You file a claim with proof on Form D with the interim resolution professional named in the public announcement, by the last date printed in it, fourteen days from the day that professional was appointed. That is the first step of an employer insolvency unpaid salary claim. Salary for the months after the NCLT order is a cost of the process only if the company is run as a going concern and you actually work. Provident fund and gratuity dues stand outside the pool other creditors share. Old arrears join the queue in Section 53 of the Insolvency and Bankruptcy Code, 2016, and a resolution plan must pay you at least what that queue would give.
Part of the employment and labour law practice at S Jain & Attorneys, Bangalore.
This is written for an employee who has just opened the IRP's email: four months of salary unpaid, an EPFO passbook with months showing no deposit, fourteen days to act. A homebuyer's claim has its own form and its own post.
| Your question | The short answer | Where it comes from |
|---|---|---|
| Which form | Form D, "Proof of claim by a workman or an employee". A group files one Form E through an authorised representative. Form B is for other operational creditors. | Regulation 9 and IBBI circular IBBI/CIRP/94/2026 of 2 June 2026 |
| By when | Fourteen days from the IRP's appointment, the last date in the announcement. Late claims to ninety days from commencement or the request for resolution plans. | Regulations 6(2)(c) and 12(1) |
| What to attach | Appointment letter, payslips, bank statement, EPFO passbook, F&F computation or HR's arrears figure, demand email, resignation or termination letter. | Regulation 9(3) and the Form D particulars |
| Salary after admission | A process cost, paid first and in full, only if the RP ran the company as a going concern and you actually worked. Otherwise an ordinary claim. | Section 53(1)(a), Sunil Kumar Jain v Sundaresh Bhatt (SC, 2022) |
| PF and gratuity | Outside the liquidation estate. Undeposited PF and gratuity fallen due by the commencement date are paid in full, not at the plan's percentage. | Section 36(4)(a)(iii) and the Jet Airways rulings of 2022 and 2026 |
Which form do I file for an employer insolvency unpaid salary claim, and by when?
Form D, within fourteen days of the IRP's appointment. Regulation 9(1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 sends a workman or an employee to the form "notified by the Board through circular", and the circular of 2 June 2026 names it: Form D, "Proof of claim by a workman or an employee". Do not file Form B, whose heading says it is for operational creditors "except workmen and employees".
Regulation 6(2)(c) fixes the last date for claims at fourteen days from the IRP's appointment, and Regulation 6A makes the IRP send the announcement to every creditor in the company's books. Filing "by electronic means" is allowed, so a signed, scanned Form D emailed to the IRP is a valid filing. The form asks for the amount due, with any interest, as at the insolvency commencement date. Regulation 9(3) accepts as proof the contract of employment, evidence of a demand and of non-payment, or an order of a court or tribunal.
Deadline warning. Regulation 12(1) gives a second window: a claim can still be filed up to ninety days from the commencement date or the issue of the request for resolution plans, whichever is later, with reasons required after ninety days.
Three anchors.
Form D, not Form B
A workman or an employee files Form D under Regulation 9. Form B is headed for operational creditors except workmen and employees. A group files one Form E.
Fourteen days, then ninety
The last date is fourteen days from the IRP's appointment. Regulation 12(1) admits late claims up to ninety days from commencement or the request for resolution plans.
Frozen at commencement
Form D asks for the amount due as at the insolvency commencement date, interest included. Salary for months after that date is a separate process cost question.
Do I keep getting paid if I keep working after the NCLT order?
Only if two things are both true: the resolution professional is running the company as a going concern, and you actually work. Section 5(13)(c) counts "any costs incurred by the resolution professional in running the business of the corporate debtor as a going concern" as process costs, and Section 53(1)(a) pays those first and in full.
