{"id":184689,"date":"2009-02-16T00:00:00","date_gmt":"2009-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-p-enterprises-pvt-ltd-vs-regional-provident-fund-on-16-february-2009"},"modified":"2018-05-02T20:16:33","modified_gmt":"2018-05-02T14:46:33","slug":"a-p-enterprises-pvt-ltd-vs-regional-provident-fund-on-16-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-p-enterprises-pvt-ltd-vs-regional-provident-fund-on-16-february-2009","title":{"rendered":"A.P. Enterprises Pvt. Ltd vs Regional Provident Fund … on 16 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
A.P. Enterprises Pvt. Ltd vs Regional Provident Fund … on 16 February, 2009<\/div>\n
        IN THE HIGH COURT OF PUNJAB AND HARYANA\n                     AT CHANDIGARH\n\n                                          C.W.P. No. 4631 of 2007.\n                                   Date of Decision : February 16, 2009.\n\nA.P. Enterprises Pvt. Ltd.                                  ...... Petitioner.\n                                 Versus.\n\nRegional Provident Fund Organisation, and another.       ...... Respondents.\n\nCORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.\n\n\nPresent:    Mr. P.K. Mutneja, Advocate,\n            for the petitioner.\n\n            Mr. Kamal Sehgal, Advocate,\n            for the respondents.\n\n\nAUGUSTINE GEORGE MASIH, J.\n<\/pre>\n
            By this order, I propose to decide C.W.P. No. 4631 of 2007<\/p>\n
and C.W.P. No. 5789 of 2007 wherein the common questions of facts and<\/p>\n
law are involved.\n<\/p>\n
            Facts briefly leading to the filing of the present writ petition<\/p>\n
are that one M\/s Rana Mahindra Papers Limited, Village Fathepur (Sialba),<\/p>\n
Kurali, District Ropar, Punjab, an establishment which has not been<\/p>\n
depositing Employees’ Provident Fund dues of its workers, thus, forcing the<\/p>\n
authorities under the Employees’ Provident Funds and Miscellaneous<\/p>\n
Provisions Act, 1952, (hereinafter referred to as the E.P.F. Act) to make<\/p>\n
assessment of the said establishment under Section 7-A of the E.P.F Act.<\/p>\n
The assessment was made by the Provident Fund Commissioner and an<\/p>\n
amount of Rs. 26,62,922\/- was found payable as on 28.02.2007 by M\/s<\/p>\n
Rana Mohindra Papers Limited.      In order to recover the abovementioned<\/p>\n
amount, the bank accounts of M\/s Rana Mohindra Papers limited were
\n C.W.P. No. 4631 of 2007.                                                 -2-<\/span><\/p>\n
attached. Despite the attachment of the accounts in the State Bank of Patiala,<\/p>\n
Canara Bank, I.C.I.C.I. Bank and Indian Overseas Bank, the respondent-<\/p>\n
department could not recover any amount.         Thereafter, the respondent-<\/p>\n
department proceeded to take action against the employer Rana Hardeep<\/p>\n
Singh and a complaint was filed with S.S.P. Ropar, for registration of an<\/p>\n
F.I.R. under Sections 406\/409 I.P.C.     During this time, the respondent-<\/p>\n
department came to know that M\/s A.P. Enterprises Private Limited and M\/s<\/p>\n
Chanakaya Distributors are the business promoters of M\/s Rana Mahindra<\/p>\n
Papers Limited. The Recovery Officer exercising the powers conferred on<\/p>\n
him under Section 8-G read with Rules 26 and 29 of the 2nd Schedule of<\/p>\n
Income Tax Act, 1961, issued prohibitory orders C.P. 3 to M\/s A.P.<\/p>\n
Enterprises Private Limited in C.W.P. No. 4631 of 2007 on 10.04.2006 and<\/p>\n
to M\/s Chanakaya Distributors in C.W.P. No. 5789 of 2007 on 18.05.2006,<\/p>\n
prohibiting the petitioners from making any payments to or on behalf of M\/s<\/p>\n
Rana Mohindra Papers Limited. The petitioners rather than complying with<\/p>\n
the prohibitory orders dated 10.04.2006 and 18.05.2006 made payments on<\/p>\n
behalf of M\/s Rana Mahindra Papers Limited to number of persons and also<\/p>\n
received payments on behalf of M\/s Rana Mahindra Papers Limited, thus,<\/p>\n
violating the prohibitory orders passed by the Recovery officer.<\/p>\n
            The Recovery Officer called upon the petitioners to explain<\/p>\n
their position and during the proceedings, it transpired that the petitioners<\/p>\n
have been carrying out the business activities of M\/s Rana Mahindra Papers<\/p>\n
Limited as the petitioners have been making the payments of raw materials<\/p>\n
and purchasing finished goods and collecting payments on behalf of M\/s<\/p>\n
