NCLT Kolkata (2025.01.08) in Employees Provident Fund Organisation vs Incab Industries Limited & Anr. [(2025) ibclaw.in 75 NCLT, I.A. No. 1400 of 2023 In C. P. (IB) No. 1684/KB/2018] held that;.
However, no precedent or provision has been placed before thus which emanates that the penal interest, penalty, damages and any other costs that may have been imposed by the EPFO shall also be treated as the assets of the corporate debtor and the same has to be provided in priority.
In view of forgoing discussions, we have found that non-payment of full provident fund amount to the workmen and employees and the gratuity payment till the insolvency commencement date amounts to noncompliance of provisions of Section 30(2)(e) of the Code.
The Liquidator has no domain to deal with any other property of the corporate debtor, which is not the part of the Liquidation Estate. In a case, where no fund is created by a company, in violation of the Statutory provision of the Sec. 4 of the Payment of Gratuity Act, 1972, then in that situation also, the Liquidator cannot be directed to make the payment of gratuity to the employees because the Liquidator has no domain to deal with the properties of the Corporate Debtor, which are not part of the liquidation estate.
Moreover, Section 36 (a) (iii) of the I&B Code states that all sums due to any workman or employees from the Provident Fund, Gratuity Fund and Pension Fund need to be excluded. Sums due are liabilities of the corporate debtor and obviously Section 36 (4) which deals with assets that are required to be kept out of the liquidation assets may not be talking about liabilities that are and required to be kept out of liquidation assets.
Therefore, this provision contemplates availability of funds from which sums are required to be paid out. If no funds are available, the question of keeping Provident Fund, Gratuity Fund and Pension Fund outside the purview of the liquidation assets does not arise.
If funds are not available, claims made within the stipulated period as per public announcement or any subsequent extended period, if granted by this Adjudicating Authority, whichever is later, to be paid in full.
If claims contain damages imposed under Section14(b) of EPF Act, after the initiation of CIRP the same need not be paid.
If the claims contain damages imposed prior to the initiation of CIRP of the corporate debtor, the same may be waived off by the Central Board under Section 32(b) of the EPF Scheme, 1952 if applied for.
Excerpts of the Order;
# 1. The Court congregated through hybrid mode.
# 2. Heard Ld. Counsels for the parties.
# 3. This application has been preferred under Section 60(5) of the Insolvency and Bankruptcy Code, 2016, for brevity “I&B Code”/ “IBC”, by Employees Provident Fund Organisation (hereinafter referred to as “Applicant”) against Incab Industries Limited & Ors. (hereinafter referred as “Respondents/Corporate Debtor and the Applicants”) in its application, prays for the following reliefs:
“a. Delay in submission of claim on the part of the Applicant against the Respondent No. 1 is not to be treated as bad in law since the Resolution Profession should keep the claim of EPFO segregated as it is the first charge.
b. Order may be issued upon the Respondent No. 2 being the Resolution Professional herein, to admit the claim of the Applicant submitted against the Respondent No. 1.
c. Ad-interim orders in terms of the prayers above;
d. Pass any other order/direction as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.” Factual Matrix:
# 4. The corporate debtor Incab Industries Limited was admitted into Corporate Insolvency Resolution Process on 07.08.2019 vide Order dated 07.08.2019 in C.P. No. 1684/KB/2018 and the same Order Mr. Shahshi Agarwal was appointed as resolution professional.
# 5. On 21.10.2020, the Employees Provident Fund Organisation (EPFO), regional office Jamsedpur filed a claim of Rs. 164,63,21,103/- in Form C as mentioned in CIRP Regulation, 2016.
