Bombay High Court
Assistant Provident Fund ... vs M/S Ravi Spinning Ltd Akola ... on 5 April, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5829 OF 2013
1] Assistant Provident Fund Commissioner,
Sub Regional Office, 15-B, Raghuraj Arcade,
Civil Lines, Akola.
2] The Central Board of Trustees,
Employees Provident Fund,
Having Office at Bhavishya Nidhi Bhawan,
Bhikaji Cama Place, New Delhi-110066,
Through the Assistant Provident Funds
Commissioner, Employees Provident
Fund Organization ...... PETITIONERS
...VERSUS...
1] M/s.s Ravi Spinning Ltd, Akola,
through its Managing Director, MIDC,
Akola, Tq. And Distt. Akola.
2] The Presiding Officer, Employees
Provident Fund Appellate Tribunal, 60, Skylark
Building, Nehru Palace, New Delhi,
3] The Official Liquidator,
Office of the Official Liquidator,
High Court of Judicature at Bombay,
Nagpur Bench, Nagpur, New
Secretariat Building, 2nd Floor,
East Wing, Civil Lines, Nagpur.
4] SICOM LIMITED,
through its Regional Manager,
3rd Floor, Udyog Bhawan,
Civil Lines, Nagpur.
5] M/s. Twist Spin Industries,
having its office at 140, Azad Society,
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Ambawadi, Ahmedabad, through
its partners Mr. Dinesh Gokuldas
kalantry and Mrs. Shashikala
Gokuldas Kalantry.
6] Mr. Harish Ratan Alimchandani,
having its office situated at
Above Green Wine Bar, Near open
Theatre, Gandhi Road, Akola RESPONDENTS
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Shri H.N.Verma, counsel for Petitioners
Dr. Anjan De, counsel for Respondent no. 3
Shri M.G.Sarda, counsel for Respondent no.6
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CORAM: R. K. DESHPANDE, J.
th
DATE : 5 APRIL, 2017 .
ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard finally by consent of the learned counsels
appearing for the parties.
2] The Assistant Provident Fund Commissioner
assessed the liability of M/s. Ravi Spinning Limited in respect
of provident fund dues to the extent of Rs.3,93,710/- on
29.04.2004. In Appeal ATA No. 952 (9) 2004, the
Employees Provident Fund Appellate Tribunal has set aside
the order passed under Section 7-A of the Assistant
Provident Fund Commissioner and therefore, this writ petition
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by the Central Board of Trustees, challenging the decision of
the Appellate Tribunal.
3] The Tribunal has held that until and unless the
beneficiaries are not identified, the determined dues by taking
hypothetical percentage of the total contract value of labour
charges towards wages and recovering the same from the
establishment of the respondent would not help the workers
as the money would not reach to them till the time they are
identified. I have gone through the findings recorded by the
Assistant Provident Fund Commissioner. The respondent
No.1 - Employer has admitted to have paid the wages of the
employees for the period 2000-01 to 2002-03. The total
amount of wages was worked out to Rs.34,47,891/- and the
provident fund dues to the extent of Rs.19,10,564/- were
paid, but it is found that the liability was not discharged in
respect of wages paid to the tune of Rs.15,37,327/-. The
amount has been assessed as per Section 6 of the Provident
Fund Act. This aspect has been totally ignored by the
Appellate Tribunal. The order impugned cannot, therefore,
be sustained.
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4] The Assistant Provident Fund Commissioner
passed an order on 14.06.2004. The respondent No.1
Company went into liquidation and it was wound up in the
year 2006. Prior to that, an appeal was preferred by the
respondent No.1 Company before the Appellate Tribunal
which was dismissed in default and subsequently restored.
The properties of respondent No.1 were taken over by
SICOM Limited under the provisions of Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act (SARFAESI Act) and ultimately it was
sold to respondent No. 5 - M/s. Twist Spin Industries,
Ahmedabad, which subsequently sold it to respondent No.6 -
Mr. Harish Ratan Alimchandani of Akola. The respondent
Nos. 5 and 6 were not parties before the lower appellate
Tribunal.
5] Shri Verma, the learned counsel for the
petitioners submits that the provident fund dues can be
recovered from the purchasers of the establishment by virtue
of Section 17-B of the said Act. However, the said provision
can be invoked only if the dues against the erstwhile
employer attains finality. Though, the respondent Nos. 5
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and 6 can have an opportunity in response to any
proceedings if instituted by the petitioner under Section 17-B
of the said Act, they can also be heard by the lower appellate
Tribunal on the question of the liability of the erstwhile
employer.
6] In view of this, the writ petition is allowed. The
order dated 12.11.2012 passed in Appeal ATA No. 952 (2)
2004 by the Employees' Provident Fund Appellate Tribunal,
New Delhi, is hereby quashed and set aside. The matter is
remitted back to the said Tribunal for the decision afresh after
giving an opportunity to the parties including the respondent
Nos. 5 and 6 , who shall be permitted to intervene in the
matter.
The parties to appear before the said Tribunal on
08.05.2017. No fresh notices shall be issued to the parties
concerned. Needless to say that the Official Liquidator has
no role in the matter and if any dues are found to be
outstanding against the respondent no.1, it shall be open for
the petitioner to lodge the claim before the Official Liquidator,
which shall be dealt in accordance with law.
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Rule made absolute in above terms. No order as
to costs.
JUDGE
Rvjalit
