B.P. Colabawalla, J.

1. This matter has been placed before us by the Hon'ble Chief Justice in view of the order passed by the learned Single Judge on 24th January, 2017. The issue referred to us for our consideration is:-

“(i) Whether an employee can maintain a Petition for winding up of a Company under section 439 r/w sections 433(e) and 434(1)(a) of the Companies Act, 1956 as a creditor based on the claim of the recovery of his unpaid salary and wages?”

2. The reason why this matter was referred to a Larger Bench was because the learned Single Judge in this matter was not in agreement with a view taken by another learned Single Judge in the case of Mumbai 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 effec