Twin Conditions To Be Satisfied: Sc On Claims Of Wages/Salaries


A important judgement was handed by Hon’ble Supreme Court docket on 19th April 2022 in matter of Sunil Kumar Jain and some others versus Sundaresh Bhatt and many others[1] wherein Supreme Court has clarified the intricacies that arose on the claim for payment of wages/salaries just before Corporate Insolvency Resolution Process (CIRP) all through CIRP and in liquidation of a Company Debtor.

Transient Qualifications

The National Firm Law Appellate Tribunal dismissed an enchantment most well-liked by the workmen/employees of M/s ABG Shipyard Limited (‘Corporate Debtor’) from Countrywide Firm Legislation Tribunal’s buy denying aid to them with regard to their assert relating to salary for the period of time involving ‘Corporate Insolvency Resolution process’ (CIRP) and the time period prior thereto. Aggrieved by the explained order, workmen/workforce desired attractiveness right before the Hon’ble Supreme Court.



The challenge dealt was with respect to wages/ salaries of the workmen/ staff members during the CIRP period of time and the amount thanks and payable to the respective workmen/ personnel in direction of Pension Fund, Gratuity Fund and Provident Fund.



The appellants i.e., workmen/ personnel contended that the salaries/wages and the dues payable to them all through the CIRP period of time will be experienced as CIRP charges below Segment 5(13) of the Insolvency and Individual bankruptcy Code, 2016 (IBC) and are liable to be disbursed even prior to the amount dispersed underneath Segment 53 of the IBC. It was further submitted that the provident fund, gratuity and pension fund amounts stay outside the house the liquidation below Portion 36(4) of the IBC.

On the other hand, the respondent contended that the wages and salaries claimed by the appellants who have done no perform in the course of the CIRP period of time and have not assisted the Resolution Experienced (RP) /Liquidator for the duration of the CIRP, would not tumble within the parameters of CIRP charges within the definition of Section 5(13)(c) of the IBC.



Wage/salaries of only these workmen/staff who in fact worked in the course of the CIRP are to be involved in the CIRP fees:

The Hon’ble Supreme Court, referred to the pursuing provisions of the IBC:

and noticed that while contemplating the statements of the worried workmen/staff members in the direction of the wages/salaries payable all through CIRP, 1st of all it has to be founded and proved that through CIRP, the Company Debtor was a likely issue and that the worried workmen/staff members in fact labored whilst the Corporate Debtor was a going problem all through the CIRP. Thus, two phase method have been developed. An exclusion has also been developed wherein the wages and salaries of all other workmen/staff of the Corporate Debtor throughout the CIRP who truly have not worked and/or done their duties when the Corporate Debtor was a going concern, shall not be included automatically in the CIRP prices. Further, the wages and salaries which are involved in the CIRP costs will have first priority in conditions of Portion 53 (1) (a) of IBC and all other wages/ salaries which are not provided in CIRP price shall have to be ruled by Portion 53(1)(b) and Part 53(1)(c) of the IBC.

It depends on the facts of each individual circumstance.

A further contention elevated by the appellants was that the RP is under mandate to manage the functions of the Corporate Debtor as a going problem and consequently it is to be considered that for the duration of CIRP, the Corporate Debtor was a likely problem, managed and/or operated as a likely issue. The Hon’ble Supreme Court observed that it relies upon on info of just about every case and it are not able to be presumed that the Corporate Debtor is a going worry for the duration of the CIRP in all instances.

Outright security to workmen’s dues underneath provident fund, gratuity fund and pension fund.

On the concern of provident fund, gratuity fund and pension fund, the Hon’ble Supreme Court observed that Segment 36(4)(iii) of the IBC especially excludes “all sums due to any workman or personnel from the provident fund, the pension fund and the gratuity fund”, from the ambit of “liquidation estate assets” and thus liquidator shall not have any claim over this kind of money.


In the five several years from its enactment of IBC, the Hon’ble Supreme Court has adjudicated upon different matters below the IBC and furnished certainty on interpretation of vital concepts under it. These developments have enriched the jurisprudence of insolvency in the nation.  The present-day judgement propounded by Hon’ble Supreme Court docket clarifies the placement of workman/staff and sets the legislation obvious about promises towards wages and salaries for the interval all through CIRP can only be included in the CIRP fees if it is proven that the IRP/Resolution Specialist managed the operations of the Company Debtor as a Heading Worry in the course of the CIRP and that the concerned workmen/staff members in fact worked all through the CIRP and not or else.

  • Area 5 (13) (c) on CIRP Expenditures include things like
    Any fees incurred by RP to hold Company Debtor as ongoing issue.
  • Part 20 (1) on Administration of Opertations of CD
    Administration of Opertations of CD: IRP/ RP to make all endeavour to secure and protect the benefit of the residence and control the functions of the Corporate Debtor as ongoing problem
  • Segment 36 (4) (iii) on Dues to workmen/employees not section of Liquidation Estate
    In forming aspect of Liquidation Estate belongings, All sums thanks to any workmen or personnel from the provident fund, the pension fund and the gratutity fund shall not be incorporated.
  • Portion 53 Distibution of Assets on purchase of priorty
    Firstly the CIRP and liquidation expenses will be compensated,
    On Next priorty workmen’s dues for the period of time of 20- 4 months previous the liquidation commencemennt day, then to secured
    On third priorty to secured credtiors
    On fourth priorty wage and any unpaid dues owed to workers other than workmen for the period of time of twelve months preciding the liquidation commencement day.


Ravi Charan Pentapati, Associate, Backlink Lawful

Niharika Agarwal, Affiliate, Link Legal


The contents of this post are for normal information and facts and discussion only and is not meant for any solicitation of work. This short article should not be relied on as a authorized guidance or view.

[1] CIVIL Attraction NO. 5910 OF 2019


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