Manoj Kumar Mishra Vs Employees Provident Fund Organisation

Kuldip Kumar Kareer, Member (Judicial))

The above captioned I.A. 2620 of 2022 is filed by Mr. Manoj Kumar Mishra, Resolution Professional of Trimurti Foodtech Pvt. Ltd. under Section 60(5) of the Insolvency and Bankruptcy Code 2016 (“Code”) seeking following reliefs:

a. To be pleased to allow this Application u/s 60(5) of the Code;

b. To declare the Impugned Order as passed by the Respondents during the moratorium period as null and void in view of the existing moratorium of the Corporate Debtor;

c. To allow the Applicant in his capacity as Resolution Professional not to consider the order as passed by the Respondents during the moratorium period;

d. To be pleased to pass an order restraining the Respondents from passing any further order in continuance to the parallel proceedings.

The Applicant submits that pursuant to a complaint made by a Contract Employee, the Respondents had initiated an enquiry against the Corporate Debtor under Section 7 - A of the Employees Provident Funds & Miscellaneous Provisions Act, 1952.

On 04.02.2020, before the commencement of the CIRP, the Respondents issued a notice to the Corporate Debtor in the said Inquiry and claimed a total amount of Rs. 37,35,360/-.

The Applicant was appointed as the Interim Resolution Professional of the Corporate Debtor vide the order of the Hon'ble NCLT dated 11.08.2021 whereby the Corporate Debtor was admitted into CIRP and the moratorium period commenced.

The Applicant upon being apprised about the notice dated 04.02.2020 sent by the Respondent before the commencement of CIRP, has suo moto taken into consideration the outstanding amount of Rs. 37,35,360/- in a bona fide manner, even though the Respondents have not submitted any claim till date. The said amount of Rs. 37,35,360/- has been imposed to be paid to the employees in the Resolution Plan which has been submitted for approval.

On knowing that the Respondent was still persisting in carrying out the parallel proceedings, the staff of the Applicant attended the online hearing of the Respondent on 21.10.2021, sent a mail on 22.10.2021 and even made a submission vide a letter dated 28.12.2021 praying for the non-continuance of the parallel proceedings taking into consideration the moratorium period as the Applicant had already taken into consideration the amount liable to paid as PF and had included the same in the Information Memorandum.

However, the Respondents rather than halting the parallel proceedings, apprised the Applicant about the Final Order dated 28.07.2022 as passed by the Respondents during the moratorium period. Therefore, this Application w/s 60(5) of the Code by the Applicant in his capacity as Resolution Professional praying for setting aside the order dated 28.07.2022 and directing the Respondents to stop their parallel proceedings. Hence this Petition.

Findings:-

We have heard the Counsel appearing for the Applicant and perused the records.

A perusal of the order of the Assistant EPFO Commissioner dated 28.07.2022 reveals that on the basis of Enforcement Officers verification of the records report dated 14.07.2022 and other documents filed during the Inquiry, total dues of Rs. 37,35,360/- for the period from 01/2010 to 08/2019 were assessed as payable and it was further stated in the order that the establishment, i.e. the Corporate Debtor should remit the dues within the stipulated period failing which recoveries as per provisions contained in Section 8B to 8G of the Employees Fund and Miscellaneous Provisions Act, 1952 should be initiated.

In this Application none has appeared on behalf of the Respondent nor any reply has been filed.

Considering the fact that the amount of Rs. 37,35,360/- has been accounted for and made part of the Resolution Plan which will be paid to the Employees entitled for the same, practically the order of the EPFO Commissioner dated 28.07.2022 is being complied with in letter and spirit. Even otherwise, the amount referred to in the order dated 28.07.2022 pertains to pre-CIRP period. That being so and considering the fact that the order was passed after the commencement of the CIRP process, in our considered view, the EPFO Commissioner should not separately enforce the order which is being complied with by way of the Resolution Plan.

In the light of the above observations, the Application is Allowed and disposed of with an order that EPFO Commissioner will not separately execute the order dated 28.07.2022. However, the Resolution Applicant will be under an obligation to satisfy PF Claims of the workers/employees up to the CIRP process, if any, other than those covered under the amount of 37,35,360/-.