Rana Mahindra Papers Limited and crediting the same to M\/s Rana<\/p>\n
Mahindra’s ledger account.\n<\/p>\n
 C.W.P. No. 4631 of 2007.                                                -3-<\/span><\/p>\n
            The petitioners were called upon to appear before the Recovery<\/p>\n
Officer to remain present on 17.07.2006 at 11:00 A.M. alongwith balance<\/p>\n
sheet for the year 2005-2006. Both the petitioners put in appearance through<\/p>\n
Shri Kamal Dhami, duly authorised by the establishments on 17.07.2006,<\/p>\n
21.07.2006 and 07.08.2006. The submissions as put forth was considered by<\/p>\n
the Recovery Officer. The petitioners failed to submit the balance sheet for<\/p>\n
the year 2005-2006 in respect of their establishments, however, Mr. Kamal<\/p>\n
Dhami, authorised representative, made his submission to the effect that the<\/p>\n
Commissioner has powers and must proceed to recover money from the<\/p>\n
employer of the establishments M\/s Rana Mahindra Papers Limited which is<\/p>\n
running unit rather than from the establishments represented by him. He<\/p>\n
further submitted that a huge amount of money of the petitioners is locked up<\/p>\n
in\/with M\/s Rana Mahindra Papers Limited and in the hope of recouping the<\/p>\n
same, they were carrying their business with M\/s Rana Mahindra Papers<\/p>\n
Limited.   He during the proceeding admitted that M\/s A.P. Enterprises<\/p>\n
Private Limited and M\/s Chanakaya Distributors had made payments and<\/p>\n
received payments for and on behalf of M\/s Rana Mahindra Papers Limited<\/p>\n
to the parties dealing with them even after receipt of notice in Employees’<\/p>\n
Provident Fund (C.P.3). He submitted that if they obeyed the orders of the<\/p>\n
Recovery Officer, their businesses would have come to a standstill and they<\/p>\n
may not be in a position to recover their money running in lakhs of rupees<\/p>\n
which they are to receive from M\/s Rana Mahindra Papers Limited. After<\/p>\n
considering the submissions as put forth by the authorised representative of<\/p>\n
the petitioners and on going through the records and the documents which<\/p>\n
have been submitted by the authorised representative, the Recovery Officer<\/p>\n
came to a conclusion that both the petitioners are virtually running the
\n C.W.P. No. 4631 of 2007.                                                  -4-<\/span><\/p>\n
business of M\/s Rana Mahindra Papers Limited as they were not only<\/p>\n
receiving money from parties on behalf of M\/s Rana Mahindra Papers<\/p>\n
Limited but also making payments on behalf of M\/s Rana Mahindra Papers<\/p>\n
Limited. That being so both the petitioners have violated the prohibitory<\/p>\n
orders issued by the Recovery Officer under Section 8 of the E.P.F. Act and<\/p>\n
accordingly ordered the petitioners to remit the amount of Rs. 26,62,922\/-<\/p>\n
within seven days of receipt of the orders failing which the same shall be<\/p>\n
recovered as per provisions of E.P.F. Act, treating them as defaulters instead<\/p>\n
of M\/s Rana Mahindra Papers Limited. This was common order passed<\/p>\n
against both the petitioners by the Recovery Officer on 16.03.2007 which<\/p>\n
has been challenged by the petitioners in the present writ petitions.        In<\/p>\n
pursuance to the said orders, the petitioners having failed to remit the amount<\/p>\n
ordered to be recovered, the Recovery Officer issued a letter dated<\/p>\n
23.03.2007 to the Bankers of the petitioners requesting the Manager of Bank<\/p>\n
under Section 8-F of the E.P.F. Act to pay the amount due from the<\/p>\n
petitioners as per provisions of the E.P.F. Act. The petitioners have in these<\/p>\n
writ petitions therefore challenged the initial prohibition order dated<\/p>\n
18.05.2006 (in C.W.P. No. 4631 of 2007) and prohibition order dated<\/p>\n
10.04.2006 (in C.W.P. No. 5789 of 2007) and subsequent order dated<\/p>\n
16.03.2007 and letter dated 23.03.2007.\n<\/p>\n
             Counsel for the petitioner contends that Section 8-F of the<\/p>\n
E.P.F. Act provides for other modes of recovery according to which the<\/p>\n
recovery could be effected under this provision by the Central Provident<\/p>\n
Fund Commissioner or any other Officer authorised by the Central Board in<\/p>\n
this behalf. He contends that the Regional Provident Fund Commissioner,<\/p>\n