# 6. On 05.11.2020, the Employees Provident Fund Organisation regional office Kolkata filed a combined claim of Rs. 192,68,96,086/- which includes dues payable to Jamsedpur office of EPFO as well as to the Kolkata office of EPFO. On 04.06.2021 the Hon’ble NCLAT in Company Appeal No. 348 of 2022 directed this Tribunal to appoint a new resolution professional. And accordingly, on 16th June Mr. Pankaj Kumar Tibrewal was appointed as new Insolvency Resolution Professional instead of Mr. Shahshi Agarwal. On 16th November, the EPFO office, Jamsedpur again filed a claim of Rs. 164,63,21,160/- and on the very next day the resolution professional communicated to the applicant that he is not in a position to accept further new claims from the creditors as they have already received resolution plan from the prospective applicants. In spite of this communication again on 22.06.2022, the Employees Provident Fund Organisation, Kolkata office had requested the resolution professional to release the combined claim of Jamsedpur and Kolkata to the tune of Rs. 192,68,96,086/-.
Ld. Counsel for Applicant:
# 7. Ld. Counsel for applicant submitted that the claims submitted by the applicants have been arbitrarily rejected on the ground that the respondents had already received resolution plans.
# 8. Ld. Counsel submits that claims such as provident fund which are statutory in nature, can be admitted before the approval of resolution plans by the CoC. In fact, the Ld. Counsel even submits that the claims can be admitted even after approval of CoC any time before the approval of this Adjudicating Authority. Ld. Counsel for Respondents:
# 9. Ld. Counsel appearing on behalf of the respondents submits that he was on in receipt of the alleged claim of the applicant in time and consequently, cannot be entertained at this stage. The CIRP is a time bound process, and the applicant was sleeping over his rights and now trying to delay the CIRP through this application in utter disregard to the objective of this Tribunal.
# 10. It was submitted that the respondent was never in receipt of the alleged claim of the applicant to the tune of Rs. 192,68,96,086/- while admitting that the earlier liquidator has received a claim from EPFO, Jamsedpur in Form C to the tune of Rs. 164,63,21,103/-.
# 11. Ld. Counsel submits that the respondent diligently without any delay communicated to the regional office Jamsedpur that the claim provided by them pertains to the period of liquidation whereas the Apex Court has re-initiated the CIRP of the corporate debtor vide Order dated 04.06.2021 and therefore, respondent was requested the regional office of the applicant to submit their claim in Form B which was never filed.
# 12. Ld. Counsel submits that resolution plans were received on or before 16.11.2021, which was the last date of receipt of the plan. The respondent immediately informed the EPF office via e-mail dated 18.11.2021 that he shall not be in apposition to accept further new claims form the creditor as they have already received resolution plan from perspective resolution applicants. Analysis and findings:
# 13. We find that vide an email dated 16.11.2021, the EPFO Jamshedpur requested the new appointed RP Mr. Tibrewal to consider its claim, and in reply, the RP the informed the EPFO Jamshedpur to file its claim in Form B under CIRP which has been re-initiated by the virtue of the order of Hon’ble NCLAT on 04.06.2021. We find that vide email dated 18.11.2021, the RP informed the EPFO that they shall not be in position to accept further new claims from the creditors as they have already received plans from the prospective resolution applicant.1
# 14. We find that on 02.09.2022, almost long after one year from the date of RP’s email of ‘not be in position of accept further new claim from the creditors’, the EPFO Jamshedpur has filed its claim before the RP in prescribed manner.
# 15. We find that the resolution plan was approved by the CoC in its 22nd meeting held on 23.06.2022 and the RP filed an application on 02.07.2022 being I.A. 646/KB/2022 for the final approval of the resolution plan.
# 16. We have already taken a view another I.A. being No. 1954(KB) of 2023 filed by EFPO, Government of India that:
“23. From the enumerations supra, we are of the view that the wages/salaries of the workmen/employees of the Corporate Debtor for the period during CIRP can be included in the CIRP costs. The Provident Fund, Gratuity and Pension dues have been given priority as they are outside the Liquidated Estate assets as per Section 36(4)(a)(iii) of IBC. However, no precedent or provision has been placed before thus which emanates that the penal interest, penalty, damages and any other costs that may have been imposed by the EPFO shall also be treated as the assets of the corporate debtor and the same has to be provided in priority.’
