KHIMJIBHAI SANABHAI PARMAR Vs. SEVALIA CEMENT WORKS

JUDGEMENT

(1.) The petitioner, namely, Khimji Sanabhai Parmar has filed this petition under Section 433 (e) read with Section 434 of the Companies Act, 1956 for winding up of the respondent Company, namely, M/s. Sevalia Cement Works, unit of M/s. Manor Investment Private Limited.

(2.) It is the case of the petitioner that the petitioner was a workman and was regularly working in the respondent Company for the last many years. About 260 workers were working with the respondent Company and about 123 employees were working in Balasinor quarry, which was run and managed by the respondent Company. It is also stated that in all 400 workmen were working with the respondent and the respondent was not paying regular wages to its employees inspite of several demand, notices and directions of the Court. The petitioner and all other workers were engaged and appointed by M/s. Associate Cement Company Limited and they were working with the said Company for many years. The respondent Company was run and managed by ACC Company Limited and was a profit making unit. However, the said ACC Company decided to sell the said unit to the respondent by an agreement dated 05.03.1988, along with all the liabilities of about 11,102 workers at the relevant time. After purchasing the unit of M/s. Sevalia Cement Works, the respondent Company was not running the unit and the factory was totally closed from May 1989 and there was no production from that date. The respondent Company has sold away the assets of the Company and the regular wages of the workers were not paid. More than Rs. 10 Crores were due and payable by the respondent Company to its workers towards the wages, allowances etc. The respondent Company has made payment to its other Creditors without paying wages to its workers and employees and as per the Provisions of Section 529-A and 530 of the Companies Act, 1956, the dues of the workers are having priority over the dues of other Creditors of the Company. The petitioner has, therefore, filed the present petition for recovery of his dues from the respondent Company.

(3.) After issuance of notice, this Court has granted interim relief on 24.04.1997, in terms of para 14 (c) of the petition whereby the respondent Company was restrained from disposing of any of its assets, movable or immovable and was further restrained from transferring, alienating or in any way creating charge over the movable and immovable of the Company. Thereafter, consent terms were arrived at between the parties i.e. between the workmen and the respondent Company on 26.10.1997. It is interalia stated in the said consent terms that during the pendency of the above petition and all other petitions, the workmen and the Management have arrived at an amicable settlement. The said consent terms were in respect of about 400 workers. The workmen have agreed to accept all the legal dues upto 31.01.1997 as cut-off date for all the purposes i.e. for the purpose of their own legal claims in respect of wages, all benefits and all other allowances etc. The respondent Company has agreed to pay all the legal dues including wages and other allowances for 49 months towards full and final settlement of all claims in respect of the wages, benefits and other allowances for the said period. The respondent Company has further agreed to pay the amount of wages and allowances for four and half months out of the disputed period of nine months which was the subject matter of the dispute pending before the Industrial Tribunal in Reference (I.T.) No. 478 of 1992. The said payment was agreed to be accepted in full and final settlement of the disputes and the Reference was to be withdrawn accordingly. It was also agreed that the said legal dues of the workmen would be paid by the Management by disposing of the movable / immovable assets of the Company and other misc. assets to that extent only. The Company has also agreed to dispose of the movable assets at the first instance and thereafter if the dues are not satisfied then the Company would dispose of the immovable assets. The parties have also agreed to get the interim relief granted by this Court vide order dated 24.04.1997 passed in Company Petition No. 40 of 1997, modified to that extent so as to enable the respondent Company to meet with the above liability. The assets were to be disposed of within the period of six months and the sale was to be conducted by the Committee consisting of five representatives of the Union and three representatives of the respondent Company. The amount of the sale proceeds was to be deposited in this Court and all the workmen would be paid their dues as per the amount drawn in Annexure to the settlement. The respondent Company has also agreed to pay the Provident Fund Contribution upto the cut off date i.e. 31.01.1997 before the authorities to enable the employees to get their P.F. and pension benefits under the Scheme. The respondent Company has also agreed that all the workmen would continue to occupy their respective Quarters till the entire amount was paid to the concerned employees. The respondent Company has also agreed that the Company would continue to supply all the necessary amenities i.e. light, water, etc. till the entire dues were paid up to the concerned employees.