Punjab, is not the competent authority as it has not been authorised by the
\n C.W.P. No. 4631 of 2007.                                                   -5-<\/span><\/p>\n
Central Board and therefore, the prohibitory orders and impugned order<\/p>\n
dated 16.03.2007 as well as letter dated 23.03.2007 deserve to be quashed.<\/p>\n
             This contention of counsel for the petitioner only deserves<\/p>\n
reference but does not hold good as counsel for the respondent has produced<\/p>\n
a notification No. R.R.Cell.\/8(9)92\/R.M.\/2350, dated 27.07.1992 issued by<\/p>\n
the office of Central Provident Fund Commissioner, New Delhi, issued in<\/p>\n
exercise of the powers conferred by Sub-section 1 of Section 8-F of the<\/p>\n
E.P.F. Act, whereby Central Board has authorised the Regional Provident<\/p>\n
Fund Commissioner, Punjab, to exercise the powers conferred under Sub-<\/p>\n
section (2), (3) and (4) of Section 8-F of the E.P.F. Act in relation to all<\/p>\n
establishments covered under the provisions of E.P.F. Act in respect of areas<\/p>\n
mentioned therein.\n<\/p>\n
             Now counsel for the petitioner contends that the prohibitory<\/p>\n
orders could not have been resorted to by the Recovery Officer without<\/p>\n
exhausting the remedy available to the Recovery Officer against the defaulter<\/p>\n
M\/s Rana Mahindra Papers Limited. He contends that the first step should<\/p>\n
have been to recover the said amount from the defaulter and only when the<\/p>\n
same had not been exhausted and still some recovery was due resort to<\/p>\n
Sections 8-F and 8-G of the Act could have been made by the Recovery<\/p>\n
Officer. He submits that the establishments of M\/s Rana Mahindra Papers<\/p>\n
Limited are still working and the Recovery Officer should have proceeded<\/p>\n
against them by locking up and taking further steps against the said<\/p>\n
establishment which has been provided under the E.P.F. Act.<\/p>\n
             The next submission which has been put forth by counsel for the<\/p>\n
petitioner is that as per Section 8-F of the E.P.F. Act, the relevant date is to<\/p>\n
be seen is the date on which notice is served upon the petitioners. If on that
\n C.W.P. No. 4631 of 2007.                                                  -6-<\/span><\/p>\n
date any money is owed by the petitioners to M\/s Rana Mahindra Papers<\/p>\n
Limited, the said amount can be deducted and credited to the Provident<\/p>\n
Fund. The said amount cannot in any case exceed the amount due. If the<\/p>\n
amount due on the said date when the notice is served falls short of the<\/p>\n
amount due by M\/s Rana Mahindra Papers Limited, the same cannot be<\/p>\n
deducted from the transactions after the said date from the amount which<\/p>\n
would fall due thereafter. He further contends that if the provisions of<\/p>\n
Section 8-F(3)(i)(ii) are interpreted in the manner as the Recovery Officer<\/p>\n
has interpreted in the impugned order, the same would amount to violation of<\/p>\n
Article 19-G of the Constitution of India. What has been asserted in the<\/p>\n
impugned order by the Recovery Officer is that of subsequent transactions<\/p>\n
after the date of service of notice of prohibition, no transaction can take<\/p>\n
effect with M\/s Rana Mahindra Papers Limited. What can be recovered is<\/p>\n
only the amount due from the employer and not what would be amount of<\/p>\n
transaction. He further contends that the amount which would fall due to the<\/p>\n
petitioners from M\/s Rana Mahindra Papers Limited has not been determined<\/p>\n
and an order for recovery has been ordered without taking into consideration<\/p>\n
the amount due. He on this basis contends that the impugned orders\/letters<\/p>\n
deserve to be set aside.\n<\/p>\n
             On the other hand, counsel for the respondents submits that the<\/p>\n
petitioners have not approached this Court with clean hands. They have<\/p>\n
deliberately omitted 16 credit entries in the balance sheet which has been<\/p>\n
produced before this Court. The petitioners have, therefore, tried to mislead<\/p>\n
this Court and given benefit by such omission as these credit entries account<\/p>\n
for is Rs. 23,50,600\/- and if these credit entries are taken into consideration<\/p>\n
M\/s Rana Mahindra Papers Limited would become debtor to tune of Rs.
