act 031 of 1981 : Dalmia Dadri Cement Limited (Acquisition and Transfer of Undertakings) Act, 1981

CHAPTER I

PRELIMINARY

CHAPTER II

ACQUISITION AND TRANSFER OF THE UNDERTAKINGS OF THE COMPANY

CHAPTER III

PAYMENT OF AMOUNTS

CHAPTER IV

MANAGEMENT, ETC., OF THE UNDERTAKINGS OF THE COMPANY

CHAPTER V

PROVISIONS RELATING TO THE EMPLOYEES OF THE COMPANY

CHAPTER VI

COMMISSIONER OF PAYMENTS

CHAPTER VII

MISCELLANEOUS

Section 1.Short title and commencement.

(1) This Act may be called the Dalmia Dadri Cement Limited (Acquisition and Transfer of Undertakings) Act, 1981.

(2) It shall be deemed to have come into force on the 23rd day of June, 1981.

Section 2.Definitions.

In this Act, unless the context otherwise requires,--

(a) "appointed day" means the 23rd day of June, 1981;

(b) "Cement Corporation" means the Cement Corporation of India, a company incorporated and registered under the Companies Act, 1956 (1 of 1956);

(d) "Company" means the Dalmia Dadri Cement Limited, being a company within the meaning of the Companies Act, 1956 (1 of 1956), and having its registered office at Charkhi Dadri (Haryana);

(e) "notification" means a notification published in the Official Gazette;

(f) "prescribed" means prescribed by rules made under this Act;

(g) "specified date", in relation to any provision of this Act, means such date as the Central Government may, by notification, specify for the purposes of that provision, and different dates may be specified for different provisions of this Act;

(h) words and expressions used herein and not defined but defined in the Companies Act, 1956 (1 of 1956), shall have the meanings, respectively, assigned to them in that Act.

Section 3.Transfer to, and vesting in, the Central Government of the undertakings of the Company.

On the appointed day, the undertakings of the Company, and the right, title and interest of the Company in relation to its undertakings, shall, by virtue of this Act, stand transferred to, and vest in, the Central Government.

Section 4.General effect of vesting.

(1) The undertakings of the Company shall be deemed to include all assets, rights, lease-holds, powers, authorities and privileges, and all property, movable and immovable, including lands, buildings, workshops, stores, instruments, machinery and equipment, cash balances, cash on hand, reserve funds, investments, book debts and all other rights and interests in, or arising out of, such property as were immediately before the appointed day in the ownership, possession, power or control of the Company, whether within or outside India, and all books of account, registers and all other documents of whatever nature relating thereto.

(2) All properties as aforesaid which have vested in the Central Government under section 3 shall, by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting them, and any attachment, injunction, decree or order of any court restricting the use of such properties in any manner shall be deemed to have been withdrawn.

(3) Every mortgagee of any property which has vested under this Act in the Central Government and every person holding any charge, lien or other interest in, or in relation to, any such property, shall give, within such time and in such manner as may be prescribed, an intimation to the Commissioner of such mortgage, charge, lien or other interest.

(4) For the removal of doubts, it is hereby declared that the mortgagee of any property referred to in sub-section (3) or any other person holding any charge, lien or other interest in, or in relation to, any such property shall be entitled to claim, in accordance with his rights and interests, payment of the mortgage money or other dues, in whole or in part, out of the amount specified in section 7 and also out of the amount determined under section 8, but no such mortgage, charge, lien or other interest shall be enforceable against any property which has vested in the Central Government.

(5) Any licence or other instrument granted to the Company in relation to any undertaking which has vested in the Central Government under section 3, at any time before the appointed day and in force immediately before that day, shall continue to be in force on and after such day in accordance with its tenor in relation to, and for the purposes of, such undertaking and on and from the day of vesting of such undertaking under section 6 in the Cement Corporation, that Corporation shall be deemed to be substituted in such licence or other instrument as if such licence or other instrument had been granted to the Cement Corporation and that Corporation shall hold it for the remainder of the period for which that Company would have held it under the terms thereof.

(6) If, on the appointed day, any suit, appeal or other proceeding of wherever nature in relation to any property which has vested in the Central Government, under section 3, instituted or preferred by or against the Company is pending, the same shall not abate, be discontinued or be, in any way, prejudicially affected by reason of the transfer of the undertakings of the Company or of anything contained in this Act, but the suit, appeal or other proceeding may be continued, prosecuted or enforced by or against the Central Government, or, where the undertakings of the Company are directed under section 6 to vest in the Cement Corporation, by or against that Corporation.

