w w w . L a w y e r S e r v i c e s . i n



Sasikumar, Assistant Registrar/general Manager, Ayurdhara Pharmaceuticals v/s Assistant Provident Fund Commissioner & Others

    W.P.(C) No. 3581 of 2020 (W)

    Decided On, 20 February 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE V. RAJA VIJAYARAGHAVAN

    For the Petitioner: T.M. Chandran, S. Sujith, Advocates. For the Respondents: Thomas Mathew Nellimoottil, Senior Counsel.



Judgment Text

1. The Petitioner herein is the General Manager of Ayurdhara Pharmaceuticals, a Unit of the Kerala State Federation of SC/ST Development Co-operative Limited. He has approached this Court challenging Ext.P1 order, which is dated 23.1.2020, issued by the 1st Respondent requiring him to show cause why warrant of arrest should not be issued.

2. Sri. T.M. Chandran, the learned Counsel appearing for the Petitioner, submitted that Ext.P1 order cannot be sustained in view of Section 8-B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. He would contend that the Proviso to Section 8-B would say that the attachment and sale of any property mentioned in sub-clause (a) should be exhausted first, before the Recovery Officer proceeds under sub-clause (b) & (c).

3. In response, Sri. Thomas Mathew Nellimoottil, the learned Standing Counsel appearing for the Respondents, submits that the notice under Section 7-A was challenged by the Petitioner herein before this Court and this Court, by Judgment, dated 16.5.2017, had granted the Petitioner herein 12 installments to clear off a sum of Rs.14,40,343 due towards the Organization. The Petitioner committed default and paid only two installments. Thereafter, proceedings under Section 8-F was initiated on 18.9.2019 for realizing the amounts due to the Organization. He would contend that Ext.P1 is merely a Show Cause Notice asking the Petitioner herein to appear before the Officer on 12.2.2020 and the apprehension of the Petitioner that he would be arrested and detained is misconceived. The learned Counsel submitted that the Petitioner be directed to appear before the 1st Respondent and furnish a statement.

4. I have considered the submissions advanced. Section 8-B of the Employees' Provident Funds and Miscellaneous Provisions Act reads as follows:

"8-B. Issue of Certificate to the Recovery Officer.- (1) Where any amount is in arrear under Section 8, the Authorised Officer may issue, to the Recovery Officer, a Certificate under his signature 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, as the case may be, the Employer by one or more of the modes mentioned below:

(a) attachment and sale of the movable or immovable property of the establishment or, as the case may be, the Employer;

(b) arrest of the Employer and his detention in prison;

(c) appointing a receiver for the Management of the movable or immovable properties of the establishment or, as the case may be, the Employer:

Provided that the attachment and sale of any property under this Section shall first be effected against the properties of the establishment and where such attachment and sale is insufficient for recovering the whole of the amount of arrears specified in the Certificate, the Recovery Officer may take such proceedings against the property of the Employer for recovery of the whole or any part of such arrears.

(2) The Authorised Officer may issue a certificate under sub-section (1), notwithstanding that proceedings for recovery" of the arrears by any other mode have been taken."

5. Thus, there cannot be any cavil that the attachment and sale of any property under Section 8-B shall first be affected against the properties of the establishment and only when such attachment and sale is insufficient for recovering the whole of the amount of arrears specified in the Certificate, can the Recovery Officer proceed under sub-clause (b) & (c) of sub-clause (1) of Section 8-B.

6. In that view of the matter, the Officer shall initially proceed to recover the amount specified therein from the establishment or, as the case may be,

Please Login To View The Full Judgment!

the Employer by one or attachment and sale of the movable or immovable property of the establishment or, as the case may be, the Employer. Only after exhausting the above mode, if any amounts are still due, shall the Officer proceed to arrest the Petitioner and detain him in prison. I direct the Petitioner to appear before the 1st Respondent on 3.3.2020 and furnish his statement. This Writ Petition is disposed of.
O R