In Sunil Kumar Jain v Sundaresh Bhatt, decided on 19 April 2022, the Supreme Court refused to presume a going concern from the RP's duty under Section 20 to try to keep the company going. CIRP-period wages are process costs "provided it is established and proved" that the IRP or RP managed the operations as a going concern and that the workmen and employees "actually worked during the CIRP". Otherwise the salary is not a process cost, and pre-CIRP salary in any event goes by the Section 53 priorities. In the Jet Airways appeals (NCLAT, 21 October 2022) only the fifty workmen and employees kept on as the asset protection team had CIRP-period salary treated as a process cost.
Since 9 June 2026, Regulation 31B requires the RP to place a Going Concern Assessment Report before the first meeting of the committee of creditors, which decides whether operations continue and "the scope and duration of such operations". Ask the RP in writing whether your role is inside the approved scope and your salary booked as a process cost. Keep attendance records and work emails.
Are my PF and gratuity safe?
Safer than your salary. Section 36(4)(a)(iii) keeps "all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund" out of the liquidation estate. Sunil Kumar Jain called this "outright protection".
Jet Airways turned the principle into money: the plan there did not pay the full provident fund and gratuity. On 21 October 2022 the NCLAT held that this breached Section 30(2)(e) and directed the resolution applicant to pay workmen and employees their unpaid provident fund up to the commencement date, "after deducting the amount already paid" under the plan, and gratuity fallen due by then. The Supreme Court dismissed the resolution applicant's appeal in January 2023. In the liquidation that followed, the NCLAT's judgment of 30 June 2026 in State Bank of India v Manoj Kumar Das rejected the lenders' argument that the exclusion needs an actual fund: it "is not contingent on existence of such provident fund, pension fund and gratuity fund", and the dues "are not required to be distributed as per waterfall mechanism under Section 53(1)(b)".
The months with no deposit on your passbook are the part Jet Airways ordered paid in full. Gratuity must have fallen due: under Section 53 of the Code on Social Security, 2020, it is payable on termination after five years of continuous service, so it is a due paid in full only if your employment ended before the commencement date. If you are still on the rolls it has not yet fallen due. The gratuity post covers the arithmetic and the ceiling, and this short answer covers the EPFO route outside insolvency.
Key takeaway. Undeposited provident fund and gratuity that has fallen due go on the same Form D as your salary but are paid on a different footing: in full, outside the pool, whether the company is rescued or liquidated.
How much of my old salary will I actually get?
A floor, not a promise. Section 53(1)(a) pays process costs first. Section 53(1)(b) pays, equally between themselves, workmen's dues for the twenty-four months before the liquidation commencement date and the debts of secured creditors who gave up their security. Section 53(1)(c) pays "wages and any unpaid dues owed to employees other than workmen" for the twelve months before that date. Older salary falls to "any remaining debts and dues", near the bottom.
Your company is in CIRP, so the queue works through Section 30(2)(b): a plan must pay operational creditors, which Section 5(21) makes you by including employment in operational debt, not less than the higher of their liquidation entitlement under Section 53 or their share if the plan money were distributed in the Section 53 order. Committee of Creditors of Essar Steel v Satish Kumar Gupta, decided on 15 November 2019, confirmed that a plan cannot pass without that minimum, and that operational creditors need not get the banks' percentage because equal treatment is owed only among similarly situated creditors. In Jet Airways the workmen's liquidation value was Rs 113 crore and the plan had to pay it, while the employees' was nil. Employees are operational creditors with no vote on the plan, as the operational versus financial debt post explains.
What I tell people who come in with the IRP's email is that the law is the smaller part of the problem. What the employee controls is the admitted figure, the class it sits in, and whether the provident fund and gratuity lines are kept apart from the salary line. A claim that lumps everything into one number with no passbook and no payslips behind it invites the RP to admit a fraction of it as a single operational claim. A claim that itemises each head, dates each due and marks the PF and gratuity as Section 36(4) dues gets a different reading. That is where these matters actually turn.
Am I a workman or an employee for this, and why does it change my rank?
