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3. In the writ appeals the principal submission of the appellants is that the appellants are sick companies within the meaning of Section 3(1)(o) of the SICA, and further according to the appellants, under Section 22 (1) of the SICA, when an enquiry under Section 16 is pending before BIFR, then notwithstanding anything contained in the Companies Act, 1956, or any other law, no proceedings for execution, distress or the like against any of the properties of the industrial company would lie or be proceeded with further except with the consent of the BIFR. It is further contended that since the EPF Act does not contain any non obstante clause and the SICA and the EPF Act are both special statutes, and since the SICA came into force later than the EPF Act, in that case, the provisions of the SICA must prevail over the EPF Act. Reliance is placed on an unreported decision of a Division Bench of this Court dated 02.11.2001 rendered in W.A.No.1831 of 2001 (M/s.ESSORPE Mills Limited Vs. Central Provident Fund Commissioner and Others). The Division Bench in the aforesaid case has held that in view of the provisions of Section 22 of the SICA no action for realization against a sick company relating to the amounts payable under the EPF Act is permissible without prior consent from the BIFR. The writ appeals were posted for hearing before the Division Bench to which one of us (A.P.Shah, C.J.) was a party. The Division Bench recording its disagreement with the aforesaid decision in M/s.ESSORPE Mills case took a view that Section 22(1) of the SICA has no application and the proceedings under the EPF Act would not come within the purview thereof. Consequently, the matters came to be referred to the Larger Bench.

7. In order to appreciate the rival contentions which have been urged at the Bar, reference may be made to some of the fundamental provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The EPF Act has been enacted to provide for the institution of provident funds, pension funds and deposit linked insurance funds for the employees in factories and other establishments. Therefore, it is a welfare legislation intended as a measure to provide social security. Under the provisions of the EPF Act a Scheme known as Employees Provident Fund Scheme, 1952 has been framed. After the framing of the Scheme a Fund is established which is vested and administered by the Central Board constituted under Section 5  A of the EPF Act. Section 6 of the EPF Act provides that 8-1/3 % of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees shall be deducted as contribution from the employees and an equal amount thereto shall be contributed by the employer. Section 6-A of the Act provides for the Employees Pension Scheme and Section 6-C for the Employees Deposit Linked Insurance Scheme. Section 7-A empowers the Provident Fund Commissioner and his officers to determine, inter alia, the amount due from any employer under the provisions of the Act. Section 8 provides for the mode of recovery of moneys due from employees. Section 8-A provides for recovery of moneys by employers and contractors. Section 8-B provides that where an amount is in arrears under Section 8 the authorized officer may issue to the Recovery Officer, a certificate specifying the amount of arrears and the Recovery Officer on receipt of such certificate shall proceed to recover the amount specified therein from the establishment or employer by one or more of the modes, i.e., (a) attachment and sale of the movable or immovable properties of the establishment or the employer; (b) arrest of the employer and his detention in prison; and (c) appointing a receiver for the management of the movable or immovable properties of the establishment or the employer. Section 8-G provides that the provisions of the Second and Third Schedules to the Income-tax Act, 1961, and the Income-tax (Certificate Proceedings) Rules as in force from time to time, shall apply with necessary modifications as if the said provisions and the rules referred to the arrears of the amount mentioned in Section 8 of the Act instead of to the income-tax. Section 11 of the Act provides for the priority of payment of contributions over other debts. Section 12 lays down that no employer shall, by reason only of his liability for the payment of any contribution under the Act or the Scheme reduce the wages of any employee or the total quantum of benefits in the nature of Old Age Pension, Gratuity, Provident Fund or Life Insurance to which the employee is entitled under the terms of his employment express or implied.

22. In the light of the provisions of the EPF Act, and the Scheme framed there under, we are of the view that the rights of the employees under the Scheme are protected and the proceedings under the EPF Act do not come within the purview of the provisions of Section 22(1) of the SICA. An amendment to the EPF Act was made by Act 33 of 1988 in terms whereof proviso to Section 14-B has been introduced. Under Section 14-B where an employer makes default in payment of any contribution to the Fund, the Central Provident Fund Commissioner has been authorized to recover the damages by way of penalty not exceeding the amount of arrears. However, under the proviso appended thereto, the Central Board has been empowered to reduce the quantum of damages that may be required to be paid by a company in relation to an undertaking which is a sick industrial undertaking and in respect of which the scheme for rehabilitation has been sanctioned by the BIFR, subject to such terms and conditions as may be specified under the scheme. Parliament thus as a matter of legislative policy has enacted that the employer be granted a waiver of damages payable under Section 14-B where the undertaking of the employer is a sick industrial undertaking and the scheme for its rehabilitation has been sanctioned. There again, it must be noticed that the eligibility to grant waiver under Section 14-B is subject to those conditions which have been prescribed therein. Parliament having thus amended the EPF Act had taken within its purview the position of a sick industrial undertaking, the extent of the immunity which have been conferred upon such undertaking with reference to provident fund dues under the Act, must be confined to what has been legitimized by Parliament. The extent of the immunity or exemption cannot be extended beyond what was allowed in terms of the amendment to the EPF Act.

25. In Sarvaraya Textiles Ltd. V. Commr., E.P.F., 2002-I-LLJ-611(AP), the Division Bench of the Andhra Pradesh High Court has considered the provisions of the EPF Act vis-`-vis Section 22(1) of the SICA and held that the rights of the employees under the provident fund scheme are protected and the proceedings under the EPF Act do not come within the purview of the provisions of Section 22(1) of the SICA. Chief Justice S.B.Sinha (as he then was) speaking for the Bench held as follows: -

 The Scheme framed under the EPF Act, the welfare of the workman is in consonance with the directive principles of the State policy contained in Part IV of the Constitution and such scheme, in our opinion, cannot be allowed to be defeated by the operation of the provisions of Section 22(1) of the SICA. A plain reading of the provisions of Section 22(1) of SICA would make it clear that the proceedings under the EPF Act would not come within the purview thereof. Section 14-B of the EPF Act has, however, granted limited protection in relation to reduction of waiver of damages in respect of a sick industrial unit in relation to which a scheme for rehabilitation has been sanctioned by the BIFR. We are, therefore, of the view that the decisions in Mahrashtra Tubes Case (1993 AIR SCW 991) and Gram Panchayats case (AIR 1990 SC 1017) have no application to the facts of the present case. The decision of the Apex Court in Organo Chemical Industries, (1979 Lab IC 1261) is also of no assistance to the case of the appellant.