TaxTMI 
TaxTMI 
2016 (2) TMI 435
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....d he continued to work with the Respondent Company as Company Secretary. The Respondent Company has paid salary to the petitioner upto January, 2013. The petitioner requested the Respondent Company to release his salary since February, 2013 by way of numerous e-mails, but to no avail. The petitioner served the Managing Director of the Respondent Company with the registered letter dated 10.7.13 requesting to clear his arrear of salary for the period February, 2013 to July, 2013. The notice served was not responded, in these circumstances, the petitioner sent a legal notice through his counsel calling upon the Respondent Company to pay a sum of Rs. 1,58,355/- towards the salary for the month from February, 2013 to July, 2013. The notice was responded by the Respondent Company vide reply dated 8.8.13, taking the stand that the resignation of the petitioner was accepted and he was permitted to leave the company after a month. According to the petitioner, he was continued in service and was authorized to sign the Audited Balance Sheet and Profit and Loss Account of financial year 2011-12 on behalf of the Respondent Company as per Section 215 (1) (ii) of the Act on 6.9.12 and thereafter,....
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.... filing Form No.32 after resignation. It is submitted that on account of delayed statutory compliance which is caused on account of malafide omission of the petitioner, the Respondent Company has suffered penalty. The factum of the financial condition of the Respondent Company being not good, is specifically denied. It is also denied that the Respondent Company is in the process of disposing off and/or siphoning its assets and the creditors of the Respondent Company are facing any kind of liquidity crunch or otherwise. It is submitted that Bank of Baroda has sanctioned additional term loan to the Respondent Company for expansion. 4. By way of rejoinder to the reply, the petitioner has claimed that as per the version of the Respondent Company, Form No.32 was filed in November, 2013 and therefore, the petitioner is entitled for salary at least for ten months. It is submitted that the amount which is due and not paid becomes a debt and therefore, the petitioner, whose due salary has not been paid, is a creditor of the Respondent Company. It is submitted that the stand taken by the Respondent Company is self contradictory inasmuch as, on one hand, it has taken the stand that the resig....
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....nuance of the petitioner in service after resignation till 6.3.13 is not even disputed and admittedly, the salary for the month of February, 2013 has not been paid to the petitioner. Learned counsel submitted that admittedly the Form No.32 was submitted by the Respondent Company in the month of November, 2013 and therefore, for all intent and purposes the petitioner has to be treated in continuance employment of the Respondent Company till November, 2013. Drawing the attention of the court to the documents annexed with the rejoinder, learned counsel submitted that the Respondent Company is not in good financial condition and therefore, it deserves to be wound up in terms of provisions of clause (f) of Section 433 of the Act as well. 7. On the other hand, the counsel appearing for the respondent reiterating the stand taken in the reply to the petition, submitted that after resignation, the petitioner had already joined another company and he used to visit the Respondent Company only intermittently for finishing the pending projects and/or completing the formalities uptil January, 2013. It is submitted that admittedly, the petitioner has already been paid the outstanding dues upto t....
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....n service upto the month of July, 2013 and thus, the salary of the petitioner being due for the period from the month of March, 2013 to July, 2013 is not proved by any cogent evidence on record. 11. There is yet another aspect of the matter. The Respondent Company has taken the specific stand that the petitioner while hoodwinking the Respondent Company into believing that the petitioner wants to pursue higher studies and will not be able to give time, was rendering professional service to another Company in Bhilwara in violation of provisions of Company Secretaries Act, 1980. 12. Replying the averments made by the Respondent Company in its reply by way of rejoinder, the petitioner has taken the stand he was never employed as Company Secretary by any other Company after the resignation on 7.8.12 as the Company failed to file Form 32 till 11.11.13, but at the same time, it is categorically admitted by the petitioner that during the period February-April, 2013, he has rendered consultation services to the Company named RCM, which is not violative of Schedule I-III of the Company Secretaries Act, 1980. 13. Thus, on the facts and the circumstances of the case, on the basis of the mat....