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TMI Blog2024 (12) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... altogether, alien to the one which was under consideration in the matter of Sunil Kumar Jain and others (supra). Hence, the observation made in Para 19, where the determination was being made for the entitlement of salary and wages for the workers who worked during the CIRP proceedings, was based upon a case with a marked distinction, than to the one at hand, where the Appellant claims for the retention allowance which is yet to be established as part of wages and salary. After having scrutinized the Impugned order of, the Ld. Adjudicating Authority, after considering the rival contentions, and particularly the stand taken by the Appellant, based upon the endorsement of 18.05.2017, pertaining to the denial of payment of the retention allowance amounting to Rs. 2,80,36,076/- it is determined to be non-payable as, no service conditions were placed on record, based upon the terms of the appointment, that the retention allowance did ever form as to be part of an emolument, which was ever made payable to the members of the Appellant association, based upon the service contract entered into with them. The payment slip placed on record and the endorsement of the then Managing Director on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation. The only controversy which is now confined to be considered by this Appellate Tribunal is the payment and the entitlement for the payment of the remittance of the retention allowance. 2. In the company appeal in question, the challenge, which has been given, by the Appellant is, to the Impugned Order of 11.03.2024, which was passed by the NCLT Hyderabad bench, where it has rejected the IA No. 251/2022, as preferred in CP (IB) No. 111/7/HDB/2017, wherein the appellant in the representative capacity has sought for the following relief : - (a) To direct the liquidator to pay the applicant's salary for the month of June 2017. (b) To direct the liquidator to pay the retention allowance which was committed by the Erstwhile Management of the Corporate Debtor (CD), being an incentive for the employees to continue with the employment of the Corporate Debtor. 3. The said claim of the payment of the retention allowance has been rejected, by the Ld. Adjudicating Authority, on the ground, that the internal note made by the officials of the Corporate Debtor, approving the payment of retention allowance cannot be taken as to be the basis, for the payment of the retention allowance, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he members of the association of the Appellant, it would not constitute to be the part of the salary. 6. The Appellant has rather based its claim, on the basis of one of the communications made by the then Managing Director of the Corporate Debtor on 18.05.2017, where the head of HR department of the Corporate Debtor, M/s. Lanco Infratech Limited, put up an internal note and the Managing Director has made an endorsement in the same note to the following effect, let us agree, on paying retention allowance of 7% to employees continuing roles till March 2018 , if this particular endorsement which is the basis of claim as made in the correspondence on 18.05.2017, is considered in its entirety, it cannot be taken as a conclusive decision, because it was simply an expression and exchange of a privileged communication, between the two officials of the Corporate Debtor, where the scope of agreeing for the payment of retention allowance, was yet to be considered to be granted in terms of the policy of the Corporate Debtor. Thus the very basis of claim of retention allowance is not based upon any sound material which could be supported by any law as such. It is not the case of the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the retention allowance, was being paid to the seasonal workers , who are employed in a sugar factory, who will not have regular work in the non-crushing season when the sugar factory closes and hence retention allowance was being paid to them during such non-crushing season to ensure their job continuity. It is altogether under a different senario, the said judgment has been rendered and it has got no relevance to the instant case. The Ld. Counsel for the Appellant, has yet again referred to another Judgment as reported in 2022 volume 7 SCC page 540, in the matter of Sunil Kumar Jain and Others Vs. Sundaresh Bhatt and Others, particularly he has particularly embarked upon Para 19 and 22 of the said Judgment, in support of his contention. Para 19 22 of the said Judgment is extracted hereunder:- 19. Therefore, while considering the claims of the workmen/employees concerned towards the wages/salaries payable during CIRP, first of all it has to be established and proved that during CIRP, the corporate debtor was a going concern and that the workmen/employees concerned actually worked while the corporate debtor was a going concern during the CIRP. The wages and salaries of all ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP proceedings, was based upon a case with a marked distinction, than to the one at hand, where the Appellant claims for the retention allowance which is yet to be established as part of wages and salary. After having scrutinized the Impugned order of, the Ld. Adjudicating Authority, after considering the rival contentions, and particularly the stand taken by the Appellant, based upon the endorsement of 18.05.2017, pertaining to the denial of payment of the retention allowance amounting to Rs. 2,80,36,076/- (Rupees Two Crores Eighty Lakhs Thirty-Six Thousand Seventy-Six Only), we determine it to be non-payable as, no service conditions were placed on record, based upon the terms of the appointment, that the retention allowance did ever form as to be part of an emolument, which was ever made payable to the members of the Appellant association, based upon the service contract entered into with them. The payment slip placed on record and the endorsement of the then Managing Director on which the Ld. Counsel for the Appellant has relied heavily, will not establish the case for making the retention allowance as part of salary in itself in the absence of there being any supporting docume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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