun for the third time, the enquiry officer decided to proceed with the enquiry and examine him ex parte. pw.1 happened to be the branch manager where the respondent was posted at the material time and where the misappropriation was committed by him.1. none appears for the central government in spite of notice. although this application is described as having been made under section 391 of the companies act, 1956, it seeks a declaration that sections 391 to 394 have no application as far as the arrangement in question is concerned. 2. the applicant is a transferee company. the transferor was its 100% subsidiary. upon completion of the arrangement the assets and liabilities of the transferor subsidiary would vest in the transferee. but there would be no change in the share holding of the transferee, as submitted. it is also argued that this arrangement is not an arrangement between the transferee and its creditors or the transferee and its members as neither the creditors nor the members are a party to the arrangement. 3. therefore, recourse to the provisions sections 391 to 394 need not be taken. i have been cited two judgements; one of the bombay high court in mahaamba investments ltd. vs. idi limited; 105 company cases page 16 and an unreported judgment of our court made on 24th march, 2009 by brother maharaj sinha, j. in ca no.125 of 2009 in the matter of hpl cogeneration ltd. 4. i am inclined to take the view that this particular arrangement is not between the transferee company and its members but between the transferor and transferee companies. therefore, sections 391 to 394 have no application in the facts and circumstances of this case.5. i make the declaration as prayed for in the summons for direction. this application is, accordingly, disposed of. all parties concerned are to act on a signed photocopy of this order on the usual undertakings.