Section 5.Central Government or Cement Corporation not to be liable for prior liabilities.

(1) Every liability of the Company in respect of any period prior to the appointed day, shall be the liability of the Company and shall be enforceable against it and not against the Central Government, or, where the undertakings of the Company are directed under section 6 to vest in the Cement Corporation, against that Corporation.

(2) For the removal of doubts, it is hereby declared that,--

(a) save as otherwise expressly provided in this section or in any other provision of this Act, no liability of the Company in respect of any period prior to the appointed day, shall be enforceable against the Central Government, or where the undertakings of the Company are directed under section 6 to vest in the Cement Corporation, against that Corporation;

(b) no award, decree or order of any court, tribunal or other authority in relation to the undertakings of the Company, passed after the appointed day, in respect of any matter, claim or dispute which arose before that day, shall be enforceable against the Central Government, or, where the undertakings of the Company are directed under section 6 to vest in the Cement Corporation, against that Corporation;

(c) no liability incurred by the Company before the appointed day, for the contravention of a provision of any law for the time being in force, shall be enforceable against the Central Government, or, where the undertakings of the Company are directed under section 6 to vest in the Cement Corporation, against that Corporation.

Section 6.Power of Central Government to direct vesting of the undertakings of the Company in Cement Corporation.

(1) Notwithstanding anything contained in sections 3 and 4, the Central Government may, subject to such terms and conditions as it may think fit to impose, direct, by notification, that the undertakings of the Company, and the right, title and interest of the Company in relation to its undertakings, which have vested in the Central Government under section 3, shall, instead of continuing to vest in the Central Government, vest in the Cement Corporation either on the date of the notification or on such earlier or later date (not being a date earlier than the appointed day) as may be specified in the notification.

(2) Where the right, title and interest of the Company, in relation to its undertakings, vest in the Cement Corporation under sub-section (1), the Cement Corporation shall, on and from the date of such vesting, be deemed to have become the owner in relation to such undertakings, and all the rights and liabilities of the Central Government in relation to such undertakings shall, on and from the date of such vesting, be deemed to have become the rights and liabilities of the Cement Corporation.

Section 7.Payment of amount.

For the transfer to, and vesting in, the Central Government, under section 3, of the undertakings of the Company and the right, title and interest of the Company in relation to its undertakings, there shall be paid by the central Government to the Company, in cash, and in the manner specified in Chapter VI, an amount of rupees eighty-four lakhs and eighty-seven thousand.

Section 8.Payment of further amount.

(1) The amount specified in section 7 shall carry simple interest at the rate of four per cent. per annum for the period commencing on the appointed day and ending on the date on which payment of such amount is made by the Central Government to the Commissioner.

(2) The amount determined in accordance with the provisions of sub-section (1) shall be paid by the Central Government to the Company in addition to the amount specified in section 7.

(3) For the removal of doubts, it is hereby declared that the liabilities of the Company in relation to its undertakings which have vested in the Central Government under section 3, shall be discharged from the amount referred to in section 7, and also from the amount determined under sub-section (1) in accordance with the rights and interests of the creditors of the Company.

Section 9.Management, etc., of the undertakings of the Company.

The general superintendence, direction, control and management of the affairs and business of the undertakings of the Company, the right, title and interest in relation to which have vested in the Central Government under section 3, shall, where a direction has been made by the Central Government under sub-section (1) of section 6, vest in the Cement Corporation, and thereupon the Cement Corporation shall be entitled to exercise, to the exclusion of all other persons, all such powers and do all such things as the Company was authorised to exercise and ¹ [do in relation to its undertakings, including the power to dispose off the assets of the undertakings of the Company vested upon it, by the notification of the Government of India, in the Ministry of Industry (Department of Industrial Development) number S.O. 502(E), dated the 23rd June, 1981, under sub-section (1) of section 6, if such disposal of the assets is considered necessary by the Cement Corporation due to legal or financial considerations].

1. Subs. by Act 3 of 2007, s. 2, for "do in relation to its undertakings" (w.e.f. 29-12-2006).

Section 10.Duty to deliver possession of the undertakings of the Company and documents relating thereto.

(1) Notwithstanding any judgment, decree or order of any court, tribunal or other authority or anything contained in any law for the time being in force, the Official Liquidator of the Company or any other person, in whose possession or custody or under whose control the undertakings of the Company or any part thereof may be, shall forthwith deliver possession of the undertakings of the Company or any part thereof to the Central Government, or where the undertakings of the Company are vested under section 6 in the Cement Corporation, to that Corporation.

