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Judgment
Justice Sharad Kumar Sharma, Member (Judicial):
As these two Company Appeals are based on almost the same questions of facts and Law, for the purposes of brevity, they are being decided together.
The Company Appeal (AT) (CH) (INS) No. 230 / 2024, where the Appellant challenges the impugned judgment dated 09.05.2024, it pertains to invoking of an Appellate Jurisdiction, under Section 42 of the I & B Code, 2016, praying for a direction to the Respondents to pay the wages due as per the orders passed by the learned Labour Court in ID No. 51 / 2014.
Whereas in Company Appeal (AT) (CH) (INS) No. 231 / 2024, the Appellant has put a challenge to the impugned judgment, whereby the Appeal preferred before the NCLT stood dismissed, with regards to the claim, which he agitated before the Liquidator, on 09.03.2022 and the communication of the Liquidator dated 06.05.2022, informing the Appellant about his partial eligibility to be remitted with the claim and in support thereto, the Appellant had filed an Application for additional documents on 25.06.2022, but, the same was refused to be taken on record.
But, since the reason for rejection of both the Appeals being on account of delay in filing of the Appeal, beyond the prescribed period of limitation, under Section 42, they have been disposed of by this common Judgment.
Brief facts of the case are:
The Appellant who claims himself to be the Workmen of the Corporate Debtor was engaged in the services of the Respondent as SME Agent and he worked in the said capacity, till his services were dismissed on 10.12.2012.
It is not a dispute, that being aggrieved against the order of dismissal dated 10.12.2012, the Appellant has approached the Labour Court, by seeking a reference of a dispute under Industrial Disputes Act 1947, which was numbered as ID No. 51 / 2014 and the same was awarded in favour of the Appellant. Consequentially, the dismissal order was set aside by the Labour Court and he was directed to be reinstated with back wages and all benefits, payable to him.
For forcing the said judgment and award of the Labour Court, the Appellant has preferred CP No. 13 / 2022, by invoking the provisions contained under Section 33(c)(2) of the Industrial Disputes Act, which stood allowed, with a direction to pay an amount of Rs.47,47,021/-, along with interest payable on it at the rate of 9%, for the period running from 01.12.2012 to 31.03.2022.
During the intervening period, when the Appellant was contesting the proceedings, before the learned Labour Court, as against his order of dismissal, his employer was brought under Liquidation by the NCLT, Chennai Bench, by way of an order dated 17.02.2022, and as a consequence thereto, when by way of notice of 22.02.2022, when the claims were invited, the Appellant submitted his claim by way of Form II, on 09.03.2022.
The claim, thus raised by the Appellant was considered by the Liquidator and the same was decided on 06.05.2022, stating thereof, that he would be eligible to be paid with the claim of Rs.32,62,132/-.
Being aggrieved as against the partial rejection of his claim by the Liquidator by an order of 06.05.2022, the Appellant has preferred an Appeal, before NCLT, Chennai, under Section 42 of the I & B Code, 2016, on 23.09.2023.
The Appeal against the order of Liquidator is contemplated under Section 42 of I & B Code, 2016, which specifically contemplates that the Appeals under Section 42, could be preferred within 14 days, from the date of the decision of the Liquidator, either accepting or rejecting the claim.
Hence, when he filed the Appeal under Section 42 of the Code, the Appellant has also filed an application in IA (IBC)/ 1928 (CHE) / 2023, seeking Condonation of Delay of 466 days, which has chanced in filing the Appeal.
The reasons for the delay as put forth by the Appellant, before the NCLT were that he could not earlier approach the Tribunal, within the prescribed time, because of the fact that he suffered from monetary loss and was unable to mobilise the fund to enable him to approach the Tribunal, as against the decision of the Liquidator dated 06.05.2022.
The said application came up for consideration, before the NCLT, Chennai Bench, by way of IA (IBC) 1928 & 1927 (CHE) / 2023. The learned Adjudicating Authority took up for consideration of the rival contentions and particularly, the claim raised by the Appellant in the context of the reliefs sought for, for payment of wages and on the basis of other orders passed by the Labour Court in ID No. 51 / 2014 as decided on 25.10.2018 in CP No. 13 / 2022 dated 20.06.2022.
The learned Adjudicating Authority considered the aspect of the claims as raised by the Appellant in the appeal under Section 42, rejection of the claims of the Appellant by the Liquidator apart from the claim admitted to the tune of Rs.32,62,132/- and finally rejected the same on the ground that the Appeal preferred by the Appellant under Section 42 of the I & B Code, 2016, was barred by Limitation, since having been preferred belatedly, after the lapse of about 466 days in filing the Appeal.
It is seen that the reason which has been taken by the Appellant in the application for seeking condonation of delay is exclusively on account of the financial crunch which the Appellant contends without evidence to the contrary that he suffered from financial crisis, because of which he could not approach the Tribunal, prior to 25.09.2023.
The learned Adjudicating Authority after considering the plea taken by the Appellant in the Condone Delay Application, had rejected the same on the basis of the guidelines framed by the Hon’ble Apex Court, in the matters of Majji Sannemma @ Sanyasirao -Vs- Reddy Sridevi & Ors., as reported in 2021 SCC OnLine SC 1260.
The learned Adjudicating Authority observing that owing to the fact, that the reason as assigned in the Condone Delay Application, being not satisfactory and rather being artificially created, dismissed the Appeal under Section 42 of the I & B Code, 2016, on account of being barred by Limitation.
When the instant Appeal was being argued today, the learned Counsel for the Respondent/Liquidator, had contended that much confidence cannot be reposed to the reason, which has been taken by the Appellant for seeking condonation of delay in an Appellate proceedings under Section 42, for the reason being that for the purposes of gratuity and other past service dues, he has already been awarded an amount, under Section 36(4)(a)(iii) to the tune of Rs.3,23,758/- and paid the same to the Appellant in 2022 itself and that would be sufficient enough for the Appellant to meet out the expenditures of preferring the Appeal, before NCLT, Chennai.
Hence, the financial crunch which is the ground taken in the Condone Delay Application, cannot to be taken as to be a satisfactory ground for overcoming the embargo of limitation of 14 days, as prescribed under Section 42 of the I & B Code, 2016, and for the purposes of seeking condonation of an inordinate delay of 466 days, which is too in-ordinant and unexplained.
On account of the reasons which have been assigned by the learned Adjudicating Authority for not accepting the plea taken by the Appellant for seeking condonation of delay, being exclusively based upon the ratio laid down by the Hon’ble Apex Court coupled with the facts also, as it engages consideration in the instant Appeal that the delay of 466 days is in-ordinant and that no reasonable ground has been taken by the Appellant for seeking condonation of delay, the Appeal has been correctly dismissed on the ground of Limitation, which does not call for any interference, by this `Tribunal’, in the exercise of its Appellate Jurisdiction. Thus, Company Appeal (AT) (CH) (INS) Nos. 230 & 231 / 2024, would stand dismissed.