9911796707
TMI Blog2018 (12) TMI 1677X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is Rs. 1 ,637/-, and another component is Rs. 81,615/-. First component pertains to non-payment of the 'Car Allowance" due to the Applicant as per the terms of his employment contract for the period 06.10.2016 to 28.02.2017 (i.e.,4.84 months), and second component represents the amount deducted ostensibly as 'Car Allowance' between March 2017 to May 2017 despite closure of car lease on 01.03.2017. The Applicant has also issued Demand Notice on 30.01.2018 claiming the above amounts on the following grounds: i. Part A of the debt arises from the fact that - of the four fixed cash elements payable monthly to the undersigned (as per the merit salary increase letter dated 06.06.2015) for the period October 2016 - February 2017, Wipro has paid only the BASIC component of Rs. 54,590/- per month regularly. Of the other three fixed cash elements, while the Wipro Benefits Plan (Rs. 72,795/- per month) and ADDITIONAL ALLOWANCE (Rs. 7,544/- per month) have not been paid by Wipro, regularly for the period October 2016 - February 2017, this has been regularised by paying the overdue amounts retrospectively along with salary for March 2017. However, in case of the fourth and last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e settled the FTR on 28.02.2017, even though he is supposed to settle the FTR within a period of 15 days. Thereafter, Wipro paid the amounts along with March 2017 pay roll. The deductions made from every month 6th October 2016 to February 2017 was in accordance with law. As per Wipro policy, on-site assignees have to settle company's car lease before leaving India, failing which the car EMI shall be recovered and paid to the vendor. In the instant case, Applicant did not settle the car lease payment before leaving for Japan and as such, car EMI amount has been recovered from the Applicant pay roll and has been paid to the vendor. b. There is no amount whatsoever due from Wipro to the Applicant as claimed by him. In addition, thereto the notice is not in accordance with the Insolvency and Bankruptcy Code, 2016 and Rules, 2016. Wipro hastens to add that Applicant is not an Operational Creditor and not entitled to invoke the provisions of the Code. c. The car lease scheme was closed in the month of March 2017, and the car was thereafter transferred to the Applicant. The contention of the Applicant that the car allowance element of fixed cash is unpaid till d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent has also filed a police complaint with regard to Applicant failed to return the laptop. 4. Apart from the stated position as above, the Respondent is also alleging that the Applicant has filed multiple applications and abusing the process of law calling for imposition of penalty under Sections 75 and 76 of the Code. The Respondent is vehemently opposing that any 'debt' is due, and has also made further submissions: a. it is submitted that the email carrying the said demand notice neither had any invoice of demand nor adequate calculations. It is mandatory that the notice must be issued to the persons as mentioned in the said Rule and non-compliance of the same will render the demand notice void. b. The Respondent submits that there has been a "dispute in existence" with the Applicant much before the demand notice was issued to the Respondent. The Applicant was placed on loss of pay in the year 2016 from 05.09.2016 to 04.10.2016. The Applicant had raised a complaint with the Respondent's Ombudsman regarding the same and the Ombudsman decided against the Applicant. It is pertinent to mention that the Applicant has suppressed the material fact o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or car allowance should have been reversed along with salary for March 2017 is misconceived. e. The Respondent submits that there is no salary/wage that is due or payable to the Applicant and therefore there is no debt that is owed by the Respondent to the Applicant. Further, there is no default. It is pertinent to mention that the Applicant failed to comply with the Respondent's direction w.r.t. his conditions of employment and failed to report to work and finally resigned from services of the Respondent. f. The dispute as to whether the Applicant or Respondent has committed breach of contract is a disputed question of fact which cannot be adjudicated in the present Petition. The Applicant is not a workman, has no debt to claim and more so the Respondent has not defaulted in making any payments and there is a 'dispute in existence'. g. It is submitted that the Respondent is a responsible corporate and an existing Company within the meaning of Companies Act, 2013, and is listed on BSE, NSE and NYSE. It has a workforce of 1,81,482 people across the globe and is processing salaries/wages to its workforce on a specified date of the calendar month. A reference &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018. The competent authority vide order dated 17.04.2018 directed the Applicant to return the laptop within a period of seven days. However, the Applicant belatedly returned the laptops on 25.05.2018. After returning the two laptops, the accounts team credited a sum of Rs. 39,600/- to the account of the Applicant. It also submits that even though the litigation was pending between the parties, the Respondent has released the payment. i. The Respondent submits that the claim of the Applicant is bonafidely disputed by the Respondent and the Respondent has a valid defence. In addition, as stated supra, the Applicant is liable to pay Rs. 50 Lakhs. The Respondent has specifically pointed out that it is not liable to pay the alleged amount in as much as once car lease period is completed and employees buy's back the car, the car allowance is not separately possible on balance merged with Wipro bonafide circumstances component of the salary. 5. In the meantime, the Respondent has also filed I.A. No. 120/2018 U/s 9(5)(ii)(d) of the IBC, 2016 R/w Rule 11 of the NCLT Rules, 2016, by inter alia, seeking rejection of the application filed by the Applicant and also made the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commits a default. Section 3(11) and 3(12) reads as under: "debt" means a liability or obligation in respect of a claim which is due from any person and includes afinancial debt and operational debt. "default" means non-payment of debt in whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be. g. The Respondent submits that there is no salary/wage that are due or payable to the Applicant and therefore there is no debt that is owed by the Respondent to the Applicant. Further, there is no default i.e. non-payment to the Applicant as alleged or at all. It is pertinent to mention that the Applicant failed to comply with the Respondent's direction with respect to his conditions of employment and failed to report to work and finally resigned from services of the Respondent. h. The Respondent also submits that since the existence of the debt, which is fundamental to the initiation of the proceeding under the Code itself is disputed and this Hon'ble Tribunal lacks jurisdiction to determine whether a debt exists or not. i. It is the intention of th ..... 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