\n C.W.P. No. 4631 of 2007.                                                   -7-<\/span><\/p>\n
21,50,600\/-. He further contends that petitioner M\/s A.P. Enterprises Private<\/p>\n
Limited had vide its letter, copy whereof has been placed as Annexure-R-1,<\/p>\n
admitted with reference to letter of recovery dated 10.04.2006 that there is a<\/p>\n
debit balance amounting to Rs. 16,40,828-24 in its books of account in<\/p>\n
respect of M\/s Rana Mahindra Papers Limited. He submits this document<\/p>\n
has not been contradicted by the petitioners.         This clearly shows the<\/p>\n
admission on the part of petitioners and therefore, they cannot now turn<\/p>\n
around and say that there is no due which the petitioners owe to M\/s Rana<\/p>\n
Mahindra Papers Limited. He further submits that the act does not restrict<\/p>\n
the authority of the Recovery Officer under Section 8 of the E.P.F. Act to a<\/p>\n
particular mode to be adopted by the Recovery Officer to make good the<\/p>\n
recovery which has been found to be due against employer. The modes of<\/p>\n
recovery has been provided for under the various provisions contained in the<\/p>\n
E.P.F. Act and it is at the discretion of the Recovery Officer who would<\/p>\n
exercise the powers within those parameters to recover the amount due. He<\/p>\n
further contends that Section 8-F of the Act itself is a reply to the contention<\/p>\n
raised by counsel for the petitioner that the recovery can be effected from the<\/p>\n
dues as calculated on the date of receipt of notice from the petitioners. He<\/p>\n
has referred to various provisions of Section 8-F of the E.P.F. Act to<\/p>\n
substantiate his contentions.\n<\/p>\n
             I have heard counsel for the parties and with their able<\/p>\n
assistance have gone through the records of the case.\n<\/p>\n
             Before proceeding further in the matter, Section 8-F of the<\/p>\n
E.P.F. Act, which is the bone of contention needs to be referred to and<\/p>\n
therefore, the same is reproduced herein below :-\n<\/p>\n
             “8F. Other modes of recovery.-\n<\/p><\/blockquote>\n
 C.W.P. No. 4631 of 2007.                                              -8-<\/span><\/p>\n
\n
           (1)   Notwithstanding the issue of a certificate to the Recovery<\/p>\n
           Officer under Section 8B, the Central Provident Fund<\/p>\n
           Commissioner or any other officer authorised by the Central<\/p>\n
           Board may recover the amount by any one or more of the modes<\/p>\n
           provided in this section.\n<\/p><\/blockquote>\n
           (2)   If any amount is due from any person to any employer<\/p>\n
           who is in arrears, the Central Provident Fund Commissioner or<\/p>\n
           any other officer authorised by the Central Board in this behalf<\/p>\n
           may require such person to deduct from the said amount the<\/p>\n
           arrears due from such employer under this Act and such person<\/p>\n
           shall comply with any such requisition and shall pay the sum so<\/p>\n
           deducted to the credit of the Central Provident Fund<\/p>\n
           Commissioner or the officer so authorised, as the case may be:<\/p>\n<\/blockquote>\n
                 Provided that nothing in this sub-section shall apply to<\/p>\n
           any part of the amount exempt from attachment in execution of<\/p>\n
           a decree of a civil under Section 60 of the Code of Civil<\/p>\n
           Procedure, 1908 (5 of 1908).\n<\/p><\/blockquote>\n
           (3)(i) The Central Provident Fund Commissioner or any other<\/p>\n
           officer authorised by the Central Board in this behalf may, at<\/p>\n
           any time or from time to time, by notice in writing, require any<\/p>\n
           person from whom money is due or may become due to the<\/p>\n
           employer or, as the case may be, the establishment or any<\/p>\n
           person who holds or may subsequently hold money for or on<\/p>\n
           account of the employer or as the case may be, the<\/p>\n
           establishment, to pay to the the Central Provident Fund<\/p>\n
           Commissioner either forthwith upon the money becoming due
