Pramod Kumar vs Pawan Hans Ltd. & Ors

[Arising out of Order dated 8th May, 2019 passed by National Company Law Tribunal, New Delhi Bench in Company Petition 210/213 (b) ii/ND/2018]

IN THE MATTER OF: Before NCLT Before NCLAT

Pramod Kumar Applicant/Petitioner Appellant R/o B-16, Apoorva Apartments, Plot No. 14, Sector 5 Dwarka-I, New Delhi - 110075. Versus 1. Pawan Hans Ltd. Respondents Respondent No.1 R/o C-14, Sector-1, Block-C 1 to 15 Noida (U.P.) 201301 (Through Chairman & M.D.)

2. Krishan Kumar Respondent No. 2 Foreman (Painter) B-506, Karor C.G.H.S. Ltd. Plot -39C, Sec-6, Dwarka-I, ND-75

3. Satnam Singh Respondent No. 3 H.O.D (Engineering) Northern Region 3095, C-3 Block, Vasant Kunj, New Delhi - 110070.

4. Ashok Kumar Yadav Respondent No. 4 Joint General Manager (H.R. & R.D) C-14, Sector-1, Block C Noida (U.P.) 201301

5. M. S. Boora Respondent No. 5 General Manager (Air-Safety) W.R OSD to C.M.D. Flat No. 1205, Sector C1 Vasant Kunj, New Delhi - 110070

6. J. P. Srivastava Respondent No. 6 Aircraft Maintenance Engineer-II (Retd.) G-203/S-I, Dilshad Colony, Delhi -110095

7. T. D. Thomas Respondent No. 7 Chief Aircraft Engineer Juhu Aerodrome 2

S. V. Road, Vile Parle (West) Mumbai - 400056 (Maharasthra)

8. Vijay Pathyan Respondent No. 8 Joint General Manager C-31, Aimo Classic Apartments Plot No. 11, Sector - 22, Dwarka New Delhi - 110077

9. V. C. Katoch Respondent No. 9 H.O.D(Maintenance Repair Organization) CMC, 4-1801, Capetown EC-74, Noida - 201301 (UP)

10. C. Hari Kumar Respondent No. 10 Chief Aircraft Engineer (Retd.) Flat No. E-501, Rangoli Vasant Utsav Thakur Village Kndivali (East), Mumbai.

11. P. S. Das Respondent No. 11 Chief Aircraft Engineer Flat No. 406, Naveen Kunj Aptts, Pocket -6, Naseerpur New Delhi - 110045

12. Subroto Chandra Respondent No. 12 Chief Aircraft Engineer A-702, Aditya Celebrity Homes Ltd. Sector-76, Noida- 201301 (UP)

13. K. B. Malhotra Respondent No. 13 Head of Finance Sangam Apartments B-33, Plot No. 23, Sector -9, Rohini, Delhi - 110085

14. Ashish Yadav Respondent No. 14 Head Internal Audit C-14, Sector-1, Block-C Noida - 201301 (UP)

15. Ashok Kumar Dang Respondent No. 15 Joint General Manager(Quality Manager) Sector-C, Pocket No.2, Flat No. 2087, Vasant Kunj, New Delhi.

For Appellant: Mr. S. S. Sastry with Mr. Sunil Sachdeva, Advocates. For Respondents: -

Company Appeal (AT) No.140 of 2019 3

JUDGEMENT

(12th March, 2020) A.I.S. Cheema, J. :

1. The Appellant Original Petitioner, claims to be employee of the

Respondent No. 1 Company "Pawan Hans Ltd.". He filed petition before the

Learned National Company Law Tribunal, New Delhi Bench (No. 210/213

(B) (ii)/ND/2018) initially against the Respondent No. 1 company and

Respondent No. 2, another employee who is stated to be foreman (painter).

As he had asked for various reliefs against several officers of the

management of company, he amended the petition to add Respondent Nos.

3 to 15, senior officers of the company, including retired senior

management officials.

2. The Appellant sought to invoke powers of the NCLT under

Section 213 (b) (ii) of the Companies Act 2013 (Act in brief).

3. In short, the Appellant claimed before the NCLT that he had

joined the Company in 1988 as helper (technical) and was now working as

aircraft technician since his promotion on 01.07.2013. He claimed that he

had been working diligently and in an exemplary manner. Appellant

claimed that the Respondent No. 1 Company is Government Company

registered under Section 617 of the Old Companies Act 1956 and was in

business of providing helicopters and sea planes to the clients. Appellant

pointed out that to fulfill the vision and mission of the company, the

Respondent Company was maintaining full-fledged "maintenance and

Company Appeal (AT) No.140 of 2019 4

operation" department and had employed staff for the in-house service and

maintenance of helicopters and sea planes for which huge budget from the

revenues was allocated every year. Appellant claimed before NCLT that the

Company has operation manual (standard operating procedures) approved

by Director General of Civil Aviation which is the guiding manual for

upkeep of helicopters of the companies.