(2) On the vesting of the management of the undertakings of the Company in the Cement Corporation, the Official Liquidator of the Company or any other person who has, on the appointed day, in his possession or custody or under his control any books, documents or other papers relating to the undertakings of the Company immediately before such vesting or appointment, shall be bound to deliver the said books, documents or other papers to the Cement Corporation or to such person as the Central Government or the Cement Corporation, as the case may be, may specify in this behalf.

(3) The Central Government may take or cause to be taken all necessary steps for securing possession of the undertakings which have vested in it under section 3.

(4) The Central Government may issue such directions as it may deem desirable in the circumstances of the case to the Cement Corporation and that Corporation may also, if it is considered necessary so to do, apply to the Central Government at any time for instructions as to the manner in which the management of the undertakings of the Company shall be conducted or in relation to any other matter arising in the course of such management

Section 11.Duty to furnish particulars.

(1) The Company shall, within such period as the Central Government may allow in this behalf, furnish to that Government or to the Cement Corporation a complete inventory of all the properties and assets of the Company as on the appointed day pertaining to the undertakings which have vested in the Central Government or the Cement Corporation, as the case may be.

(2) So much of the obligation of the Company, under sub-section (1) as relates to the properties and assets of the Company in the possession, custody or control of the Official Liquidator of the Company shall be discharged by him.

Section 12.Employment of certain employees to continue.

(1) Every person who has been, immediately before the appointed day, employed in any of the undertakings of the Company shall become,--

(a) on and from the appointed day, an employee of the Central Government; and

(b) where the undertakings of the Company are directed under sub-section (1) of section 6, to vest in the Cement Corporation, an employee of that Corporation on and from the date of such vesting,

and shall hold office or service under the Central Government or the Cement Corporation, as the case may be, with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to him if there had been no such vesting and shall continue to do so unless and until his employment under the Central Government or the Cement Corporation, as the case may be, is duly terminated or until his remuneration and other conditions of service are duly altered by the Central Government or the Cement Corporation, as the case may be.

(2) Notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947), or in any other law for the time being in force, the transfer of the services of any officer or other person employed in any undertaking of the Company to the Central Government or the Cement Corporation shall not entitle such officer or other employee to any compensation under this Act or under any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority

(3) Where, under the terms of any contract of service or otherwise, any person, whose services become transferred to the Central Government or the Cement Corporation by reason of the provisions of this Act, is entitled to any arrears of salary or wages or any payments for any leave not availed of or any other payment, not being payment by way of gratuity or pension, such person may enforce his claim against the Company, but not against the Central Government or the Cement Corporation.

Section 13.Provident fund and other funds.

(1) Where the Company has established a provided fund, superannuation fund, welfare fund or any other fund for the benefit of the persons employed in any of the undertakings of the Company, the monies relatable to the officers or other employees, whose services have become transferred, by or under this Act, to the Central Government or the Cement Corporation, shall, out of the monies standing, on the appointed day, to the credit of such provident fund, superannuation fund, welfare fund or other fund, stand transferred to, and vest in, the Central Government or the Cement Corporation, as the case may be.

(2) The monies which stand transferred under sub-section (1) to the Central Government or the Cement Corporation, as the case may be, shall be dealt with by that Government or that Corporation in such manner as may be prescribed.

Section 14.Appointment of Commissioner of Payments.

(1) The Central Government shall, for the purpose of disbursing the amounts payable to the Company under section 7 and section 8, by notification, appoint a Commissioner of Payments.

(2) The Central Government may appoint such other persons as it may think fit to assist the Commissioner and thereupon the Commissioner may authorise one or more of such persons also to exercise all or any of the powers exercisable by him under this Act and different persons may be authorised to exercise different powers.

(3) Any person authorised by the Commissioner to exercise any of the powers exercisable by the Commissioner may exercise those powers in the same manner and with the same effect as if they have been conferred on that person directly by this Act and not by way of authorisation.

(4) The salaries and allowances of the Commissioner and other persons appointed under this section shall be defrayed out of the Consolidated Fund of India

Section 15.Payment by the Central Government to the Commissioner.

(1) The Central Government shall, within thirty days from the specified date, pay, in cash, to the Commissioner, for payment to the Company,--

(a) an amount equal to the amount specified in section 7, and

(b) an amount equal to the amount payable to the Company under section 8.

(2) A deposit account shall be opened by the Central Government in favour of the Commissioner in the Public Account of India, and every amount paid under this Act to the Commissioner shall be deposited by him to the credit of the said deposit account and the said deposit account shall be operated by the Commissioner.

