Calcutta High Court (Appellete Side)
The Hooghly Mills Company Limited & Anr vs The Regional Provident Fund ... on 7 November, 2022
20 IN THE HIGH COURT AT CALCUTTA
07.11.2022 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct 550 APPELLATE SIDE
WPA 6243 of 2022
The Hooghly Mills Company Limited & Anr.
Vs.
The Regional Provident Fund Commissioner & Ors.
Mr. Jishnu Chowdhury,
Mr. Ratul Das,
Mr. Meghajit Mukherjee
.... For the petitioners.
Mr. Satyendra Agarwal,
Mr. Bijoy Bag
... For the respondents.
The present writ application has been filed, inter alia, challenging the notice dated 23rd March, 2022, issued by the Recovery Officer, Regional Office, Barrackpore, Employees' Provident Fund Organization.
Mr. Chowdhury learned advocate, appearing in support of the aforesaid application, while referring to the aforesaid notice submits that serial nos. 2 and 3 of the aforesaid notice forms the subject matter of challenge in the present writ application. He submits that in so far as serial no.1 is concerned, his client has separately challenged the levy of penalty in the form of damages under Section 14B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the "said Act") in a separate writ application. Drawing attention of this Court to the orders at page 33 and 35 of the aforesaid writ application, it is submitted that the 2 respondents had determined the provident fund contributions payable by the petitioner no.1 under Section 7A of the said Act, by ignoring the payments made by the petitioners, by way of instalments, pursuant to the order dated 24th March, 2004 passed in W.P. No. 540 of 2004 which was later modified by the Division Bench of the Hon'ble Court vide its order dated 23rd June, 2005. Mr. Chowdhury, further submits that pursuant to the direction passed by the Division Bench, the petitioners have deposited a sum of Rs.23,04,06,846/-. According to Mr. Chowdhury, the respondents while seeking recovery the aforesaid demand forming subject matter of challenge in the present writ application have ignored the payments made by the petitioners. In fact, challenging the orders dated 18th May, 2004 and 27th May, 2004, passed under Section 7A of the said Act, which are at pages 33 and 35 of the writ application, another writ application, being W.P. No. 3900 (W) of 2010 was filed before this Hon'ble Court. On contested hearing this Hon'ble Court by an order dated 3rd March, 2010, while restraining the respondents from taking any coercive steps against the petitioners, had directed the provident fund authorities, to utilise the payments made by the petitioners in terms of the directions passed by the Division Bench of this Hon'ble Court, towards liquidation of the dues of the petitioners specified in the order passed under Section 7A of the said Act. In the aforesaid order, it was, inter alia, 3 further provided that in case the provident fund authorities want to initiate any further proceedings, for a period which was not the subject matter of the earlier writ petition being W.P. No.540 of 2004, they shall be at liberty to do so but only upon service of advance notice on the petitioners as per the direction of the Hon'ble Division Bench. Liberty was also give to the respondents to determine statutory interest if the same remained outstanding, upon service of notice on the petitioners. Mr. Chowdhury, submits that the respondents have not taken any steps pursuant to such liberty granted by this Hon'ble Court vide order dated 3rd March, 2010. No notice of hearing has been served on the petitioners. The aforesaid notice issued by the respondents, claiming recovery of a sum of Rs.16,92,828/- and a sum of Rs.19,20,107/- from the petitioners, on account of determination purportedly made under Section 7Q of the said Act is mala fide contrary to the order passed by this Hon'ble Court and this Hon'ble Court should set aside the same.
Per contra, Mr. Agarwal, learned advocate, representing the provident fund authorities submits that the initial writ application, being W.P. No.540 of 2004 was not filed challenging any order under Section 7A of the said Act. He submits that the petitioner no 1 is an exempted establishment under section 17 of the said Act. Drawing attention of this Hon'ble Court to the orders 4 dated 18th May, 2004 and 27th May, 2004, it is submitted that it is well within the authority of the respondents to determine the provident fund contributions due and payable by the petitioners. Mr. Agarwal further submits that by order dated 3rd March, 2010, liberty was granted to the provident fund authorities, to quantify the interest amount. As such, the action of the respondents in recovering the interest by determining the same under Section 7Q of the said Act, cannot be questioned. While drawing attention of this Hon'ble Court to the statement of deposit at page 88 of the writ application it is submitted that the payments made by the petitioners were towards adjustment of loan and towards payment of pension account and as such no credit can be given for the deposits made by the petitioners, while determining interest under Section 7Q of the said Act. It is submitted that all documents have not been disclosed by the petitioners. He seeks to rely on the records of the case and prays for leave to file affidavit-in-opposition. He also submits that at this stage no interim order should be passed in favour of the petitioners.
I have considered the submissions made by the parties. I find that a co-ordinate Bench of this Hon'ble Court by an order dated 3rd March, 2010 while considering the challenge to the orders dated 18th May, 2004 and 27th May, 2004 passed under Section 7A of the 5 said Act, for a period August, 2002 to March, 2003, had categorically concluded that the instalments directed to be paid by the petitioners in terms of the order of the Hon'ble Division Bench, would be utilised towards liquidation of the dues of the petitioners specified in the order under Section 7A of the Act. Insofar as, determination of interest is concerned, liberty was granted to the provident fund authorities to determine such interest, provided statutory interest remained outstanding, upon giving an opportunity of hearing to the petitioners. Without going into the controversy whether the petitioners have been served with a notice prior to determination, it, however, does not appear that a fresh order under Section 7Q of the said Act, for the period August 2002 to March 2003 and May 2004 has been passed. It, prima facie appears, that the respondents are trying to enforce orders passed under 7Q of the said Act, which were passed prior to passing of the order dated 3rd March, 2010. Mr. Agarwal, also could not demonstrate before this Hon'ble Court that any fresh order under Section 7Q of the said Act, subsequent to passing of the order dated 3rd March, 2010 has been passed.
I am of the view that the petitioner has been able to make out a prima facie case. The writ application shall be heard. Considering the threat of recovery, there shall be an order restraining the respondents from taking any 6 coercive action against the petitioners, for enforcing the notice dated 23rd March, 2022, forming annexure P-10 of writ application, insofar as claim on account of determination made under Section 7Q of the said Act is concerned, till 31st January, 2023 or until further order, whichever is earlier.
The respondents shall be at liberty to file affidavit- in-opposition.
Let such affidavit-in-opposition be filed within a period of four weeks from date. Reply, if any, thereto be filed two weeks thereafter.
Let this matter appear in the Combined Monthly List of January, 2023 under the heading, "Hearing".
(Raja Basu Chowdhury, J.)