“24. In view of above rulings, we condone the delay in filing the claim by the applicant and direct that actual provident fund dues (employees and employers) contribution with interest fixed by the government from time to time is payable in full, whereas, penal interest, penalty, damages if any that might have been imposed by the EPFO will have to be treated as an unsecured operational debt and be dealt as per Section 30(2)(b) of the IBC. This is because such penalties or damages etc. imposed cannot be treated as the asset of the EPFO in the books of the corporate debtor.’
“In view of above, we direct resolution professional to verify the claim and accordingly, admit the claim and apprise CoC and SRA for necessary approval/modification in the plan as may be required. Accordingly, this I.A. No. 1954 of 2023 stands disposed of.”
# 17. Further, we would rely on Jet Aircraft Maintenance Engineers Welfare Association Vs. Ashish Chhawchharia, Resolution Professional of Jet Airways (India) Ltd. & Ors. reported at MANU/NL/1256/2022, where the Hon’ble NCLAT has held that:
“132. With regard to payment of gratuity to the workmen and employees, we are of the view that workmen and employees are entitled to gratuity payments, due to them before the insolvency commencement date. Any claim towards gratuity payment after insolvency commencement date is not admissible, since the workmen and employees having demerged into AGSL and their services were not deemed to have been terminated. Thus, gratuity payment under the provisions of Payment of Gratuity Act, 1972 is confined only to the date of insolvency commencement date and Successful Resolution Applicant is also liable to make the said payment. It goes without saying that with regard to payment of gratuity to workmen, any amount towards gratuity paid under the Resolution Plan is liable to be deducted and adjusted.
133. In view of forgoing discussions, we have found that non-payment of full provident fund amount to the workmen and employees and the gratuity payment till the insolvency commencement date amounts to noncompliance of provisions of Section 30(2)(e) of the Code. However, in the facts of the present case, all other parts of the Resolution Plan have not been found to infirm in any manner, we do not find any case for interfering with the order approving the Resolution Plan. The ends of justice will be served in issuing direction to Successful Resolution Applicant to make payment of provident fund and gratuity to the workmen and the employees as directed above.” (Emphasis Added)
# 18. Further, the Hon’ble Apex Court in Sunil Kumar Jain and Ors. vs. Sundaresh Bhatt and Ors. reported in MANU/SC/0499/2022, has held that:
“14. In view of the above and for the reasons stated above, it is held as under:
i) that the wages/salaries of the workmen/employees of the Corporate Debtor for the period during CIRP can be included in the CIRP costs provided it is established and proved that the Interim Resolution Professional/Resolution Professional managed the operations of the corporate debtor as a going concern during the CIRP and that the concerned workmen/employees of the corporate debtor actually worked during the CIRP and in such an eventuality, the wages/salaries of those workmen/employees who actually worked during the CIRP period when the resolution professional managed the operations of the corporate debtor as a going concern, shall be paid treating it and/or considering it as part of CIRP costs and the same shall be payable in full first as per Section 53(1)(a) of the IB Code;
ii) considering Section 36(4) of the IB code and when the provident fund, gratuity fund and pension fund are kept out of the liquidation estate assets, the share of the workmen dues shall be kept outside the liquidation process and the concerned workmen/employees shall have to be paid the same out of such provident fund, gratuity fund and pension fund, if any, available and the Liquidator shall not have any claim over such funds.” (Emphasis Added)