\n C.W.P. No. 4631 of 2007.                                                  -9-<\/span><\/p>\n
           or being held or at or within the time specified in the notice (not<\/p>\n
           being before the money becomes due or is held) so much of the<\/p>\n
           money as is sufficient to pay the amount due from the employer<\/p>\n
           in respect of arrears or the whole of the money when it is equal<\/p>\n
           to or less than that amount.\n<\/p><\/blockquote>\n
           (ii)    A notice under this sub-section may be issued to any<\/p>\n
           person who holds or may subsequently hold any money for or<\/p>\n
           on account of the employer jointly with any other person and<\/p>\n
           for the purposes of this sub-section, the shares of the joint-<\/p>\n
           holders in such account shall be presumed, until the contrary is<\/p>\n
           proved, to be equal.\n<\/p><\/blockquote>\n
           (iii)   A copy of the notice shall be forwarded to the employer<\/p>\n
           at his last address known to the Central Provident Fund<\/p>\n
           Commissioner or, as the case may be, the officer so authorised<\/p>\n
           and in the case of a joint account to all the joint-holders at their<\/p>\n
           last addresses known to the Central Provident Fund<\/p>\n
           Commissioner or the officer so authorised.<\/p>\n<\/blockquote>\n
           (iv)    Save as otherwise provided in this sub-section, every<\/p>\n
           person to whom a notice is issued under this sub-section shall<\/p>\n
           be bound to comply with such notice, and, in particular, where<\/p>\n
           any such notice is issued to a post office, bank or an insurer, it<\/p>\n
           shall not be necessary for any pass book, deposit receipt, policy<\/p>\n
           or any other document to be produced for the purpose of any<\/p>\n
           entry, endorsement or the like being made before payment is<\/p>\n
           made notwithstanding any rule, practice or requirement to the<\/p>\n
           contrary.\n<\/p><\/blockquote>\n
 C.W.P. No. 4631 of 2007.                                                -10-<\/span><\/p>\n
\n<\/blockquote>\n
           (v)     Any claim respecting any property in relation to which a<\/p>\n
           notice under this sub-section has been issued arising after the<\/p>\n
           date of the notice shall be void as against any demand<\/p>\n
           contained in the notice.\n<\/p><\/blockquote>\n
           (vi)    Where a person to whom a notice under this sub-section<\/p>\n
           is sent objects to it by a statement on oath that the sum<\/p>\n
           demanded or any part thereof is not due to the employer or that<\/p>\n
           he does not hold any money for or on account of the employer,<\/p>\n
           then, nothing contained in this sub-section shall be deemed to<\/p>\n
           require such person to pay any such sum or part thereof, as the<\/p>\n
           case may be, but if it is discovered that such statement was false<\/p>\n
           in any material particular, such persons shall be personally<\/p>\n
           liable to the Central Provident Fund Commissioner or the<\/p>\n
           officer so authoised to the extent of his own liability to the<\/p>\n
           employer on the date of the notice, or to the extent of the<\/p>\n
           employer’s liability for any sum due under this Act, whichever is<\/p>\n
           less.\n<\/p><\/blockquote>\n
           (vii) The Central Provident Fund Commissioner or the officer<\/p>\n
           so authorised may, at any time or from time to time, amend or<\/p>\n
           revoke any notice issued under this sub-section or extend the<\/p>\n
           time for making any payment in pursuance of such notice.<\/p>\n<\/blockquote>\n
           (viii) The Central Provident Fund Commissioner or the officer<\/p>\n
           so authorised shall grant a receipt for any amount paid in<\/p>\n
           compliance with a notice issued under this sub-section, and the<\/p>\n
           person so paying shall be fully discharged from his liability to<\/p>\n
           the employer to the extent of the amount so paid.