It changes the look-back window, twenty-four months against twelve, and whether you rank with the secured lenders or behind them. The Explanation to Section 53 borrows "workmen's dues" from Section 326 of the Companies Act, 2013, whose Explanation, reproduced in the NCLAT's Jet Airways judgment, defines workmen as employees who are workmen under Section 2(s) of the Industrial Disputes Act, 1947, and workmen's dues as wages and salary, accrued holiday remuneration, statutory compensation and sums due from the provident, pension or gratuity fund.
The law has moved under that definition. The Industrial Disputes Act was repealed on 21 November 2025 by the Industrial Relations Code, 2020, whose Section 104 lists it, and the General Clauses Act reads a reference to a repealed enactment as a reference to the provision that replaced it. The working test is therefore the Code's definition of worker in Section 2(zr): manual, unskilled, skilled, technical, operational, clerical or supervisory work in an industry, excluding anyone employed mainly in a managerial or administrative capacity and a supervisor drawing more than eighteen thousand rupees a month. I have not seen a ruling applying that substitution to a Section 53 distribution, so treat it as likely rather than settled. A developer, an accountant or a clerk with no one reporting to them and no hiring or disciplinary authority has a strong case to be a worker. Whether the company is an "industry" at all is the other half of the test, and this post deals with that argument.
Can I still go to the Labour Court, the Tribunal or the Shops Act authority?
Not while the moratorium runs, and not at all for an arrear the approved plan does not carry. Section 14(1)(a) bars "the institution of suits or continuation of pending suits or proceedings against the corporate debtor" in "any court of law, tribunal, arbitration panel or other authority", execution included. A Labour Court claim, a recovery application under the Industrial Relations Code and an appeal under Section 39 of the Karnataka Shops and Commercial Establishments Act, 1961 all stand still. Section 14(4) keeps the moratorium until a plan is approved or liquidation is ordered, and Section 60(6) excludes that period from limitation.
The sharper edge comes after the plan. Section 31(1) binds "its employees, members, creditors" to an approved plan and Section 238 gives the Code overriding effect. In Ghanashyam Mishra and Sons v Edelweiss Asset Reconstruction Company, decided on 13 April 2021, the Supreme Court held that on approval "all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings" on them. The routes for an ordinary unpaid full and final settlement or a Section 59 recovery certificate are closed while the company is inside the Code.
Common mistake. Treating the IRP's email as a formality because a labour case is already pending. The pending case is frozen by Section 14 and the plan will extinguish whatever is not claimed inside the process. In the Jet Airways liquidation a labour recovery certificate "only has quantified the amount" and went into the Section 53(1)(b) queue. File Form D and mention the pending case in item 6.
Four rules in one place.
Twenty-four or twelve months
Workmen's dues for twenty-four months before liquidation commencement rank with relinquishing secured creditors. Other employees' dues for twelve months come next.
PF and gratuity outside
Section 36(4)(a)(iii) keeps provident fund, pension fund and gratuity fund dues out of the estate. Jet Airways ordered them paid in full.
Not in the plan, gone
Section 31(1) binds employees to the approved plan. Ghanashyam Mishra holds that claims left out of the plan stand extinguished.
The RP rejected or cut my claim: what now?
Ask for the reasons, supplement the proof, and if that fails apply to the NCLT under Section 60(5). Regulation 13(1) requires the IRP or RP to verify every claim as on the commencement date within seven days of the last date for claims and to list each claim with the amount admitted. Since 2 June 2026, Regulation 13(1A) requires the professional to "either admit or reject the claim, in whole or in part" and to communicate the decision "along with reasons" within seven days, so ask for them if none have reached you.
Before the committee is constituted, the proviso to Regulation 9(1) lets you file supplementary documents. A missing payslip or a passbook printout without the employer's establishment code is usually why a claim is cut, and the document cures it. If the cut survives, Section 60(5) gives the NCLT jurisdiction over "any claim made by or against the corporate debtor" and "any question of priorities", by an interlocutory application in the company petition. An NCLT order goes to the NCLAT under Section 61 within thirty days, extendable by no more than fifteen. The firm's employment and labour practice and its insolvency side handle the claim, the application and the dealings with the RP.
