Leave from the High Court is required for judicial proceedings against a company under creditors' voluntary winding up, ensuring compliance with statutory provisions.

[1] This was an application brought by 2nd and 3rd applicants pursuant to O 53 of the Rules of the High , 1980 (RHC) to quash the Interim Award No 1337 of 2011 issued on 13 September 2011 by the learned Chairman (Chairman) of the Industrial Court (IC) in Industrial Court Case No 18/4-153/11.

[2] The 2nd respondent had lodged a representation under s 20(1) of the Industrial Relations Act, 1967 (IR Act) that he had been dismissed on 9 October 2008 by Isuta International Sdn Bhd (the 1st applicant) without just cause and excuse. The Honourable Minister of Human Resources had on 25 October 2010 referred the representation to IC for an award under s 20(3) of the IR Act.

[3] On 17 June 2010 however, the 1st applicant had resolved to be wound up by way of a Creditors' Voluntary Winding Up process and the 2nd and 3rd applicants were appointed on the same day to be the liquidators of the 1st applicant.

[4] Upon being notified by IC of the proceedings against the 1st applicant, the 2nd and 3rd applicants brought to the attention of the IC, the restrictions pursuant to s 263(2) of the Companies Act, 1965 (COA), namely that after the commencement of the winding up, no action or proceedings shall be proceeded with or commenced against the company except by leave of the High Court, and subject to such terms as may be imposed by the High Court.

[5] The IC appeared not to agree and took the position that no 'leave' was required from the High Court and proceeded to refix the matter for mentions on 13 June 2011.

[6] On 31 May 2011, the 2nd respondent applied to add or join the 2nd and 3rd applicants,(the liquidators of the 1st applicant), as further parties (respondents) in the IC case. The IC on 25 August 2011 went on to the hear the 2nd respondent's application in presence of counsel for all parties, and vide the Interim Award of the 13 September 2011 referred above, proceeded to add the 2nd and 3rd applicants as further parties in the IC case.

[7] The Chairman in the Interim Award further stated that the 2nd and 3rd applicants were being added as additional respondents in the IC case in their 'official capacity' and not in their 'personal capacity'.

Interim Award

[8] The Chairman in ruling that 'leave' was not required in this case to further progress the IC case (including the 2nd respondent's application to add further parties) referred to the decisions on that point made by the Industrial Court in the following cases:

(a) TT Electrical Electronics Corporation (M) Sdn Bhd v. Yong Peng Kean; [2005] 2 ILR 169 ;

(b) Desaru Impian Resort v. Malkit Singh Ram Singh ; [2003] 2 ILR 474 ; and

(c) DNT (M) Sdn Bhd v. Zamri Said; [2002] 2 ILR 240.

(There cases relied on by the Chairman are discussed later down in this decision.)

[9] In respect of the joinder (of party) issue, the Chairman referred to the Indian Supreme Court decision in Hochtief Gammon, Appelant v. Industrial Tribunal , Bhubaneshwar, Orissa & Others, Respondents AIR [1964] SC 1746 (V51 C242), where it was opined that being a 'Tribunal', the forum in question, like the IC here in our case, could direct other persons to be joined as would be necessary to represent the interest of either the employer or the employee, if the named parties could not represent completely or adequately the employer or employees, as the case may be.

[10] The test spelt out in Hocktief Gammon's case, which was expressed as follows:

"The test for adding other parties must be whether they will make adjudication effective and enforceable."

was applied with approval by ou