\n C.W.P. No. 4631 of 2007.                                                  -11-<\/span><\/p>\n<\/blockquote>\n
           (ix)   Any person discharging any liability to the employer<\/p>\n
           after the receipt of a notice under this sub-section shall be<\/p>\n
           personally liable to the Central Provident Fund Commissioner<\/p>\n
           or the officer so authorised to the extent of his own liability to<\/p>\n
           the employer so discharged or to the extent of the employer’s<\/p>\n
           liability for any sum due under this Act, whichever is less.<\/p>\n<\/blockquote>\n
           (x)    If the person to whom a notice under this sub-section is<\/p>\n
           sent fails to make payment in pursuance thereof to the Central<\/p>\n
           Provident Fund Commissioner or the officer so authorised he<\/p>\n
           shall be deemed to be an employer in default in respect of the<\/p>\n
           amount specified in the notice and further proceedings may be<\/p>\n
           taken against him for the realisation of the amount as if it were<\/p>\n
           an arrear due from him, in the manner provided in sections 8B<\/p>\n
           to 8E and the notice shall have the same effect as an attachment<\/p>\n
           of a debt by the Recovery Officer in exercise of his powers<\/p>\n
           under section 8B.\n<\/p><\/blockquote>\n
           (4)    The Central Provident Fund Commissioner or the officer<\/p>\n
           authorised by the Central Board in this behalf may apply to the<\/p>\n
           court in whose custody there is money belonging to the<\/p>\n
           employer for payment to him of the entire amount of such<\/p>\n
           money, or it if is more than the amount due, an amount<\/p>\n
           sufficient to discharge the amount due.<\/p><\/blockquote>\n
           (5)    The Central Provident Fund Commissioner or any officer<\/p>\n
           not below the rank of Assistant Provident Fund Commissioner<\/p>\n
           may, if so authorised by the Central Government by general or<\/p>\n
           special order, recover any arrears of amount due from an
\n C.W.P. No. 4631 of 2007.                                                  -12-<\/span><\/p>\n
            employer or, as the case may be, from the establishment by<\/p>\n
            distraint and sale of his or its movable property in the manner<\/p>\n
            laid down in the Third Schedule to the Income-tax Act, 1961 (43<\/p>\n
            to 1961).”                                   (emphasis supplied)<\/p>\n
             A perusal of the above section would show that the Recovery<\/p>\n
Officer who has been so authorised by the Central Board can proceed against<\/p>\n
the employer or against any person, if any amount is due to any employer<\/p>\n
from him, who is in arrears. Clause (ii) enjoins upon such persons to comply<\/p>\n
with any requisition made by the officer so authorised and is duty bound to<\/p>\n
pay the sum so deducted to the credit of the officer so authorised. Under<\/p>\n
clause 3(i), the authorised officer at any time or from time to time, by notice<\/p>\n
in writing, require any person from whom money is due or may become due<\/p>\n
to the employer or any person who holds or may subsequently holds money<\/p>\n
for and on account of employer or the establishment to pay the authorised<\/p>\n
officer either forthwith upon the money becoming due or being held or at or<\/p>\n
within the time specified in the notice (not being before the money becomes<\/p>\n
due or is held) so much of the money as is sufficient to pay the amount due<\/p>\n
from the employer in respect of arrears or the whole of the money when it is<\/p>\n
equal to or less than that amount and thereafter, clause 3(ii) gives powers to<\/p>\n
the authorised officer to issue notice to any person who holds or may<\/p>\n
subsequently hold any money for or on account of the employer jointly with<\/p>\n
any other person and shares joint holdership in such account shall have to<\/p>\n
pay the amount due until the contrary is proved, to be equal.<\/p>\n
             A perusal of these provisions clearly establishes that relevant<\/p>\n
date as tried to be put forth by the petitioner stating it to be the date of
\n C.W.P. No. 4631 of 2007.                                                  -13-<\/span><\/p>\n
