My Complain to Hon'ble CJI, SC, Bar Council, Ministry of Law & President, NCLT, against a defamatory and malicious Order passed by the NCLT, Kolkata

My Complain to Hon'ble CJI, India, Bar Council, Ministry of Law and President, NCLT, New Delhi against a defamatory and malicious Order passed by the the NCLT, Kolkata Bench mentioning my name without authority,

02/11/2019

To

The President

NCLT, New Delhi.

Sub: Direction for deletion of my name from the Order dated 30/10/2019 passed by the ld. Members K R Jenan and Harish Chandra Suri in C.P. (IB) No.701/KB/2017 of NCLT, Kolkata, Bench I, being without jurisdiction, in gross infringement of natural justice, defamatory, derogatory, malicious and with potential to lower my professional and social standing.

Dear Sir,

I, A K Shrivastava, am a counsel in the aforementioned case on behalf of the 284 workmen and have been appearing since its inception before the Hon’ble NCLT, Kolkata. The case has a chequered history as it has gone twice to Hon’ble NCLAT in Appeal, already and also before the Hon’ble Supreme Court once. It is on record that I have appeared before all the authorities including in related matters before the Hon’ble High Courts.

I have no intention at all to advertise my charitable conduct or pat my own back but given the gravity of situation I am disclosing this that my team and I have been rendering our services to the Workmen of M/s Tayo Rolls Ltd. without charging any fee from the Workmen who have not been paid their dues by the M/s Tayo Rolls Ltd. and the Tata Steel for the last 3 years starting from 01/10/2016 when the M/s Tayo Rolls Ltd. closed its factory and its operations despite an Order against it passed by the ld. Appropriate Authority, Labour, Employment and Training, Government of Jharkhand under Section 25(O) of the Industrial Disputes Act, 1947 dated 27/10/2016 rejecting an Application filed by the M/s Tayo Rolls Ltd. to close its factory.

M/s Tayo Rolls Ltd. filed an Application u/s 10 of the IBC before the Hon’ble NCLT, Kolkata when I was approached by the Workmen to intervene on their behalf in that Application and also in their own Application filed u/s 9 of the IBC in the month of October, 2017.

It is a known fact that TATAS have neither been an ethical employer nor an ethical litigant before the Indian Courts. Unfortunately, yours truly has personal knowledge of more than 100 such issues. Zamindari got abolished in the year 1956 but TATAS maintained a zamindari office in the Deputy Commissioner’s office at Jamshedpur till 1988. Despite an Order of the Hon’ble Supreme Court in 1989 in Jawaharlal Sharma vs. TISCO case for constitution of Municipal Corporation at Jamshedpur the same has not been constituted till date for unethical and unwarranted litigation protracted by the TATAS. They have no qualms in making misleading and false statements before the Courts including the Hon’ble Supreme Court. Authorities like (2015) 15 SCC 55 and (2018) 12 SCC (107) and several other cases are testimonies of their unethical conduct. On 14th October, 1993 when a prominent trade union leader of Jamshedpur Late V G Gopal having all India standing was murdered at Jamshedpur the entire management people of the TATAS were in dock. Hence, when the matter was brought to me in 2017 by the Workmen, my well wishers advised me not to take up the case given the life risk and other risk factors as are apparent now. However, given the hapless conditions of the Workmen I could not say no and agreed to appear in their cases.

It is obvious, that the Court orders were not as per the likings of the TATAS and thereafter, they changed their strategy and decided to target me personally by all means. It may be noted that the M/s Tayo Rolls Ltd. filed a Writ Petition (WP 6690 of 2016) against the order of the ld. Appropriate Authority, Labour, Employment and Training, Government of Jharkhand passed under Section 25(O) of the Industrial Disputes Act, 1947 dated 27/10/2016 before the Hon’ble High Court, Ranchi and two other writs WP 671 and 927 both of 2018 against he proceedings started by the Workmen under Payment of Wages Act, 1936 and under Section 33 of Industrial Disputes Act, 1947 for the recovery of their dues from the TATAS.

The Order dated 27/10/2016 passed by ld. Appropriate Authority, Labour, Employment and Training, Government of Jharkhand under Section 25(O) of the Industrial Disputes Act, 1947 was valid for only one year however, the proceeding continued for more than 3 long years and the TATAS took advantage of the same before the lower courts where proceedings were going on against the them initiated by the Workmen.