# 19. Further, in Savan Godiwala vs. Apalla Siva Kumar reported in MANU/NL/0098/2020, the Hon’ble NCLAT observed that:
“Thus it is the settled position of law, that the provident fund, the pension fund and the gratuity fund, do not come within the purview of 'liquidation estate' for the purpose of distribution of assets under Section 53 of the Code. Based on this, the only inference which can be drawn is that Pension Fund, Gratuity Fund and Provident Fund can't be utilised, attached or distributed by the liquidator, to satisfy the claim of other creditors. Sec. 36(2) of the I B Code 2016 provides that the Liquidator shall hold the Liquidation Estate in fiduciary for the benefit of all the Creditors. The Liquidator has no domain to deal with any other property of the corporate debtor, which is not the part of the Liquidation Estate. In a case, where no fund is created by a company, in violation of the Statutory provision of the Sec. 4 of the Payment of Gratuity Act, 1972, then in that situation also, the Liquidator cannot be directed to make the payment of gratuity to the employees because the Liquidator has no domain to deal with the properties of the Corporate Debtor, which are not part of the liquidation estate.” (Emphasis Added)
# 20. Further in Commissioner of Income Tax (TDS-1), Mumbai vs. Sundaresh Bhat and Ors. reported in MANU/NL/0726/2024, the Hon’ble NCLAT has held that:
“14. Now that we find that the RP in inviting claims had adhered to the statutory provisions, we now proceed to examine whether the Appellant had made appropriate endeavours to file their claims within the prescribed time limit. When we peruse the records, we find that the Appellant did not file its claims within the period which was stipulated in the Public Announcement. Nor did it file its claims within the period of 90 days from the insolvency commencement date. From a plain reading of the CIRP Regulations, RP can accept claims as per extended period as provided in Regulation 12(1) of CIRP Regulations. After the lapse of extended period of 90 days of the insolvency commencement date, the RP is not obliged to accept any claim. Prima-facie, the said CIRP regulation does not provide any discretion to RP for admitting their claim after the extended period.” (Emphasis Added)
# 21. Moreover, Section 36 (a) (iii) of the I&B Code states that all sums due to any workman or employees from the Provident Fund, Gratuity Fund and Pension Fund need to be excluded. Sums due are liabilities of the corporate debtor and obviously Section 36 (4) which deals with assets that are required to be kept out of the liquidation assets may not be talking about liabilities that are and required to be kept out of liquidation assets.
# 22. Therefore, this provision contemplates availability of funds from which sums are required to be paid out. If no funds are available, the question of keeping Provident Fund, Gratuity Fund and Pension Fund outside the purview of the liquidation assets does not arise.
# 23. We find that the corporate debtor was before BIFR from 1999 to till the BIFR was in force. Later on, the corporate debtor was admitted in CIRP and subsequently, was put in liquidation vide Order dated 07.02.2020, by this Adjudicating Authority. The order dated 07.02.2020, for liquidation, was assailed higher up and the same was set aside by the Hon’ble NCLAT on 04.06.2021, and consequently, the same was reversed. We find that EPFO filed its claim first on 21.10.2020 in form C, and after reverse the Order of liquidation, the EPFO issued an email on 16.11.2021 to the later RP for considering its claim, albeit not in form B. The plan of Vedanta was approved by the CoC.
# 24. As, we have already condoned the delay in filing the claim of the EPFO in I.A. 1954/KB/2023, thus, we are not taking any contra view in the very particular matter. Hence, considering the judgments cited supra, we direct the RP that:
a) Resolution plan should provide for full payment of PF and Gratuity from funds, if any available, earmarked separately, regardless of delay in filing claim.
b) If funds are not available, claims made within the stipulated period as per public announcement or any subsequent extended period, if granted by this Adjudicating Authority, whichever is later, to be paid in full. In this case, we have condoned the delay in view of the reason indicated in para 23 of this order
c) If claims contain damages imposed under Section14(b) of EPF Act, after the initiation of CIRP the same need not be paid.
d) If the claims contain damages imposed prior to the initiation of CIRP of the corporate debtor, the same may be waived off by the Central Board under Section 32(b) of the EPF Scheme, 1952 if applied for.
# 25. In view of the above, the application I.A. (IB) No. 1400/KB/2023 is disposed of. 26. Certified copy of this order, if applied for with the Registry be supplied to the parties in compliance with all requisite formalities.
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