AI Drafter 
TaxTMI 
TaxTMI 
2017 (3) TMI 1190
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.... Labour Union vs M/s Indo French Time Industries Ltd. 2002 (2) Mah. L. J. 405 3. Before we proceed further, it would be apposite to set out a few facts. By this Company Petition filed under section 439 of the Companies Act, 1956, the Petitioner seeks winding up of the Respondent Company on the ground that it is unable to pay its debts. The Petitioner was an employee of the Respondent Company and was initially appointed as the Regional Sales Manager and thereafter as the Manager, Key-Accounts and Trade Marketing, with effect from 1st October, 2007. It is the Petitioner's case that since October 2009 till he resigned in March 2012, his entire salary was outstanding. It is in this light that the Petitioner issued a statutory notice under section 434 of the Companies Act, 1956 dated 21st February, 2014 calling upon the Respondent Company to pay his dues, failing which winding up proceedings would be initiated. Since no payment came forth, the Petitioner approached this Court claiming that the Company is indebted to him in the sum of Rs. 39,51,558/- and filed the present Company Petition. 4. This Company Petition for winding up of the Respondent Company was resisted by it on s....
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....s creditors, the learned Judge hearing this Company Petition was of the view that this issue required reconsideration by a Larger Bench. In these circumstances, the learned Single Judge directed the Registry to place the papers of these proceedings before the Hon'ble Chief Justice in order to enable the Hon'ble Chief Justice to constitute a Larger Bench for answering the question set out by us earlier. This matter has therefore been assigned by the Hon'ble Chief Justice to our Bench to answer the aforesaid question. 7. When this matter was first placed before us on 22nd February 2017, we brought to the notice of the learned counsel that the judgment of the learned Single Judge in the case of Mumbai Labour Union 2002 (2) Mah. L. J. 405 has already been overruled by a Division Bench of this Court at Nagpur in the case of Khandelwal Tube Mill Kamgar Sangh, Kanhan v/s Government of Maharashtra and others. 2006 (I) CLR 51 This decision was rendered in Writ Petition No.2243 of 2005 decided on 11th August, 2005. On a perusal of this decision, it is clear that a workman or an individual employee, being a creditor within the meaning of the relevant statutory provisi....
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....the Company is deemed to be unable to pay its debts. 9. Section 439 of the Companies Act, 1956 deals with the provisions as to applications for winding up and inter alia sets out the persons who can file a Petition for winding up of a Company. Section 439 reads as under:- "439. Provisions as to applications for winding up.-(1) An application to the Tribunal for the winding up of a company shall be by petition presented, subject to the provisions of this section- (a) by the company; or (b) by any creditor or creditors, including any contingent or prospective creditor or creditors; or (c) by any contributory or contributories; or (d) by all or any of the parties specified in clauses (a), (b) and (c), whether together or separately; or (e) by the Registrar; or (f) in a case falling under Section 243, by any person authorised by the Central Government in that behalf; (g) in a case falling under clause (h) of Section 433, by the Central Government or a State Government. (2) A secured creditor, the holder of any debentures (including debenture stock), whether or not any trustee or trustees have been appointed in respect of such and other like debentures, and....
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....8) Before a petition for winding up a company presented by a contingent or prospective creditor is admitted, the leave of the6 [Tribunal] shall be obtained for the admission of the petition and such leave shall not be granted- (a) unless, in the opinion of the7 [Tribunal], there is a prima facie case for winding up the company; and (b) until such security for costs has been given as the8 [Tribunal] thinks reasonable." 10. In so far as we are concerned, what we have to decide is whether a winding up Petition filed by a Trade Union would fall within any of the categories set out in section 439. If we answer the same is in the affirmative, then there can be no doubt that a winding up Petition would be maintainable at the instance of the Trade Union. 11. Having set out the relevant provisions of the Companies Act 1956, we would now turn our attention to a few provisions of the Trade Unions Act, 1926. It is an Act to provide for registration of Trade Unions and in certain respects to define the law relating to registered Trade Unions. The words 'Registered Trade Unions' have been defined in section 2(e) to mean a Trade Union registered under the Trade Unions Act, 192....
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....to members of their dependants on account of death, old age, sickness, accidents or unemployment of such members; (g) the issue of, or the undertaking of liability under, policies of assurance on the lives of members, or under policies insuring members against sickness, accident or unemployment; (h) the provision of educational, social or religious benefits for members (including the payment of the expenses of funeral or religious ceremonies for deceased members) or for the dependants of members; (i) the upkeep of a periodical published mainly for the purpose of discussing questions affecting employers or workmen as such; (j) the payment, in furtherance of any of the objects on which the general funds of the Trade Union may be spent, of contributions to any cause intended to benefit workmen in general, provided that the expenditure in respect of such contributions in any financial year shall not at any time during that year be in excess of one-fourth of the combined total of the gross income which has up to that time accrued to the general funds of the Trade Union during that year and of the balance at the credit of those funds at the commencement of that year; and (....