Finally, on 19/08/2019 the same was heard by the Hon’ble High Court, Ranchi and the same got dismissed on the ground of the said Order being stale and no more existence on that date. After this Order the Counsel of the TATAS was supposed to lead his arguments in the next two related matters in WP 671 and 927 both of 2018, however, to my shock, he referred my private activity on social media and created an unpleasant scene in the Court and finally impliedly accused the Hon’ble Court to be supporting my case. The Hon’ble Justice expressed his complete displeasure and dismay on his conduct however, given the allegation on him he immediately passed Orders referring the same to the Hon’ble Chief Justice of the Hon’ble Ranchi High Court to be listed before some other Bench. It is needless to mention that I was only counsel in those mattes and not a litigant. As a citizen of this country I have my own fundamental rights to express my disagreement to a political issue or even a judicial order. Further, the Hon’ble Court had jurisdiction to initiate a contempt proceeding against me if at all I misconduct against the Hon’bl Court. Copies of the two Orders in all the three writ petitions are enclosed hereto and marked collectively as Annexure A.

The ld. members of the Hon’ble NCLT, Kolkata Bench observes the following at para 21 and 33 of the aforesaid Order dated 30/10/2019,

“21. It is further submitted that the Workers led by One Mr. Akhilesh Kumar Shrivastava have intimidated the RP on various occasions such as on 6th May, 2019 within the premises of Hon’ble NCLT, Kolkata Bench and also on 27th July, 2019 at the 5th meeting of CoC. These are matters of record and further evidence can also be adduced. It is submitted that Mr. Shrivastava has been writing derogatory and defamatory posts on websites and social media about the RP, Hon’ble Members of NCLT, NCLAT and entire judicial system of the country.”

“33. Before parting with this case, we are unable to reconcile with the way the Applicants have dealt with the Resolution Professional who is a lady professional, and in her reply to the applications has made serious allegations against the Workers led by Mr. Akhilesh Kumar Shrivastava, Advocate who are stated to have intimidated her on more than two occasions.”

Copy of the said Order is enclosed and marked as Annexure B.

The first issue I raise that inasmuch as I was not a party in the said Petition and merely a counsel appearing on behalf of the Workmen how the same could have been part of the said Order when I had no occasion to defend myself. This was not only beyond the jurisdiction of the Hon’ble Bench but also highly unwarranted by the facts and circumstances of the case. The Hon’ble Bench didn’t even allow the Workmen to defend themselves and made defamatory and malicious observations without any evidence designed to lower my professional and social standing.

I affirm that before I saw that lady one CA Vinita Agarwal at NCLT in this case after her appointment I had not even heard her name much less knowing her and hence any allegation of interacting with her was out of question much less intimidating her in the NCLT premise. Further, I have never led the Workmen before her whenever she had been at Jamshedpur in the registered office of the M/s Tayo Rolls Limited during the tenure of her continuation as IRP/RP of the said company as I practice at Kolkata. I do have an office at Jamshedpur looked after by professionals where I go only on Saturdays if my schedule permits. Out of the 6 meetings only one got held on Saturday and that was on my request and the same was the purported 5th CoC Meeting held on 27/07/2019 at Jamshedpur at the Registered Office of the M/s Tayo Rolls Ltd.

Be it noted that I was requested by the Workmen to attend that meeting on their behalf by displaying one “Evaluation Matrix” attached in the notice for 5th purported CoC meeting which declared the probability of revival of the M/s Tayo Rolls Ltd at merely 10%, informing further to me that the Workmen purportedly holding 32% voting in the CoC had not authorized the RP, Vinita Agarwal for any such “Evaluation Matrix” nor do they understand anything out of the same.

Be it further noted that I went to the venue alone along with one workman as I had no idea of the address of the M/s Tayo Rolls Ltd. As I tried to enter the main gate of the venue I was asked to show my identity card by the security personnel of TATA STEEL securing that place and also asked to sign a register before I was allowed to go inside the room. The gate was under lock and key and the person who accompanied me to that venue was asked to sit outside throughout my presence there in the meeting. As I entered I was asked by the said RP to sign another paper which I refused. As I had limited role and also time I immediately asked the members of CoC present in the meeting whether they had authorized the RP to enclose that “Evaluation Matrix” declaring 10% probability of revival of the company. Everyone sitting in the meeting expressed their complete ignorance about that document. Then I asked the RP to explain the authority by which she had enclosed that “Evaluation Matrix”, the need for, nature and meaning of that document which she failed to explain. However, I was asked to submit to her command in the meeting which I ignored and asked the members to record my vote on behalf of the Workmen on the Resolution for her removal and appointment of Statutory Auditor as proposed by the Jharkhand Bijli Vitran Nigam Limited and left the Venue. Hence the first allegation that I led the Workmen anywhere before her is blatantly false as there are documents to prove the same and the said documents were prepared by the said RP herself without any influence from Workmen’s side or any other CoC member.