receipt of notice and only dues which were present on that date to the<\/p>\n
employer is to be seen, cannot be accepted.\n<\/p>\n
             These provisions clearly spell out that not only on the date when<\/p>\n
the notice is served but subsequently also if any money becomes due to the<\/p>\n
employer or he subsequently holds money for or on account of the employer<\/p>\n
jointly, the same has to pay such amount to the authorised officer forthwith if<\/p>\n
it is available on the date the notice is received or on the date the same<\/p>\n
becomes due.      This however is limited to the amount which has to be<\/p>\n
recovered. Once the said amount as has been specified in the certificate of<\/p>\n
recovery issued against the employer is satisfied, no further remittance has to<\/p>\n
be made to the authorised officer.        That being the position as per the<\/p>\n
provisions referred to above, the contention of counsel for the petitioner<\/p>\n
cannot be accepted that it is only on the date when the notice is issued and<\/p>\n
the amount which is due to the employer on such date only is to be paid to<\/p>\n
the authorised officer.\n<\/p>\n
             The next submission which has been put forth that the<\/p>\n
transaction can be after the said date with the defaulter employer but only the<\/p>\n
amount due is to be recovered otherwise it would violate Article 19-G of the<\/p>\n
Constitution of India. In this regard, Section 8-G of the E.P.F. Act, needs to<\/p>\n
be looked into.     As per this section certain provisions of 2nd and 3rd<\/p>\n
Schedules    of   Income-tax   Act,1961     and   the Income-tax     (certified<\/p>\n
proceedings) Rules, 1962, as enforced from time to time shall apply with<\/p>\n
necessary modifications as if the said provisions and rules referred to the<\/p>\n
arrears of amount mentioned in Section 8 of the E.P.F. Act would be<\/p>\n
applicable. This means the recovery of the provident fund due by virtue of<\/p>\n
Section 8-G of the E.P.F. Act, can be effected as per the provisions of the
\n C.W.P. No. 4631 of 2007.                                                  -14-<\/span><\/p>\n
Income-tax Act and Rules which have been made applicable under the E.P.F.<\/p>\n
Act. Under these provisions of the Income-tax Act, 1961, one of the modes<\/p>\n
of recovery is by way of attachment and sale of immovable property which<\/p>\n
includes debts, shares etc. The term debts means actual money claim that<\/p>\n
has already become due though it may be payable on a future date, and also<\/p>\n
include a share of debts. Life Insurance Policy is ‘debt’ though payable on the<\/p>\n
death of the insured. A debt in order to be attachable, however, need not<\/p>\n
become payable at once. Under Rule 26(1)(i) a debt not secured by a<\/p>\n
Negotiable Instrument is attached by a written order of attachment<\/p>\n
prohibiting the creditor from recovering the debt and the debtor from making<\/p>\n
payment thereof until the further order of the Tax Recovery Officer. Any<\/p>\n
such payment (the amount of his debt) made by the debtor prohibited under<\/p>\n
26(1)(i) to the Tax Recovery Officer shall discharge him as effectually as<\/p>\n
payment to the party entitled to receive the same by virtue of Rule 26(3). By<\/p>\n
virtue of Rule 36(3)(b) of the Income Tax (Certificate Proceedings Rules,<\/p>\n
1962), the tax Recovery Officer may take further proceedings to recover the<\/p>\n
amount from the debtor as if the debtor where a defaulter in respect of whom<\/p>\n
the Tax Recovery Officer had drawn up a certificate under Section 2(2)(ii)<\/p>\n
for the Recovery of Arrear of Tax equal to the amount of debt where the<\/p>\n
debtor fails to make such payment within the time stipulated by the Tax<\/p>\n
Recovery Officer.\n<\/p>\n
             In the light of the above, the contention as raised by counsel for<\/p>\n
the petitioner cannot be accepted as this would be reasonable restriction<\/p>\n
falling within the ambit of Article 19-G of the Constitution of India and<\/p>\n
therefore, cannot be termed as violating the provisions of the E.P.F. Act as<\/p>\n
sought to be contended by counsel for the petitioner.\n<\/p>\n
 C.W.P. No. 4631 of 2007.                                                    -15-<\/span><\/p>\n