(3) Records shall be maintained by the Commissioner in respect of the undertakings of the Company in relation to which payment has been made to him under this Act.

(4) The interest accruing on the amount standing to the credit of the deposit account referred to in sub-section (2) shall enure to the benefit of the Company

Section 16.Certain powers of the Central Government or Cement Corporation.

(1) The Central Government or the Cement Corporation, as the case may be, shall be entitled to receive up to the specified date to the exclusion of all other persons, any money due to the Company, in relation to its undertakings which have vested in the Central Government or the Cement Corporation and realised after the appointed day, notwithstanding that the realisation pertains to a period prior to the appointed day.

(2) The Central Government or the Cement Corporation, as the ease may be, may make a claim to the Commissioner with regard to every payment made by it after the appointed day for discharging any liability of the Company in relation to any period prior to the appointed day; and every such claim shall have priority in accordance with the priorities attaching, under this Act, to the matter in relation to which such liability has been discharged by the Central Government or the Cement Corporation.

(3) Save as otherwise provided in this Act, the liabilities of the Company in respect of any transaction prior to the appointed day, which have not been discharged on or before the specified date, shall be the liabilities of the Company

Section 17.Claims to be made to the Commissioner.

Every person having a claim against the Company shall prefer such claim before the Commissioner within thirty days from the specified date:

Provided that if the Commissioner is satisfied that the claimant was prevented by sufficient cause from preferring the claim within the said period of thirty days, he may entertain the claim within a further period of thirty days and not thereafter.

Section 18.Priority of claims.

The claims arising out of the matters specified in the Schedule shall have priorities in accordance with the following principles, namely:--

(a) Category I shall have precedence over all other categories and Category II shall have precedence over Category III, and so on;

(b) the claims specified in each of the categories shall rank equally and be paid in full, but, if the amount is insufficient to meet such claims in full, they shall abate in equal proportions and be paid accordingly; and

(c) the question of discharging any liability with regard to a matter specified in a lower category shall arise only if a surplus is left after meeting all the liabilities specified in the immediately higher category.

Section 19.Examination of claims.

(1) On receipt of the claims made under section 17, the Commissioner shall arrange the claims in the order of priorities specified in the Schedule and examine the same in accordance with such order of priorities.

(2) If, on examination of the claims, the Commissioner is of opinion that the amount paid to him under this Act is not sufficient to meet the liabilities specified in any lower category, he shall not be required to examine the claims in respect of such lower category.

Section 20.Admission or rejection of claims.

(1) After examining the claims with reference to the priorities set out in the Schedule, the Commissioner shall fix a certain date on or before which every claimant shall file the proof of his claim.

(2) Not less than fourteen days' notice of the date so fixed shall be given by advertisement in one issue of any daily newspaper in the English language having circulation in the major part of the country and one issue of any daily newspaper in such regional language as the Commissioner may consider suitable, and every such notice shall call upon the claimant to file the proof of his claim with the Commissioner within the period specified in the advertisement.

(3) Every claimant who fails to file the proof of his claim within the time specified by the Commissioner shall be excluded from the disbursements made by the Commissioner.

(4) The Commissioner shall, after such investigation as may, in his opinion, be necessary and after giving the Company an opportunity of refuting the claim and after giving the claimant a reasonable opportunity of being heard, by order in writing, admit or reject the claim in whole or in part.

(5) The Commissioner shall have the power to regulate his own procedure in all matters arising out of the discharge of his functions, including the place or places at which he may hold his sittings and shall, for the purpose of making an investigation under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:--

(a) the summoning and enforcing the attendance of any witness and examining him on oath;

(b) the discovery and production of any document or other material object producible as evidence;

(d) the issuing of any commission for the examination of witnesses.

(6) Any investigation before the Commissioner shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Commissioner shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 ( 2 of 1974 ).

(7) A claimant, who is dissatisfied with the decision of the Commissioner, may prefer an appeal against the decision to the principal civil court of original jurisdiction within the local limits of whose jurisdiction the registered office of the Company is situated:

Provided that where a person who is a Judge of a High Court is appointed to be the Commissioner, the appeal shall lie to the High Court of Punjab and Haryana and such appeal shall be heard and disposed of by not less than two Judges of that High Court.

Section 21.Disbursement of money by the Commissioner to claimants.

After admitting a claim under this Act, the amount due in respect of such claim shall be paid by the Commissioner to the person or persons to whom such amount is due, and, on such payment, the liability of the Company in respect of any claim relating to the undertakings of the Company shall stand discharged.

Section 22.Disbursement of amounts to the Company.

