T. RAHIYAN BEEVI Vs. RECOVERY OFFICER

JUDGEMENT

(1.) THE petitioner admits to be the owner of a cashew factory situated in Kollam District, who claims to have leased it out to different persons from 1990 onwards. In fact the entire controversy revolved around the period from March, 2000 to February, 2001 and March, 2001 to October, 2001, for which assessment orders were passed by Exhibits P1 and P2. Admittedly during the said period, the petitioner had leased out the cashew factory to the 4th respondent. Exhibits P1 and P2 are also proceedings initiated after an enquiry under Section 7A of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the Act") in respect of M/s.Sali Cashew Company, Peroor, Kuttichira, Kollam, the Proprietrix of which is the 4th respondent herein. Both proceedings were initiated against M/s.Sali Cashew Company and for both the periods it was concluded as per Exhibits P1 and P2, finding the Proprietrix of M/s.Sali Cashew Company, i.e., Smt.S.Vasantha, who is the employer in respect of the said establishment, liable to pay the amounts assessed therein for the aforementioned periods. It is also pertinent that in Exhibit P1 the representative of the petitioner had appeared before the Assistant Provident Fund Commissioner and had submitted that the cashew company owned by the petitioner had been leased out to the 4th respondent during the aforementioned periods. This was accepted by the Assistant Provident Fund Commissioner, who assessed the amounts due from the employer of the establishment; as against the 4th respondent, who is the Proprietrix. It is to be noticed that the 4th respondent Proprietrix is represented by counsel in the writ petition and submits that she does not dispute the liability during the said period, i.e., the period covered by Exhibits P1 and P2, and that they had remitted the entire dues as per Exhibits P1 and P2 assessment orders.

(2.) THE fact of satisfaction of Exhibits P1 and P2 is denied by the learned counsel for the Provident Fund Commissioner. However, the said satisfaction may not be really relevant in considering the liability of the petitioner for the amounts assessed as per Exhibits P1 and P2. In any event, it is to be noticed that the 4th respondent accepts the liability as per Exhibits P1 and P2. The writ petition was necessitated by the issuance of Exhibit P6 "Notice for Settling a Sale Proclamation", issued against the petitioner herein. The petitioner having been issued with such notice, sent a lawyer notice dated 28.6.2007 (Exhibit P7) pointing out that the petitioner had no liability for the provident fund dues, since the establishment was carried on by another person. To the lawyer's notice, a reply was sent by the Recovery Officer of the Employees' Provident Fund Organisation, but addressed to the lawyer, claiming dues/damages as under:

(3.) IN the counter affidavit, the Provident Fund Organisation has again produced the orders of the aforementioned period between March, 2000 to October, 2001 and has also produced Exhibits R1(c) and R1(d), being notice of demand to defaulter, issued in pursuance of the assessment orders. Both Exhibits R1(c) and R1(d) refers to Sali Cashew Co. and Bismilla Cashew Industries, who were shown as the owner. It is not known as to who was representing Bismilla Cashew Industries. It is also very evident that before the enquiry under Section 7A or before the proceedings were finalised by Exhibits P1 and P2, no notice was issued to Bismilla Cashew Industries. Exhibit R1(c) is the demand pursuant to Exhibits P1 and P2 assessment orders [Exhibits R1(a) and R1(b)]. Exhibit R1(d) relates to the period April, 1994 to February, 2000, which is not covered either by Exhibits P1 and P2 [Exhibits R1(a) and R1(b) produced by the Organisation]. In fact, as noticed above, Exhibits P1 and P2 are again produced by the Organisation as Exhibits R1(a) and R1(b). The assessment order, which led to the notice of demand evidenced by Exhibit R1(d), has not been produced by the Provident Fund Organisation.