SHEET ACO No.159 of 2015 APOT No.433 of 2015 CP No.252 of 2015 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE ABHIJEET FERROTECH LIMITED Versus RAJESH KUMAR VERMA BEFORE: The Hon'ble JUSTICE INDIRA BANERJEE The Hon'ble JUSTICE SAHIDULLAH MUNSHI Date : 9th September, 2015.
Appearance: Mr.Ajoy Chatterjee, Sr.Adv.Mr.M.S.Tiwari, Adv.Mr.S.Bajaj, Adv.Mr.Nirmalya Dasgupta, Adv.Mr.Debanath Dey, Adv.The Court: This appeal is against a common order dated 26th August, 2015 passed by the learned Company Court in a winding up petition being CP No.268 of 2014, filed by the petitioning creditor Hirak Ghosh against the appellant company, which was heard along with five other winding up petitions against the appellant company, being CP Nos.531 of 2014, 203 of 2015, 228 of 2015, and 252 of 2015, filed by the petitioning creditORS.Dyutimoy Mukherjee, Pradeep Kumar Bhargav, UniCo.Technology International PVT.LTD.and V.
The winding up petition being CP252of 2015 filed by the petitioning creditor V.
Subramaniam, a former employee of the company was admitted and advertisements were issued, after which many supporting creditORS.some of whom had also filed separate winding petitions, appeared in the Company Court, and filed affidavits in support of winding up of the appellant company.
Most of the supporting creditors were ex-employees of the appellant company who had resigned on diveRs.dates between 2013 and 2015 who claimed that the appellant company had not paid their dues.
The petitioning creditor in CP268of 2014, Hirak Ghosh also joined as a supporting creditor in CP252of 2015.
The claims of the respective ex-employee petitioning creditors/supporting creditors as adjudicated and admitted by the learned Company Court and their respective dates of resignation are as follows: Names: Principal Claim: Date of Resignation
Subramaniam Rs.59,49,065/- 18/11/2013
2) Hirak Ghosh Rs.12,71,214/- 06/08/2013
3) Dyutimoy Mukherjee Rs.1,43,243/- 31/10/2013
4) Pradip Kumar Bhargav Rs.36,35,352/- 13/05/2013
5) Subhadip Mukherjee Rs.2,55,310/(less Rs.25,000/-) Rs.2,30,310/- 15/11/2013
6) Vrajesh Shah Rs.14,56,736/- 07/01/2014
7) Sachin Shah Rs.15,20,776/- 19/03/2014
8) Ashish Jain Rs.7,70,024/- 09/01/2014
9) Anil Kumar Birla Rs.9,13,100/- 05/11/2014
10) John Joseph Rs.6,05,775/- 07/04/2014
11) Rajesh Kumar Verma Rs.5,56,948/- 09/02/2015 The learned Company Court directed that if the company paid off its admitted dues to its erstwhile employees indicated above, within a week from the date of the order under appeal, the company petitions being CP No.252 of 2015, CP No.268 of 2014, CP No.531 of 2014 and CP No.203 of 2015 would remain permanently stayed.
In default of entire payment in terms of the order of admission and in respect of the claims adjudicated by the order under appeal, the company might be wound up.
The surviving winding up petitions i.e.CP No.252 of 2015, CP No.268 of 2014, CP No.531 of 2014 and CP No.203 of 2015 were directed to be listed on 10th September, 2015.
As recorded in the order under Appeal, the claims were admitted on the basis of a tentative calculation prepared by the appellant company.
This tentative calculation was disputed by the appellant company before the Learned Company Court on the contention that reimbursement of medical expenses, leave travel allowance etc.was subject to verification upon furnishing of documents and variable pay was not payable to employees serving the appellant company for less than five yeaRs.The learned Company Court rejected the contentions of the company inter alia holding that the company could not demonstrate that the balance variable component was not part of the salary of the employee, and rightly so.
The tentative calculations in respect of reimbursement of medical allowances, leave travel etc.could not have been made without verification of documents.
Disputing the claim by calling for production of documents, possibly in the custody of the appellant company itself, is nothing but a sham defence.
It is not in dispute that the calculations were made by an Officer of the company.
The defence of the signatory not being authorized is an after thought.
May be the variable pay was part of the agreed package payable to the employees and/or part of the CTC (Cost to company) as contended by the concerned petitioning/ supporting creditORS.Mr.Ajoy Krishna Chatterjee, Senior Advocate appearing on behalf of the appellant company has drawn our attention to the published policy of the group companies, as contained in its Human Resource Manual (Version
3) a copy of the relevant pages whereof have been annexed to an application filed before us by the appellant company in connection with one of its appeals against the impugned order of the learned Company Court.
In terms of the said published policy, employees who leave the company before completing five yeaRs.would not be eligible for variable pay on the basis of performance.
The policy was not placed before the learned Company Court.
In view of the published policy it cannot be said that the appellant company has no defence at all to the claim of the concerned employees on account of variable pay.
It is well settled that the Company Court is not a debt collecting Court.
The concerned employees may have earlier been allowed variable pay.
The question of whether any right had accrued to the employees to get performance based variable pay is a disputed question.
Whether the policy was at all given effect or not and if given effect, whether the policy had been modified, the circumstances in which variable pay had been allowed by the appellant to the concerned employees, are issues which require adjudication.
The claim on account of variable pay is seriously disputed.
Since there is apparently a bona fide dispute in respect of the claim to variable pay, the said claim may be relegated to a suit or to such other proceedings as the concerned petitioning creditors/supporting creditors may be advised.
The balance claim including the claim on account of medical allowances, leave travel allowance and conveyance allowance is to be deemed to have been admitted on verification of documents and those claims shall be cleared.
The appellant company prays for orders permitting the appellant company to pay off its dues except the dues towards variable pay in respect of four of the supporting / petitioning creditors that is variable pay of Rs.18,00,000/- claimed by P.K.Bhargav, Rs.3,32,534/- claimed by Hirak Ghosh, Rs.3,57,153/claimed by Vrajesh Shah and Rs.4,73,592/- claimed by Sachin Shah.
The company shall pay a sum of Rs.5,56,948/- (Rupees Five lakhs fifty six thousand nine hundred and forty eight) only to the respondent Rajesh Kumar Verma along with interest @ 8% per annum to be computed as per reducing balance, from the date of his resignation being 9th February, 2015 till full repayment in six monthly instalments.
The principal amount of Rs.5,56,948/- shall be paid in five equal monthly instalments of Rs.1,11,400/- each.
The balance, if any as well as interest as directed above, shall be paid in the 6th instalment.
The fiRs.instalment shall be paid within 7th October, 2015 and the subsequent instalments within the seventh day of each succeeding month.
Subject to such payments winding up petition being CP No.252 of 2015 shall remain permanently stayed.
In default of payment of any one instalment within the time stipulated in this order the stay shall stand vacated and the winding up proceedings continue.
The appeal and the connected applications are disposed of.
(INDIRA BANERJEE, J.) (SAHIDULLAH MUNSHI, J.) cs.