Context:

National Company Law Tribunal passed an Order admitting the matter and appointing Interim Resolution Professional(RP). Hence, the entire affairs of the Company (Corporate Debtor) is being managed by the said Resolution Professional under Section 23 , 27, and 28 of IBC.

Issue :

That, there is no fund available with the Company to disburse the payment of bonus to employees

Whether the Company is liable to pay Statutory Bonus U/s 10 of Payment of Bonus Act, 1965?

1. Under the amended provisions of Payment of Bonus Act, there is a stipulation of minimum bonus of 8.33% of the Wages earned by the employee during the accounting year whether the employer has any allocable surplus in the accounting year or not.

2. As per the information provided, the Hon’ble NCLT has passed an Order  interalia appointed Resolution Professional to manage the operations of the Corporate Debtor during the corporate insolvency process period. The RP shall exercise powers and perform duties under the provisions of IBC which includes the administration of Finance of the Company. While adverting to section 23, 27 & 28 of IBC, the powers are vested with RP to meet the requirement of payment of Bonus to the eligible employees.

3. The Management may approach the RP regarding the issue of Payment of Bonus to the eligible employees whether such fund could be utilised for the welfare of the employees by granting such relief.

4. The Company may approach, the Deputy Commissioner of Labour and Inspector under the Payment of Bonus Act to exempt the Company from the Payment of Bonus U/s 36 of the Payment of Bonus Act, giving justification as to why they are not in a position to comply with the Payment of Bonus Act due to the reason given above.

5. In the recent judgment of the Hon’ble NCLT at Mumbai in M.Umaia Shanmugha Pandyan Vs. EPC Constructions India Ltd. (CP No.1832/IBC/MB/2017, it is held that, RP is empowered to make the payment of statutory bonus to the employees as per the provisions of Payment of Bonus Act (Para No.8 of the said Order).

From the desk of

Adv B.K Ashok

 

 

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