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TMI Blog2024 (7) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... onal liability can be fastened on the RP. The prayers made by the Appellant in the Application, could not have been allowed and in view of the affidavit filed by the RP, the apprehension that Appellants 103 employees shall receive double payment has also been clarified and those 103 employees shall not be entitled to be made any payment as per the Resolution Plan towards their unpaid salary. Whereas, 103 employees shall also be entitled for payment of gratuity and provident fund. There is no ground has been made out to interfere with the order passed by the Adjudicating Authority - appeal dismissed. - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For Appellant : Mr. Vikas Mehta , Ms. Anshula Grover , Mr. Mayan Prasad , Mr. Kartik Pandey , Ms. Nitika Grover , Advocates For Respondent : Mr. Arun Kathpalia , Sr. Advocate with Mr. Raghav Chadha , Mr. Dhiraj Kumar Totala , Mr. Nishant Upadhyay , Mr. Ankit Pal and Mr. Ajay Raj , Advocates JUDGMENT ASHOK BHUSHAN , J. This Appeal has been filed challenging the order dated 26.09.2023 passed by National Company Law Tribunal, Court Room No.1, Mumbai Bench in MA No.3387 of 2019 filed by the Appellant/ Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority was challenged by the Appellant. In this Tribunal in Company Appeal (AT) (Insolvency) NOo.752 of 2021, which was partly allowed by this Tribunal by order dated 21.10.2022, holding that workmen and employees are entitled to their provident fund and gratuity minus amount already earmarked in the Resolution Plan. (v) MA No.3387 of 2019 after listing on several occasion, came for consideration by the Adjudicating Authority and by the impugned order, the same has been rejected. The Adjudicating Authority noticed the submission of the Applicant and those of RP and held that Application is devoid of merit. The submission of parties has been noticed in paragraphs 3 to 6 of the order, which is as follows: 3) Counsel for the Resolution Professional submits that after taking over the Corporate Debtor, the Resolution Professional prepared a team called Asset Preservation Team to preserve the value of the property of the Corporate Debtor. 4) It is further submitted that the Respondent approached the heads of department and employee associations to discuss the scope of work that would be absolutely necessary during the CIRP Period. The selection of team members in each department was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as the waiver of the dues there were two independent aspects. 3. Learned Counsel for the Appellant submits that in event the 103 persons are again made payment out of the amount earmarked for the workman and employees there will be double payment to 103 employees. 4. Learned Counsel for the Respondent seeks time to obtain instructions on the above. As prayed, list this appeal on 10th July, 2024. 6. In response to the order dated 02.07.2024, an additional affidavit has been filed by the RP, wherein in paragraphs 2 to 5, following has been pleaded: 2. I say that in terms of the waiver given by the said members of the Asset Preservation Team ( APT ), i.e., 103 employees/ workmen, who in terms of the waiver agreed to give up their claim towards their unpaid salaries and consequently shall not be entitled to get payments from the approved Resolution Plan of Jet Airways. 3. Further, I say that the said l03 APT members can claim their dues only towards provident fund and gratuity dues which they shall be entitled to receive in accordance with the judgement of this Tribunal dated October 21, 2022 in CA (AT)(Ins) 752 of2021. 4. I say that an amount of approximately INR 5.4 crore was pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department was made by the respective heads of department / engineering associations and was inter alia based on the expertise of each employee in their area of responsibility / responsibilities, such as (i) regulatory/statutory requirement; (ii) ability to handle teams across different verticals; (iii) access to data required to execute the task; (iv) ranking in the organization in order to comprehend the CIRP and manage teams to execute the task; and (v) their ability to discuss future organization prospects with a potential resolution applicant and support business plans. Additionally, the heads of department and engineering associations assisted the Respondent in identifying members of the APT inter alia based on the following criteria: i. Expertise in the role identified for preservation of aircrafts, engine, property and other assets; ii. Technical expertise where applicable; iii. Compliance to DGCA and BCAS iv. Personnel who would be required for Corporate Debtor to continue/ retain its air operator certificate (post holders); v. Cost and availability willingness of the individual; 16. During the above meetings, preliminarily, approximately 301 employees of the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he financial creditors of the Corporate Debtor at the first meeting of the Committee of Creditors ( CoC ). These payments were proposed to be included in the budget for operation costs to run and safeguard the assets of the Corporate Debtor. The budget including these lump sum payments was approved as CIRP cost by the CoC in the evoting concluded on July 19, 2019 by a majority of 81.06%. In fact, the Respondent has at all times kept the CoC and this Hon'ble Tribunal updated of all the developments in this regard. 19. It is pertinent to note that even if the Respondent had failed to obtain a waiver and/or such concession, given the circumstances prevailing, the Respondent would in any event have had to make such lump sum payments which had been sanctioned by the CoC as a part of CIRP costs. In fact, the Respondent has been able to extract a benefit for the Corporate Debtor by obtaining a waiver from the claims of the relevant members of the APT. The Respondent submits that it is this waiver and/or concession obtained from the 103 employees that is mischaracterized as a payment of pre- CIRP dues of the said employees. In addition to the above, the said APT members are free to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, this error was immediately rectified by the Respondent by publishing the List of Creditors version 3A on September 06, 2019 itself. The Respondent in its reply in M.A. 3387 of 2019 has clearly stated that the claims were either admitted or under verification and as such, an updated version of the List of Creditors (being version 3A) was published on the website of the Corporate Debtor on September 6, 2019 itself, and included all the claims of the 103 members of the APT. The Respondent craves leave to refer and rely on a copy of the List of Creditors (version 3A) as and when required. 10. When we look into the pleadings made in this Appeal, we are of the view that the prayers made by the Appellant in their MA No.3387 of 2019 were not liable to be allowed. Whatever prayers have been made has been clearly categorically explained in the reply affidavit of Respondent filed in this Appeal, as well as before the Adjudicating Authority. There is no occasion for holding RP personally liable for any payment made to 103 employees. It is pleaded by the RP that the payments, which have been made, were made with the approval of the CoC. Any payment after CIRP having been made by the RP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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