TMI Blog2017 (3) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... ng up Petition as contemplated under section 439 of the said Act. This is for the simple reason that if the workmen have not been paid their wages and/or salary by the Company, they would certainly be a creditor or creditors as contemplated under section 439(1)(b) of the Companies Act, 1956. Section 15 clearly mandates that the Trade Union can take up this cause for and on behalf of its members. Hence, after complying with the provisions of section 434 of the Companies Act, 1956 the Trade Union would certainly be competent to present a winding up Petition. We may add here that this does not mean that in every instance when a Trade Union or a workman files a winding up Petition, the Company is ipso facto to be wound up. Whether or not there is any merit in the claim made by the workman and/or employee depends on the circumstances in each case. All that we are holding is that a Trade Union, though having a legitimate claim, cannot be shut out from approaching the appropriate forum for winding up the Company on the ground that its members have not been paid their wages and/or salaries. We therefore hold that an employee can maintain a Petition for winding up of a Company unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 several grounds. One of the contentions raised by the Respondent Company was that the Petitioner is not a creditor of the Respondent Company. It was the contention of the Respondent that the Petitioner being an employee of the Respondent, cannot maintain the Company Petition under section 439 of the Companies Act, 1956 as he was not a creditor of the Respondent Company. In support of this proposition, the Respondent relied upon a decision of the learned Single Judge of this Court in the case of Mumbai Labour Union. 2002 (2) Mah. L. J. 405 In this decision, the learned Single Judge, placing reliance on the decision of the Supreme Court in the case of National Textile Workers' Union and others vs P.R. Ramkrishnan and others (1983) 1 SCC 228 : AIR 1983 SC 75, came to the conclusion that the workers had no right to prefer a Petition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 provisions of the Companies Act, can institute or file a Petition for winding up of a Company. We therefore, in our order dated 22nd February, 2017, recorded that the only issue that would survive for our consideration was whether a Trade Union can file a Petition so as to espouse the cause of a workman or workmen who are members of such a Trade Union. Whether the Trade Unions Act, 1926 would be the governing law in so far as this aspect is concerned, or whether the applicable provisions in so far as the State enactments carving out a category of unions namely, representative / recognised unions alone could maintain such a Petition was also needed to be considered. The above being the only surviving issue, the parties have addressed us on the same. 8. To understand the controversy, it would be necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the trustee for the holders of debentures, shall be deemed to be creditors within the meaning of clause (b) of sub-section (1). (3) A contributory shall be entitled to present a petition for winding up a company, notwithstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all, or may have no surplus assets left for distribution among the shareholders after the satisfaction of its liabilities. (4) A contributory shall not be entitled to present a petition for winding up a company unless - (a) either the number of members is reduced, in the case of a public company, below seven, and, in the case of a private company, below two; or (b) the shares in respect of which he is a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 1926. Section 2(g) defines the words 'trade dispute' to mean any dispute between employers and workmen or between workmen and workmen, or between employers and employees which is connected with the employment or non-employment, or the terms of employment or the conditions of labour of any person and 'workmen' means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises. From this definition, it is clear that when a workman or an employee is not paid his wages and/or salary, the same would certainly fall within the definition of the words 'trade dispute'. 12. Thereafter, Chapter II of this Act deals wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (k) subject to any conditions contained in the notification, any other object notified by the 2 [appropriate Government] in the Official Gazette. 13. As can be seen from the said section, Registered Trade Unions can prosecute or defend any legal proceeding to which the Trade Union or member thereof is a party, when such prosecution or defence is undertaken for the purpose of securing or protecting any right of the Trade Union as such, or any rights arising out of the relations of any member with his employer or with a person whom the member employs. In fact, the Trade Union can even spend general funds on the conduct of trade disputes on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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