It may further be noted that the said meeting was attended by at least 2 dozen men including two women one of them was the RP herself. During my presence not a single gentleman raised any issue of my purported threat to her or intimidation or misconduct whatsoever, however, the same was pleaded by her before the Hon’ble NCLT and the same got figured in the Order impugned dated 30/10/2019 without any counter from the Workmen’s side, much less my side. The Hon’ble Bench of NCLT even observed “on more than two occasions”, I am afraid that there is not even 2nd occasion and the observations is completely untrue.

It is ironical that the said issue of “Evaluation Matrix” has been dealt by the ld. Members of the Hon’ble NCLT in their Order impugned dated 30/10/2019 at para 14 however, the same was not considered of any value despite the same having serious consequences on the chances of revival of the M/s Tayo Rolls Ltd.

It may further be noted that neither this proceeding would have been necessary nor this unpleasant and outrageous Order was required to be passed by the ld. Members had the Hon’ble NCLT conducted the proceedings properly when the purported “progress reports” were submitted by her before the Hon’ble Bench.

As it was completely known to us that the said RP had connived with the TATAS and were interested in promoting the interests of the TATAS which have a sinister design to misappropriate 350 acres of land belonging to the M/s Tayo Rolls Ltd., and also misappropriate the dues of the various creditors including the Workmen, JBVNL and others leading to the illegal liquidation of the M/s Tayo Rolls Ltd., Jharkhand Bijli Vitran Nigan Limited which was assigned 53% of voting rights and the Workmen at 32% decided thereafter to reject all her Resolutions and as such in all five meetings (fourth was abandoned for want of quorum as we refused to go in that meeting) all her fraudulent resolutions were rejected.

The Workmen were not invited in the first meeting despite RP’s own failure to furnish the PF details and despite the Workmen managing to send their claim before the first meeting of the CoC without the PF figure, citing a purported wrong format by the said RP. So, the Petitioners of Section 9 Application under IBC under which the moratorium was issued by the Hon’ble NCLT vides its Order dated 05/04/2019, was not allowed to attend the first CoC despite the fact that on that day their dues only were the admitted dues. Their claim of Rs.190 Crore calculated as per sub-section 6 of Section 25 of the Industrial Disputes Act, 1947 as the M/s Tayo Rolls Ltd. is a defaulter under that section was reduced to Rs.20 odd Crore without giving any reason whatsoever by the said RP and the said amount was even less by Rs.4 Crore which was admitted (Rs.24 Crore) by the Order dated 05/04/2019 by the Hon’ble NCLT, Kolkata Bench without any demur from the side of M/s Tayo Rolls Ltd. She further declared around 25 employees as discharged with effect from 2018 when the operations of the company is closed from 01/10/2016 illegally and the Workmen have not been paid any single penny from that date, their medical facilities have also been withdrawn. The ld. Members have considered some of the grievances raised but astonishingly found no merit in the same and ignored others for reasons best known to them and have however, completely ignored various communication with the RP on various disputes duly enclosed in the said Application (CA (IB) No.840) filed by the Workmen for her removal.

Had the Hon’ble NCLT examined the 2nd Progress Report or even the Third Progress report there would have been no question of filing three Applications for her removal one each separately by the Workmen and JBVNL and another under Section 27 of the IBC after passing a resolution in the 5th purported CoC Meeting removing the RP. The Hon’ble NCLT received those progress reports as mere post office. Even if the Applications were heard together there was no valid reason to allow the said RP to file counter affidavit against our Applications for her removal or against her removal by CoC and hear the same in a full fledged hearing as the said RP was not a litigating party. As an RP, she was only an officer of the CoC which is now trite law and no excuse can be furnished for such a bizarre hearing. Copy of the 2nd Progress Report is enclosed herewith and marked as Annexure C.

In view of the above I earnestly request your lordship to direct the ld. Members of the Hon’ble NCLT to delete my name from the said Order and pass a fresh Order immediately, failing which I will have no option but to seek intervention of the Higher Court in the matter and also file a criminal defamation case against the said RP.

Sincerely yours,

A K Shrivastava

Advocate

Copy to: 1. CJI, Supreme Court;

2. Bar Council of India,

3. Ministry of Law;