             A further perusal of Section 8-F of the E.P.F. Act would show<\/p>\n
that except for the exceptions provided under clause (iv) of sub section (3) of<\/p>\n
this section, every person to whom notice is issued under sub section (3)<\/p>\n
shall be bound to comply with such notice. Under clause(v) of sub section<\/p>\n
(3) any claim in relation to which a notice under sub section (3) has been<\/p>\n
issued arising after the date of notice shall be void as against any demand<\/p>\n
contained in the notice. This further shows that restrictions are reasonable<\/p>\n
and the noticee is bound to comply with the notice issued to him.<\/p>\n
             It is an admitted position by the petitioners that after issuance of<\/p>\n
C.P. 3 prohibitory orders, the petitioners have received money from other<\/p>\n
parties on behalf of M\/s Rana Mahindra Papers Limited, have made<\/p>\n
payments to M\/s Rana Mahindra Papers Limited and also have made<\/p>\n
payments on behalf of M\/s Rana Mahindra Papers Limited as is clear from<\/p>\n
the impugned order dated 16.03.2007.         Only three credit entries in the<\/p>\n
balance sheet of M\/s Rana Mahindra Papers Limited have been disputed by<\/p>\n
the petitioner in this Court. Rest of the credit entries have been admitted by<\/p>\n
them. Therefore, there can be no dispute with regard to the fact that in the<\/p>\n
light what has been held above, the prohibitory orders have been violated by<\/p>\n
the petitioners.   Section 8-F(3)(vi) of the E.P.F. Act would cover this<\/p>\n
situation, where a person to whom notice has been issued, objects to the<\/p>\n
notice by a statement on oath that the sum demanded or any part thereof is<\/p>\n
not due to the employer or that he does not hold any money for or on account<\/p>\n
of the employer and if it is found that the said statement was false in any<\/p>\n
material particular such person shall be personally liable to the officer<\/p>\n
authorised to that extent of his own liability to the employer on the date of<\/p>\n
notice, or to the extent of the employers liability for any sum due under this
\n C.W.P. No. 4631 of 2007.                                                  -16-<\/span><\/p>\n
Act, whichever is less. Section 8-F(3)(x) of the E.P.F. Act states that if the<\/p>\n
person to whom notice has been sent fails to make payment in pursuance<\/p>\n
thereof he shall be deemed to be an employer in default in respect of the<\/p>\n
amount specified in the notice and further proceedings may be taken against<\/p>\n
him for the realisation of the amount as if it were arrears due from him in the<\/p>\n
manner provided in Sections 8-B to 8-E of the E.P.F. Act and the notice shall<\/p>\n
have the same effect as an attachment of a debt by the Recovery Officer in<\/p>\n
exercise of his powers under Section 8-B of the E.P.F. Act. The petitioners<\/p>\n
having violated the prohibitory orders are, therefore, liable as an employer in<\/p>\n
default in respect of the amount specified in the notice. That being so, no<\/p>\n
fault can be found in the orders dated 16.03.2007, passed by the Recovery<\/p>\n
Officer, As the petitioners have not complied with the prohibitory orders<\/p>\n
dated 16.03.2007 within the period of seven days, the Recovery Officer has<\/p>\n
thereafter proceeded against the petitioners in accordance with law by<\/p>\n
addressing a letter dated 23.03.2007 to the Banker of the petitioners.<\/p>\n
Therefore, no illegality can be said to have been committed by the Recovery<\/p>\n
Officer.\n<\/p>\n
             Finding no merit in the present writ petitions, the same stand<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
                                      (AUGUSTINE GEORGE MASIH)
\n                                               JUDGE
\nFebruary 16, 2009.\n<\/p>\n
sjks.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court A.P. Enterprises Pvt. Ltd vs Regional Provident Fund … on 16 February, 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 4631 of 2007. Date of Decision : February 16, 2009. A.P. Enterprises Pvt. Ltd. …… Petitioner. Versus. Regional Provident Fund Organisation, and another. …… Respondents. CORAM:HON’BLE MR. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-184689","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nA.P. Enterprises Pvt. 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