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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 ..... ages consideration of a very short question, as to, whether the members of the Appellant Association, which is a registered body in the name of M/s. Lanco Infratech Employees Welfare Association, who are 212 in number, are entitled to be paid with the "retention allowance" or not. They had raised a claim for, payment of the retention allowance, along with payment of salary for the month of June 2017, which they contend, that since they being an Operational Creditor, in the capacity of Operational Creditor were entitled to be paid with the salary for the month of June 2017, and the retention allowance too. It is not in controversy, and rather admitted too, that the salary for the month of June 2017 had been paid to the members of the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the retention allowance, and we find it to be logical too because any emolument, which is likely to be paid to the employee of an organization, since it would be having a financial implication on the employer , it has to be backed by a legal sanction, meaning it has to be an allowance or a wage or a salary, which is payable under the applicable rules, policies or standing orders of the employer Company. Since the Appellant, who on behalf of the employees was claiming for payment of the retention allowance, then it became all the more necessary, on part of the Appellant to establish, by law and by evidence, to sustain the said claim for grant of such claim. In fact, the Tribunal has observed that, there was nothing on the record, brought by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said endorsement is taken into consideration, its payability was limited to March 2018, and not for a period thereafter, or prior to the 18.05.2017. Thus, for the intervening period of 18.05.2017 till March 2018, the retention allowance will not constitute to be a segment of salary, which could be claimed by the Appellant before the liquidator by filing the Interlocutory Application, which has been rejected by the impugned Order. 8. The Ld. Counsel for the Appellant, in support of its contention, has relied upon a Judgment as reported in 1981 (volume 2), SCC page 147, in the matter of Managing Director, Chalthan Vibhag Sahakari Khand Udyog, Chalthan Vs. Government Labour Officer, and he has referred to the observations, which has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 other workmen/employees of the corporate debtor during the CIRP who actually have not worked and/or performed their duties when the corporate debtor was a going concern, shall not be included automatically in the CIRP costs. Only with respect to those workmen/employees who actually worked during CIRP when the corporate debtor was a going concern, their wages/salaries are to be included in the CIRP costs and they shall have the first priority over all other dues as per Section 53(1)(a) IBC. Any other dues towards wages and salaries of the employees/workmen of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aspect of payment of the retention allowance which is a subject 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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