The main legal point established in the judgment is that a workman, as a creditor, is entitled to file a petition for winding up under the Companies Act, and that the Securitisation Act has an omission in protecting the interest of workers.

JUDGMENT :

F.I. Rebello, J.—The Apex Court by order dated August 5, 2004 has remitted the matter to this Court from an appeal which was filed against the order dated August 5, 2003. The matter has been remitted for deciding the inter se priority of dues of the workers and the Bank. Punjab National Bank had advanced monies to the Company under liquidation. Those amounts are now sought to be claimed by respondent No. 5, Asset Reconstructions Company (India) Limited. It is the contention of respondent No. 5 that the property which has been sold pursuant to notice issued u/s 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as Securitisation Act) was mortgaged in their favour and charge was registered under the Companies Act and, therefore, they are secured creditors. In the notice served u/s 13 of the Securitisation Act the amount claimed was in the sum of Rs. 4.66 crores. The workmen of the Company had filed the present petition as they had orders in their favour in proceedings taken out u/s 33-C(2) of the Industrial Disputes Act in the sum of Rs. 2,41,89,797/-.

2. In the course of the hearing before us we have noted that there appears to be an omission under the Securitisation Act for protecting the interest of workers, when secured assets are sold consequent of which either the company cannot carry out its objectives or the sub-stratum disappears. We enquired of the counsel for the Petitioner as to why they have not proceeded before the Company Court for an order of winding up considering the order in favour of the workmen by the Industrial/Labour Court. Learned Counsel for the Union has drawn our attention to the Judgment of a learned single Judge in Mumbai Labour Union v. Indo French Time Industries Limited 2002 I LLJ 179 where a learned single Judge relying on the judgment of the Apex Court has taken a view that a worker cannot maintain a petition for winding up.

3. It is in view of that the learned Counsel has sought permission in the present writ petition to file a petition for winding up of the Company in view of the judgment of this Court in Mumbai Labour Union (supra). As the judgment has far reaching consequences to workers of a company, who may fall under the definition of Creditors, we have heard arguments on that point and are disposing of that issue by this order. The issue needs to be decided as we find an omission in the Securitisation Act, which in situation like the present case where there are no proceedings filed for winding up or the Company is wound up the monies realized from sale of the Company's assets will not be available to the workers u/s 529-A of the Companies Act even if the sub-stratum of the company disappears or because of the sale of assets it cannot carry out the objectives for which it was incorporated. A learned single Judge of this Court in the above case where the Union had approached the Company Court for winding up of the Company for the amount due to the Workers has taken the view that a workman has no right to file a Company Petition and that they have a legitimate and more efficacious remedy under labour laws for recovery of their dues from the Company. The learned Judge in so holding has relied on the judgment of the Apex Court in National Textile Workers' Union and Others Vs. P.R. Ramakrishnan and Others, (1983) 1 SCC 228. The judgment in National Textile Workers Union (supra) was not in respect of a petition for winding up of a company filed by the workmen or the Union. The issue there was, in a case for winding up whether the Union of workmen had a locus standi to move the Company Court either to support the application for winding up or oppose the application for the winding up. The judgment, therefore, was no authority for the proposition that the workmen as creditors or for that matter the trade union which is person in law considering the provisions of the Trade Unions Act, cannot apply on beha