4. Appellant claimed that sometime in 2017, he came to know

that there were lot of irregularities going on in the Company and the funds

were being squandered by few officers and thus wrongful loss was being

caused to the Company. He came to know that some of the officers in

collusion with the Respondent No. 2 a foreman (painter) in the company

were involved in siphoning-off funds of the company. He claimed that there

were a modus operandi to deploy the Respondent No. 2 a painter in

technical jobs involving "maintenance" of helicopters for which according to

the Appellant Respondent No. 2 was not technically qualified or competent

or authorized to be deployed, but still he was being wrongfully assigned

such technical jobs which would put the life of company clients and crew

flying the helicopters to great risks. Appellant claimed that the Respondent

No. 2 was not qualified or licensed or authorized but he was being paid

hefty amounts "overtime" and "additional benefits" besides hotel expenses

& to/fro airfare etc. Appellant claimed that he started collecting pay slips of

the Respondent No. 2 and other documents and collected evidence to

highlight this scam and that he had reported the fact to senior officials in

the company but nobody took any action. He claimed that he had sent

representation to even the Minister of Civil Aviation and the Hon'ble

Company Appeal (AT) No.140 of 2019 5

Minister had directed one Sh. B.C. Behra to conduct inspection/enquiry.

Appellant claimed that even this inspection/ enquiry was just an eyewash

and key elements of the scam were put under the carpet. According to him

no action was taken and the said "Loot" of the funds of the company

continued. According to him till he moved the NCLT there was estimated

loss of Rs.50/- Lakhs and he could demonstrate overtime being paid to

Respondent No. 2 to the extent of Rs.19,20,000/- excluding hotel stay to

and fro airfare.

5. Copy of the Application (Annexure A) which was filled before

the NCLT shows the Appellant giving various particulars of overtime paid to

the Respondent No. 2 for periods starting from October, 2009 till May,

2018. The Appellant prayed that the affairs of the company should be

investigated by an Inspector for misfeasance, misappropriation and

mismanagement of Company's funds and sought punishment of every

officer who may be in default or responsible for the mismanagement in a

fraudulent manner.

6. The Learned NCLT took into consideration the case put up by

the Appellant and considered the defense of the respondents and found

that the petition was mala fide and total abuse of the process of law and

holding the same to be frivolous petition dismissed the same with costs of

Rs.50,000/- to be paid by the Appellant in Prime Minister's Relief Funds.

7. Aggrieved by such Impugned Order dated 08.05.2019, present

Appeal has been filed.

Company Appeal (AT) No.140 of 2019 6

8. When the Appeal came up before us we had raised question

before the Appellant if an employee of the Respondent No. 1 - a Public

Sector Undertakings is eligible to file application under Section 213 (b) (ii)

of the Companies Act for the grounds as mentioned in the petition.

9. We have heard the Counsel for Appellant. The Learned Counsel

for the Appellant referred to the facts emanating from Petition and

documents and claimed that under Section 213 an application can be

made by any "person" for requesting the NCLT to start an investigation.

10. We have gone through this Appeal and the case which was put

up by the Appellant before the Learned NCLT and the defense which was

taken by the Respondent. The Learned NCLT after going through the

averments made in the pleadings and hearing the arguments advance by

the Counsel, recorded reasons and findings as below:

"8. ...., this Bench does not find any substance for

allowing the prayer made by the petitioner. The entire

petition reeks of a vendetta, with the ire and wrath of the

petitioner channelized against respondent no.2. He

appears to be a disgruntled employee and has filed this

motivated petition. The ground raised to look into

overtime payments made to respondent no.2 for deputing

him on various outstation assignment cannot be alleged

as a collusion between Respondent No.2 and other

respondent who are senior officials. Deputing

Respondent No.2 as a part of the maintenance team is an

Company Appeal (AT) No.140 of 2019 7

administrative job which is best left to those in-charge of

the operation of the company and cannot be questioned

by this Tribunal. We do not find that inclusion of

Respondent No.2 in the maintenance team in any way

amounting to defrauding creditors, members or other

persons. The payments towards overtime and other

reimbursements are not in violation of the company's

policies. The respondents have alleged that the petitioner

himself has been a beneficiary of receiving overtime, a

fact deliberately suppressed from this Court. It is also

submitted that every maintenance team has helpers to

assist the technicians and apart from the petitioner and

Respondent No.2, there have been several other non-

technical hands included in the maintenance team from

time to time. Respondent no.2 is not an isolated

exception to be sent on such assignments. The overtime

or TA/DA is given to employees in accordance with the

rules and regulations of the respondent no.1, a

Government company, whose accounts are subjected to

internal or external audits. There is no finding of any

unauthorized payments in the Audit reports, which again

is impugned by the petitioner.

