Panchu Mahakud and ors. Vs. P.C. Mohanty and ors. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 1. a short, but interesting question has been raised in this case.a. pasayat, j.1. a short, but interesting question has been raised in this case. whether on the death of an employer, there is scope for substitution of his legal heirs, in aproceeding under section 33c(2) of industrial disputes act, 1947 (in short, the 'act') is that question.2. a brief reference to the factual aspects is necessary for clearing the deck relating to the legal position. one b.c. mohanty (hereinafter referred to as the 'employer') was the lessee under state government. in respect of chromite mine at sukinda, and he was proprietor of his business concern. on account of advanced age, he sought for permission from the state government to transfer the lease. such permission was granted on october 30, 1980, on april 27, 1981 a transfer deed was executed, and the concern was taken over by a company incorporated under the companies act, 1956 styled as m/s. e.g. mohanty and co.ltd. with effect from april 28, 1981. an application under section 33c(2) of the act was filed by the petitioner on april 28, 1981 before the labour court, bhubaneswar. during its pendency, employer died on november 4, 1983. an application was filed by petitioner for substituting his legal heirs, which was rejected by the labour court on the ground that on the death of employer the proceeding abated, and there was no scope for any substitution as provisions of code of civil procedure, 1908 (in short, 'cpc') were not applicable to aproceeding under sec.33c(2) of the act. reliance was placed on a decision of this court in haramani naik and ors. v. management, samaj and another 46(1978)clt 283 where a division bench of this court while dealing with the question v 'ether on the death of worker, the proceeding abate' held in the affirmative. it was held that same analogy can be applied in case of employer.3. mr. a. mukherjee, learned counsel for petitioner submits that analogy accepted by the labour court is not in accordance with law, equity and fair play. though application of cpc to a proceeding under the act is to a limited extent, procedure which would further ends of justice can be adopted, as there would be no repugnancy. with reference to sub-sec. (8) of section 10 of the act introduced by act 45 of 1982 it is submitted that a proceeding before the labour court, criminal court, national tribunal in relation to an industrial dispute, does not lapse merely on the reason of death of party, being a workman. reference is also made to section 18 of the act which deals with persons on whom settlement and awards arc prescribed to be binding. mr. s.p, misra, learned counsel for opp. parties 1 and 2 however, submits that position is different so far as 'employer' is concerned. according to him had it been legislative intent, sub-section (6) of section 10 would have provided for both the workman and employer, and not workman alone.4. it is necessary to take note of view expressed by apex court in rameshwar manjhi (deceased) through his son lakhiram manjhi v. management of sangramgarh colliery adn ors. , air 1994 sc 1176. it was observed that on the death of a workman, liis heirs and legal representatives can continue the reference or an application under sec.33c(2) of the act, before the tribunal/labour court. even when the reference is of an individual dispute under sec.24 of me act, on the death of workman the tribunal does not become functus officio, and the reference does not abate merely because pending adjudication the workman concerned died. it is open to the heirs and legal representative of the deceased workman to have the matter agitated and decided. decision of this court in haramani naik's case (supra) was specifically overruled, being not in the line with the view expressed by apex court. the scope of adjudication by the tribunal under the act is wider than determination of legal rights of parties involved of redressing grievance of an aggrieved workman in accordance with law. adjudication by the act is only an alternative form of settlement of industrial disputes on a fair and just basis. the primary duty of industrial tribunal or labour court, as the case may be, is to establish peace in the industry between employer and workman. any unfair action by the management even against an individual worker might cast its shadow on the general body of the workers who might get perturbed by such action. a resolution of the dispute might then become necessary for industrial peace not with standing death of the workman concerned pending proceeding. essential object of enacting the act is to provide recourse to a given form of procedure for settlement of disputes in the interest of maintenance of peaceful relations between the parties without apparent conflicts such as are likely to interrupt activities of the industry proceedings before the labour court or the industrial tribunal under the act cannot be stated to be (sic) a personal action in torts in a civil court which would come to an end with the, death of the aggrieved party to the dispute. even in respect of ordinary judicial proceedings the death of party to the proceedings does not terminate the action in all cases. procedure which aims at furthering ends of justice cannot be faulted unless it is repugnant to any specific provision of a statute. in henry jm. kandall v. patter macilton 4 appeal cases 504, lord panzence laid down the following principle.'procedure, is but the machinery of the law all the channel and means whereby law is administered and justice reached. it strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve.'procedure is something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. it is designed for furtherance of justice, and not frustrate it. by permitting substitution of the deceased workman or an employer, as the case may be, in a proceeding under section 33c(2) of the act the ends of justice shall be furthered. we are therefore, of the view that substitution is permissible in proceeding under section 33c(2) of the act, in case of death of workman or employer. it is stated that matter has been settled out of court by the parties. memorandums to that effect have been filed in this court. the labour court, therefore, need not proceed further, which it would have been required to do in view of our conclusion on the substitution aspect.5. the writ application is disposed of accordingly . no costs.p.c.naik, j.i agree.