A.P.Misra, J. - (1.) HEARD learned counsel for the parties. Petitioners No. 1 and 2 are the registered Trade Unions and petitioner Nos. 3 to 224 are the workers of the respondent company. The present petition has been moved by the workers of M/s. Laxmi Industrial and Trading Company Private Ltd. for its winding up. The petitioners are workers of the said factory. According to the petitioners the nominal capital of the company is Rs. 25,00,000/ - divided into 2500 equity shares of Rs. 100/ - each. The amount of capital paid up or credited as paid is Rs. 19,04,800/ -. The petitioners have claimed that there salary amounting to Rs. 43,24,71.15 and Rs. 2,24,438/ - as per Annexures I and II of the notice dated 23 March, 1983 for the period of October, 1981 to February, 1982 and December, 1982 to February, 1983 are due and have not been paid. They have also claimed the payment of bonus for the year 1980 -81 and 1981 -82 amounting to Rs. 17,44,03.60 as per Annexure -III of the notice. The said workers gave notice to the company on 23rd March, 1983 under Section 433 of the Companies Act demanding the said dues. It is said that in spite of the said notice the Company failed to pay the dues and they have filed the present petition for winding up. It has also been averred that the Company has closed down its business since June, 1980 excepting for a short period during the period of two years when the business was carried on. The Punjab National Bank has filed a suit for realisation of more than Rs. 58,00,000/ - and the said suit is pending in the court of Civil Judge Bijnor. Similarly the Company is also indebted to the Banaras State Bank Nazibabad for about Rs. 5,00,000/ - and there are various Government dues amounting to Rs. 6,00,000/ -. It has been further stated that the assets of the Company are abandoned and none of the Directors are taking care of the said assets and for their protection and preservation and as such the assets of the Company are in the danger of being wasted or otherwise misappropriated by unsocial elements. The present petition has been moved that since the Company is unable to pay its dues and in spite of the statutory notice, it did not pay the same, it should be wounded up. In fact, in this proceeding, the Punjab National Bank has been impleaded as one of the respondents by means of the order passed by this Court and is represented by Sri K.L. Grover.
(2.) IN the counter affidavit filed, the various claims made by the petitioners have been denied. It has been stated that the present management has been taken over on 29th January, 1982 as they held 82% shares of the Company. There was a lock out in the Company from September, 1981 to January, 1982 due to the illegal strike as well as the threat given by the workmen of the Company to the then management. However, due to the intervention of the new Board of Directors, the lockout of the Company was lifted and the employees of the Company resumed their duties on April 1, 1982 and they were paid salary by the company up to December, 1982. The respondents have denied any claim of the workers prior to this period as there was no question of any arrears of salary due to the workers for the month of October, 1981 to February, 1982 as there was a lock out in the Company and no salary was payable to the petitioners by the Company. After the workers resumed the duties there was again a dispute between the management and the workers and it is alleged that the agreement was arrived at between the parties on 16th August, 1982 wherein the workers agreed to run the Company from 16th August, 1982. It has further been stated in the counter affidavit that it was agreed between the parties that the period during which the workers had restrained themselves from working in the Company, would not be entitled for their salary and the said period would be treated as leave without pay. It is on account of continuous illegal strike that the management thereafter was unable to run the company and was compelled to declare the lock out with effect from 1st January, 1983 and since then there is a total lock out in the Company. Thus, in fact, in the counter affidavit they have denied the claim of the workers and are disputing the claim made by the petitioners regarding the wages and salary. It is also urged that the workers can agitate for their claims, if their wages and bonus are in dispute by way of filing petition before the appropriate court under the Industrial Dispute Act or various other Labour Laws and even after obtaining the decree, if the Company is not paying the same, they can obtain execution of the said decree or by taking appropriate measures under those Act and realise the same from the Company but on account of that they would not be entitled for the relief of winding up of the Company by way of the present petition. Before hearing the petition a preliminary objection was raised on behalf of the respondents that the present petition for winding up of the Company by the workers is not maintainable as they would not be one of persons referred under Section 439 of the Companies Act. This point is covered by a decision of the Supreme Court. In the case of Industrial Workers' Union etc. v. P.R. Ramakrishnan and others, : A.I.R. 1983 S.C. 75 it has been held in that case that the workers have no right to present petition for winding up as they are not one of the persons specified in Section 439 of the Companies Act.
(3.) LEARNED counsel for the petitioner, however, urged that in the preceding paragraphs of the aforesaid Judgment the Hon'ble Supreme Court has taken into consideration the petition of the Company qua social changes brought about in the last decades. Looking from the larger interest of the Company the Company is no longer a Company of the shareholders. It is true that the Supreme Court in this case has taken into consideration and has given a wider meaning to the Company and has not confined itself upto the case of the shareholders. However, the said consideration was made for giving right to the workers which was not referred in the Companies Act for participating in the proceedings of winding up if it is brought by some one else to protect their civil rights which inherently lies on account of their service in a Company coming to an end where winding up is being ordered. The reason very explicitly brought about was that in a winding up petition the interest of all persons has to be taken into consideration and since the workers are earning their livelihood from the said Company, if the order of winding up is passed, their civil right is taken away and even in the absence of any provisions of the workers' participation, they would be entitled under law to participate in the proceeding to the extents their rights are affected. However, in spite of those principles as laid down, the Hon'ble Supreme Court was very clear in making it very explicit that so far the workers are concerned they cannot be emitted for filing or maintaining the petition for winding up.;