Step by step: from the IRP's email to the resolution plan
- Read the public announcement. Note the insolvency commencement date, the IRP's email and the last date for claims.
- Compute the figure head by head: salary by month, leave encashment and notice pay if your employment has ended, undeposited provident fund from the passbook, gratuity if fallen due.
- Assemble the Regulation 9(3) proof: appointment letter, payslips, bank statement, EPFO passbook, HR's arrears figure, the resignation or termination letter.
- Fill Form D, state whether you claim as a workman or an employee and why, sign the declaration and verification, file by email and keep proof of despatch.
- If still working, get the RP's written confirmation that your role is inside the Regulation 31B going concern scope and your salary is booked as a process cost.
- Inspect the list of creditors after the Regulation 13 decision and compare the admitted figure with your claim, head by head.
- If a head is cut, send the missing document under the proviso to Regulation 9(1) before the committee is constituted. If the cut stands, apply under Section 60(5).
- Track the plan. Your class's liquidation value is the floor under Section 30(2)(b).
Frequently Asked Questions
I resigned two months before the NCLT admitted the petition. Can I still claim?
Yes. Your unpaid salary and full and final settlement were due within two working days of resignation under Section 17(2) of the Code on Wages, 2020, so they are debts as at the commencement date and go on Form D like anyone else's. Attach the resignation and acceptance emails, and the settlement timeline if HR disputes the due date.
What about notice pay and leave encashment?
Both are claimable if they had fallen due by the commencement date, which means your employment had ended. Accrued holiday remuneration is expressly part of workmen's dues under the Companies Act definition that Section 53 borrows, so a workman's leave encashment sits in the twenty-four month class. For other employees it is an unpaid due in the twelve-month class.
What happens if the company goes into liquidation instead of being rescued?
Section 33 sends it to liquidation, the moratorium ends, and Section 53 applies directly: process costs first, then workmen's dues for twenty-four months before the liquidation commencement date with the relinquishing secured creditors, then other employees' dues for twelve months. The Jet Airways liquidation ruling of June 2026 excluded more than four years of litigation time from that look-back and kept the PF and gratuity dues outside the waterfall altogether.
Does the moratorium stop the EPFO from acting against the company?
During the moratorium the EPFO stands as a claimant like any other creditor and cannot execute against the company. In the Jet Airways appeals the Regional Provident Fund Commissioner's admitted claim was directed to be paid by the resolution applicant. Your own undeposited PF is in any event payable to you in full under Section 36(4)(a)(iii).
Do I get interest on the arrears?
Only if your contract or a statute gives it, and only up to the commencement date, which is why Form D asks for the total "including any interest as at the insolvency commencement date". Nothing accrues on the claim after that date.
Should I keep working?
If the RP confirms in writing that the company is being run as a going concern and your role is within the approved scope, yes, because that salary is a process cost paid in full and first. If the RP will not confirm it, every month you work adds to a claim that Sunil Kumar Jain says is a process cost only if you can later prove both the going concern and the work.
Can all of us file together?
Yes. Regulation 9(2) allows an authorised representative to file one Form E for numerous workmen or employees, with each person's name, identity number, amount and period in Annexure A. Each of you is still a separate creditor with a separate admitted figure.
Will I sit on the committee of creditors?
No. Section 21(2) makes the committee a body of financial creditors. If the operational creditors together hold at least ten per cent of the debt, one representative may attend under Section 24(3)(c), without a vote under Section 24(4).
I missed the fourteen days. Is it over?
Not yet. Regulation 12(1) admits a late claim up to ninety days from the commencement date or the issue of the request for resolution plans, whichever is later, and with reasons after ninety days. Beyond that, Regulation 13(1B) allows a claim up to seven days before the vote on the plan, to be put to the committee and to the NCLT for condonation. Once the plan is approved without you, Ghanashyam Mishra applies.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