9. We find the allegations made by the petitioner against

the respondent are without any foundation and are

totally motivated and mala fide. We are also of the

Company Appeal (AT) No.140 of 2019 8

opinion that inclusion of helper in a maintenance team is

an administrative decision, the work of which is totally

controlled and supervised by the AME/Engineer in-

charge. The management appears to be satisfied with

the work of Respondent No.2 and no complaint in respect

of any dereliction of duty has been brought to our notice,

neither has pendency of any complaint been averred

against Respondent No.2 by the petitioner to corroborate

his submissions. The administration of a company

cannot be questioned by the courts on mere allegations of

a disgruntled employee. Payment of overtime does not

tantamount to a scam or siphoning off funds or

mismanagement as alleged. Neither does it tantamount

to causing a wrongful loss to the company or a wrongful

gain to Respondent No.2. Further, payment of

remuneration in the course of normal working of a

company also does not amount to causing a loss to the

members or creditors of Respondent no.1.

10. The present petition, being mala fide, is a total

abuse of the process of law. We note that under the garb

of a concerned employee trying to play the whistle

blower, the petitioner has actually filed the present

petition with ulterior motives, thereby wasting the

precious time of the Bench by engaging in frivolous

litigation. Accordingly, we dismiss this petition with

Company Appeal (AT) No.140 of 2019 9

costs of Rs.50,000/- to be paid by the petitioner to the

Prime Minister's Relief Fund."

11. Relevant part of Section 213 is as under for the purpose of this

Appeal:-

"Investigation into company's affairs in other cases. -

The Tribunal may,

-----

(b) on an application made to it by any other person or

otherwise, if it is satisfied that there are circumstances

suggesting that

------

(ii) persons concerned in the formation of the company or

the management of its affairs have in connection

therewith been guilty of fraud, misfeasance or other

misconduct towards the company or towards any of its

members; or ---

order --- the affairs of the Company to be investigated---''

12. Perusal of the relevant portions of Section 213 show that what

is material is the "satisfaction" of the NCLT that there are circumstances

suggesting that the persons concerned in the management of the affairs of

the company are guilty of misfeasance or other misconducts towards the

company which Appellant claims is fraudulent mismanagement. In the

context of the present matter this is the only relevant aspect. Thus

Company Appeal (AT) No.140 of 2019 10

important is the satisfaction of the Learned NCLT. We find that NCLT has

given reasons for its non-satisfaction, which cannot be said to be baseless.

13. We have also gone through the memo of the Appeal and

Petition/Application which was filed before the NCLT and annexures and

the defense which was up. Going through the material, it appears to us

also that the Appellant has grudge against the Respondent No. 2 employee

regarding overtime and other benefits Respondent No. 2 received in

performing his job over number of years. The allegations made by the

Appellant are quite sweeping in nature. The case put up by the

respondents before Learned NCLT shows that the Appellant was also part

of maintenance team on several occasions and although he is only 8th

standard pass and was appointed as an unskilled worker he had also

received similar benefits. The respondents put up the case before the

Learned NCTL that the teams deployed for carrying out the maintenance

jobs were under the direct supervision of AME/Engineer-in-chief who alone

was incharge and responsible for the job. For such "maintenance and

inspection" the team used to include even non-technical employees for

assistance. Apart from the Appellant and Respondent No. 2 several other

technical personnel and also helpers are included in the maintenance team

deputed for outstation and maintenance assignment and Respondent No. 2

was not an exception. The operation teams required inclusion of helpers for

which they were receiving overtime. Respondents pointed out to Ld. NCLT

that compared with the Appellant, the Respondent No. 2 was rather more

qualified. While the Appellant was only 8th class pass and was appointed as

unskilled worker the Respondent No. 2 was qualified, being a matriculate

Company Appeal (AT) No.140 of 2019 11

with ITI certification with specialization in painting which was ancillary job

and was required to be included in general maintenance team.

Respondents also pointed out that when Respondent No. 2 would be free

from painting work he was also deputed as helper to fully utilize his

services. This is rather required to be appreciated.

14. Considering these factors, it does not appear that the Appellant

has made out any case for investigation. It is not that without utilizing

services overtime benefits were being given. The effort of Appellant to sit in

Judgment over the confidence reposed in Respondent No. 2 by senior

officers cannot be ground to start investigations. We are not ready to

believe that so many senior officers would go out of the way & collude with

Respondent No. 2 not to benefit themselves, but to benefit the foreman.

Nothing is shown in the form of any audit finding fault with the overtime

paid. The Appellant appears to be unhappy with the work of Respondent

No. 2 and the overtime he received. It is not the case that overtime was paid

without doing job. Appellant is unhappy with the action initiated by the

Minister of Civil Aviation and the inspection/enquiry conducted by Sh. B.C.

Behra also.

15. It appears to us that the Appellant failed to bring material

which could invoke satisfaction of existence of circumstances to initiate

action under Section 213 of the Act. The Learned NCLT rightly dismissed

the Application with costs.

Company Appeal (AT) No.140 of 2019 12

16. Going through the Appeal and record put up we do not find

that case is made out to entertain the Appeal. The Appeal is dismissed on

the stage of admission. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member Judicial

[Kanthi Narahari] Member (Technical) HA

Company Appeal (AT) No.140 of 2019