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TMI Blog1993 (9) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that there is no law which requires to ignore the rights of the secured creditors. 3. The workmen of the Mill are about 2700 and it is submitted that the Mill camp to be closed on February 2, 1992 without permission as required by the provisions of the industrial Disputes Act and without paying even the wages for the months of November, December 1991, January and February 1992. It is submitted that the wages for the period of November 1991 comes to ₹ 24,20,000/- for the months of December 1991, it comes to ₹ 32,50,000/- for the month of January 1992, ₹ 34,00,000/- and for February 1992, it comes to ₹ 29,00,000/-. Thus in all ₹ 1,19,75,000/- is the amount of outstanding wages for the period for which the workers have actually worked. 4. In the main petition, prayers are made for declaring that the closure of the undertaking without prior permission under section 25(0) of the industrial Disputes Act is illegal and void and for a direction to the authority to initiate criminal prosecution against respondent no. 2 for breach of the provisions of section 25(0) of the industrial Disputes Act. Further prayers are made for appointment of a commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se assets, the products which are lying in stocks valued at ₹ 91,77,000/- the salaries and the dues of the workers from May 1984 till the date of closure could be made. It was contended that in case these stocks are liquidated and the amount collected are paid off to the workers, difficulty may arise as this asset which has been taken into account will not be available for the scheme of restarting the industry. Looking to all the circumstances and taking a broad and humane view of the situation, we are of the opinion that it would be just and proper that these goods which are lying in stock should be sold and out of the sale proceeds the workers should be paid their dues upto the date of closure (from May 1984 to July 1984 i.e. 8th July 1984) so that at least they will get something for subsistence. Learned counsel for the State Bank of India pointed out that his client has paid for the insurance of certain assets and for the loss thereof in whole or in part, the insurance has paid for the loss. The official liquidator may kept that amount separately and allow the State Bank of adjust the same against its insurance. So far as the stock pledged and the priority of the financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there were other sufficient securities and properties of the Company and, therefore, if this stock of finished products was sold to meet the basic requirement of the workers, their interest would not be in jeopardy. 7. The judgment was also the subject matter of further discussion in the same case in the Supreme Court in a judgment reported in 1987 (Supple) SCC 462. In paras 5 to 7, the Supreme Court observed as under :- 5. In the order of April 27, 1987, this Court has already indicated the peculiar circumstances of the case. Those considerations were kept in view when the various claims of the financial institutions were brushed aside from immediate consideration and the wages for the limited period were directed to be disbursed. The same considerations are also germane now when the question of meeting the tax liabilities crops up. 6. After the sale proceeds are resolved by the Official Liquidator if he finds that sufficient surplus funds remain in his hands after paying the wages as directed, he would pay the taxes -sales tax and the excise duty. In case there be no surplus, payment of the taxes may be deferred for some time and the Official Liquidator is directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and reaffirmed its earlier view that in fixing priorities, the saving of human lives should be paramount and that view was endorsed and that was the consideration for postponement of public dues also with regard to the grievance of the secured creditors that the company's assets were not sufficient to take care of their claim the Supreme Court observed that whether the company's assets were sufficient to meet with the liabilities is a matter which is yet to be seen and the Court intended to say that there were other assets again which financial institutions could pitch their claims. 9. Theses judgments have been followed by the Division Bench of this Court in the case of Amruta Mills, in Special Civil Application No. 8201 of 1990 decided on March 5, 1991. In that case, it was submitted by this very Union, Textile Labour Association that the workers' right to life and liberty guaranteed under Article 21 of the Constitution of India was to be enforced. The Learned Counsel for the respondents had submitted in that case that the Supreme Court had clarified its earlier order (reported in 1987 (2) LLJ 1) by its subsequent order reported in 1987 (Supple) SCC 462 to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the fact that the Bank has a claim of ₹ 56, 515,123.89 as on May 31, 1993 and the Bank having the first charge on the current assets of the company this realisation of ₹ 47,62,721/- should be appropriated fully towards their claim because it is the sale proceeds of securities. 13. It is further submitted that the petitioner union itself had offered by letter dated October 19,1992 to apportion the amount in the ratio of 60 : 40 i.e. 60 for workers and 40 for the Bank and, therefore, in any case, the workers should not be paid more than 60% of the amount on realisation. 14. One basic objection which has been taken is that this petition is not maintainable more particularly against the private parties namely the Mill and the Mills secured creditors. It is submitted that the petitioner is not entitled to any relief against these respondents in a petition under Article 226 of the Constitution and such a petition would not be maintainable against the respondents. It is submitted that the Supreme Court, under Article 32 of the Constitution, or under its plenary powers, may pass the order which has been passed in the case of Rohtas industries. However, the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson. Therefore, the writ petition under Article 226 of the Constitution for enforcement of fundamental rights can be issued to any person who need not be an authority of the State and it can be a private party. 17. It is submitted that if such a view is taken, any creditor having a money claim against any debtor may contend that his right to life and liberty is deprived of by the debtor and instead of filing a civil suit he can bring his claim to the High Court under Article 226 of the Constitution. This is a far fetched and extreme argument. The paramount consideration mentioned by the Supreme Court regarding saving human lives would be the relevant guideline for exercising power of the High Court is such circumstances. The Supreme Court had exercised the power under Article 32 of the Constitution and that power is only for enforcement of fundamental rights. The question involved in this petition is of right to life and livelihood of 2700 workmen and their families. The Court cannot be oblivious of the fact that on account of closure of numerous mills in Ahmedabad, utterly miserable conditions have resulted for the families of the unemployed workmen. There have been instances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to law. It cannot be said that the directions sought by the petitioner would be contrary to law. The Constitutional law and fundamental rights are part of the law and even within the Constitution, fundamental rights have special importance and within the fundamental rights, right to life and liberty is the most fundamental of such rights. It for enforcement of such right which is the fundamental law of the land anything comes in conflict thereof, it has to give way to se that the fundamental rights guaranteed by the Constitution are not violated. 20. In view of the aforesaid discussion, the contention that the petition is not maintainable has to be rejected. 21. The contention that the peculiar facts of Rohtas Industries case were different has also no merit. It is submitted that in that case, the petition was under Article 32 of the Constitution there was winding up petition pending and a revival scheme was being evolved and the Supreme Court had found that other securities were sufficient and the interest of the Bank would not be jeopardised. These are the differences without distinction. None of these is a material difference. The relevant and material facts are identical, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting into lacs of people being put to untold miseries and hardships and the Court has to take a judicial notice of the situation of unemployment and resultant loss of livelihood and a bare minimum human existence. If in such a mass human problem, the Court were to call upon each workman to prove his hardship that would not only deny justice to him, but the Court will be failing gin its duty to render timely justice and relief which is their fundamental right for human existence. 24. It is next submitted that if any payment is to be made to the workmen, it cannot be more than 60% of the realisation in view of the letter written by the petitioner-union to the employer on October 19,1992 wherein the Union was agreeable to disbursement of the amount to the extent of 60% to the workers and 40% to the Bank. Almost a year has passed and the Bank has not agreed to this proposal. That proposal was made as it is stated in the letter itself, on the ground that in the case before the High Court, decision is likely to be delayed and in view of the fact that Diwali was fast approaching, the workers were keen to get the amount. That Diwali has gone without payment, almost a year has passed th ..... 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