Vibhu Drinks Private Limited., ... vs The Assistant Provident Fund ...
2017 Latest Caselaw 8980 Bom

                                                  1                                         jg.w.p.2380.15.odt


                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                        : NAGPUR BENCH : NAGPUR.

                             WRIT PETITION NO. 2380 OF 2015

Vibhu Drinks Private Limited, a 
copy duly incorporated under the Companies Act, 
196 and having  its office at Plot No. F-4(A) 
Industrial Area, Hingna Road, M.I.D.C., Nagpur, 
through its Director.                                                                         ... Petitioner

             VERSUS

(1) The Assistant Provident Fund Commissioner,
      Recovery, Regional Office, 132-A, Ridge Road, 
      Raghuji Nagar, Nagpur, Nagpur - 440009. 

(2) The Employees Provident Fund Organisation,
      (Ministry of Labour & Employment, Govt. of India), 
      Regional Office, 132-A, Ridge Road, 
      Raghuji Nagar, Nagpur - 440009.  Through the 
      Regional Commissioner. 

(3) The Official Liquidator, High Court of Bombay,
      Bench at Nagpur and Liquidator of 
      M/s Niranjan Ayurved Bhavan Limited 
      (In Liquidation) appointed in Company
      Petition No. 11 of 1996, having its office at 
      2nd Floor, East Wing, Secretarial Building, 
      Near VCA Ground, Civil Lines, Nagpur. 

(4) M/s. Niranjan Ayurved Bhavan Limited
      Regd. Office at Hisaria Bhavan, Bajaj 
      Nagar, Opposite Bawdi Mandir, Tehsil 
      Tumsar, Dist. Bhandara, PIN - 441 912 
      Through its Director                                                                 ... Respondents
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Shri B. C. Pal, Advocate for the petitioner
Shri S. D. Sirpurkar, Advocate for the respondent nos. 1 and 2 
None for the respondent nos. 3 and 4
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                                      2                              jg.w.p.2380.15.odt



                                         CORAM : R. K. DESHPANDE AND
                                                       M. G. GIRATKAR, JJ.

                                          DATE    : 23/11/2017.

Oral Judgment             (Per : R. K. Deshpande, J.)

Rule. Rule made returnable forthwith. Heard finally with

consent of the learned counsels appearing for the parties.

2. Challenge in this petition is to the show cause notices dated

12-1-2015, 12-5-2015 and 15-6-2015 issued by the Employees Provident

Fund Organisation calling upon the petitioner to pay total dues of

Rs. 17,76,828/- outstanding against M/s Niranjan Ayurved Bhavan

Limited, Khairlanji, Tumsar, District Bhandara.

3. It is not in dispute that the petitioner has purchased this

property for total consideration of Rs. 50,00,000/- (Rupees Fifty Lacs

Only) as per the deed of conveyance dated 7-4-2006 executed by the

Official Liquidator, High Court of Bombay, Bench at Nagpur appointed

over M/s Niranjan Ayurved Bhavan Limited. It is the case of the

respondent - Employees Provident Fund Organisation that the provident

fund dues of the employees of M/s Niranjan Ayurved Bhavan Limited

(a company which has gone under liquidation) to the tune of

3 jg.w.p.2380.15.odt

Rs. 17,76,828/- are required to be recovered from the petitioner in

terms of Section 17-B of the Employees' Provident Funds and

Miscellaneous Provisions Act, 1952 and therefore, show cause notices in

question were issued.

4. In view of above, the question involved in this case is

whether the provisions of Section 17-B of the said Act is attracted in the

present case or not.

5. Section 17-B of the said Act being relevant is reproduced

below.

17-B. Liability in case of transfer of establishment. - Where an employer, in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under any provision of this Act or the Scheme or [the [Pension] Scheme or the Insurance Scheme], as the case may be, in respect of the period up to the date of such transfer :

Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.]

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What we find by reading the aforesaid provision is that it is the

voluntary transfer made by the employer which is covered by the said

provision. Involuntary transfer or the transfer under the statutory

provisions is not covered by the said provision. The controversy is

covered by the decision of the Punjab and Haryana High Court delivered

on 15-7-2011 in Letters Patent Appeal No. 893 of 2011 (Regional

Provident Fund Commissioner Vs. Tayal Energy Limited and others)

cited before us by the learned counsel for the petitioner.

6. Clause (1) of the conveyance deed executed by the Official

Liquidator in favour of the petitioner in respect of property in question

being relevant is reproduced below.

1. In pursuance of the orders of the High Court dated 24 th February, 2006 in Company Application No. 127/05 and in consideration of the sum of Rs. 50,00,000/- (Rs. Fifty Lacs Only) paid by the Purchaser to the Vendor in the manner hereinafter set forth and covenants contained herein the VENDOR does hereby grant convey, transfer and assign by way of absolute sale to the Purchaser, title Schedule Property together with all common ways, easements, and appurtenances estate, right title, interest property together with all common ways, easements and appurtenances, estate,

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right, title, interest, property, claims and demands whatsoever there to belonging to the Schedule Property free from encumbrances attachments, charges and any other claims whatsoever and to have and to hold the same as absolute owner thereof as per Terms & Conditions - approved by Hon'ble High Court.

Clause (3) being also relevant, is reproduced below.

3. The VENDOR hereby agrees and undertakes to pay all such charges, taxes cess and dues upto the terms and conditions of bid approved by the Hon'ble High Court.

In terms of the aforesaid provision, the property is transferred to the

petitioner free from all encumbrances, attachments, charges and any

other claims whatsoever and the petitioner is entitled to have and hold

the said property as absolute owner of the same. In terms of the

aforesaid two clauses, it is the vendor i.e. the Official Liquidator who

has agreed and undertaken to pay all such charges, taxes, cess and dues

up to the terms and conditions of the bid approved by the High Court.

We find that there is absolutely no ambiguity and the liability to pay

the provident fund dues, as proposed in the show cause notices, is that

of the Official Liquidator and not of the auction purchaser who is the

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petitioner.

7. It was open for the Provident Fund Commissioner to have

made the demand of provident fund dues from the Official Liquidator in

the proceedings of liquidation and if the amount lying with Official

Liquidator is not found to be sufficient to discharge the liability, then all

other steps, as are permissible in law can be taken, except the recovery

of such dues from the petitioner. In spite of knowing this position of

law, it seems that the respondent - Employees Provident Fund

Organisation is harassing the petitioner by issuing show cause notices.

Hence, the petition will have to be allowed by imposing costs.

8. In the result, writ petition is allowed. Show cause notices

dated 12-1-2015, 12-5-2015 and 15-6-2015 issued by the Employees

Provident Fund Organisation calling upon the petitioner to clear the

dues of provident fund outstanding against M/s Niranjan Ayurved

Bhavan Limited, are quashed and set aside.

9. The respondent - Regional Commissioner, Employees

Provident Fund Organisation shall pay costs of Rs. 10,000/- to the

petitioner within a period of four weeks from today, failing which, the

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costs to be paid shall go on increasing at the rate of Rs. 10,000/- per

month.

                        JUDGE                                  JUDGE



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