(1) If, out of the monies paid to him in relation to the undertakings of the Company, there is a balance left after meeting the liabilities as specified in the Schedule, the Commissioner shall disburse such balance to the Company.

(2) Where the possession of any machinery, equipment or other property, has vested in the Central Government or the Cement Corporation under this Act, but such machinery, equipment or other property does not belong to the Company, it shall be lawful for the Central Government or the Cement Corporation to continue to possess such machinery or equipment or other property on the same terms and conditions under which it was possessed by the Company immediately before the appointed day

Section 23.Undisbursed or unclaimed amount to be deposited to the general revenue account.

Any money paid to the Commissioner which remains undisbursed or unclaimed on the date immediately preceding the date on which the office of the Commissioner is finally wound up, shall be transferred by the Commissioner, before his office is finally wound up, to the general revenue account of the Central Government; but a claim to any money so transferred may be preferred to the Central Government by the person entitled to such payment and shall be dealt with as if such transfer had not been made, and the order, in any, for payment of the claim, being treated as an order for the refund of revenue.

Section 24.Act to have overriding effect.

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any court, tribunal or other authority.

Section 25.Contracts to cease to have effect unless ratified by Central Government or Cement Corporation.

Every contract entered into by the Company in relation to its undertakings, which has vested in the Central Government under section 3, for any service, sale or supply and in force immediately before the appointed day, shall, on and from the expiry of one hundred and eighty days from the appointed day, cease to have effect unless such contract is, before the expiry of that period, ratified, in writing, by the Central Government or the Cement Corporation, where such undertakings have been vested in that Corporation under this Act, and in ratifying such contract, the Central Government or the Cement Corporation may make such alteration or modification therein as it may think fit:

Provided that the Central Government or the Cement Corporation shall not omit to ratify contract and shall not make any alteration or modification in a contract--

(a) unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to the interests of the Central Government or the Cement Corporation, and

(b) except after giving to the parties to the contract a reasonable opportunity of being heard and except after recording in writing its reasons for refusal to ratify the contract or for making any alteration or modification therein.

Section 26.Protection of action taken in good faith.

(1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer or other employee of that Government or the Cement Corporation or other person authorised by that Government or Corporation for anything which is in good faith done or intended to be done under this Act.

(2) No suit or other legal proceeding shall lie against the Central Government or any officer or other employee of that Government or the Cement Corporation or other person authorised by that Government or Corporation for any damage caused or likely to be caused by anything which is in good faith done or intended to be done.

Section 27.Delegation of Powers.

(1) The Central Government may, by notification, direct that all or any of the powers exercisable by it under this Act, other than the powers conferred by this section, section 30 and section 31, may also be exercised by such person or persons as may be specified in the notification.

(2) Whenever any delegation of power is made under sub-section (1), the person to whom such power has been delegated shall act under the direction, control and supervision of the Central Government.

Section 28.Penalties.

Any person who,--

(a) having in his possession, custody or control any property forming part of any undertakings of the Company, wrongfully withholds such property from the Central Government or the Cement Corporation; or

(b) wrongfully obtains possession of, or retains, any property forming part of, the undertakings of the Company; or

(c) wilfully withholds or fails to furnish to the Central Government or the Cement Corporation or to any person or body of persons specified by that Government or the Cement Corporation, as the case may be, any document or inventory relating to the undertakings of the Company, which may be in his possession, custody or control; or

(d) fails to deliver to the Central Government or the Cement Corporation or to any person or body of persons specified by that Government or the Cement Corporation, any assets, books of account, registers or other documents in his possession, custody or control relating to the undertakings of the Company;, or

(e) wrongfully removes or destroys any property forming part of the undertakings of the Company; or

(f) prefers any claim under this Act which he knows or has reasonable cause to believe to be false or grossly inaccurate,

shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to ten thousand rupees, or with both.

Section 29.Offences by companies.

(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company, for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section,--

(a) "company" means any body corporate and includes a firm or other association of individuals;

(b) "director", in relation to a firm, means a partner in the firm

Section 30.Power to make rules.

(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

(a) the time within which, and the manner in which, an intimation shall be given to the Commissioner under sub-section (3) of section 4;

(b) the manner in which the monies in any provident fund or other fund under section 13 shall be dealt with;

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 31.Power to remove difficulties.

If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, not inconsistent with the provisions of this Act, remove the difficulty:

Provided that no such order shall be made after the expiry of a period of two years from the appointed day

Section 32.Repeal and saving.

(1) The Dalmia Dadri Cement Limited (Acquisition and Transfer of Undertakings) Ordinance, 1981 (6 of 1981), is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.