(1.) This writ appeal by the Employees Provident Fund Organization, represented by its Assistant Provident Fund Commissioner, is directed against the order, dated 08.02.2018, passed in W.P.(MD) No.20803 of 2017.
(2.) The first respondent filed the writ petition challenging the order, dated 27.07.2017, passed by the appellant, under Section 14B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (in short, "the Act").
(3.) The case of the first respondent / writ petitioner is that he is the proprietor of a cashew nuts factory, namely, M/s.Usha Cashews and had leased out the factory to the second respondent on 01.04.2006 and the lease was extended upto 31.08.2011. Thereafter, the factory was leased out to the third respondent and during 2016, it has been leased out to one Mr.Ullas. Referring to the lease agreement entered into between the first respondent and the respondents 2 and 3, it is submitted that the physical possession of the factory was handed over to the lessees and they undertook to pay the Employees Provident Fund dues and the Employees State Insurance contributions to their workers. It is stated that when the lease was in vogue, the appellant Organization did not issue any notice to the first respondent determining the contribution payable under Section 7A(1)(b) of the Act and no certificate of recovery was issued under Section 8B of the Act. Despite the disputed period being from July, 2008 to December, 2015, for the first time, during January, 2017, summons were issued to the first respondent by the Regional Provident Fund Commissioner, Nagercoil, directing to appear for enquiry, under Sections 14B and 7Q of the Act. The notice stated that the employer of M/s.Aswin Cashew Company / third respondent was summoned to appear for the enquiry and the the proprietor of M/s.Usha Cashews, namely, the first respondent was also summoned to appear for enquiry. The first respondent is stated to have responded to the summons and appeared and mentioned to the Authorities that he has let out the factory during the relevant period and not liable to pay any damages or interest. Further, it was contended that no notice has been served on the first respondent and it is false to state that notice was served. It is further submitted that the notice directing to appear for enquiry on 15.03.2017 was received and since the first respondent was indisposed, he sent a letter requesting adjournment. It is further submitted that on 21.03.2017, the Regional Provident Fund Commissioner issued another summons to the first respondent for enquiry on 20.04.2017 and on which date, the first respondent appeared and submitted documentary evidence to prove that the factory was leased out to the second respondent initially and thereafter, to the third respondent and subsequently, to one Mr.Ullas. Subsequently, on 28.04.2017, the first respondent received summons from the appellant to appear for enquiry on 11.05.2017, for which he sent a representation on 10.05.2017 reiterating his earlier stand and that no liability can be fastened on him. Subsequently, the first respondent applied under the Right to Information Act and sought for information, from which, he came to know that the order under Section 7A(1)(b) of the Act was passed on the second respondent for the period from September, 2009 to May, 2010 determining the contribution at Rs.32,28,200/- and after deducting the amount paid, a sum of Rs.32,43,749/- was directed to be paid. Subsequently, the appellant passed a review order under Section 7B of the Act and redetermined the contribution for the period from September, 2004 to May 2010 at Rs.5,53,019/-. Subsequently, the appellant passed another order determining the contribution for the period from June, 2010 to August, 2011. It is further submitted that the appellant also issued a show-cause notice to the third respondent proposing to determine the damages and interest for the period from July, 2008 to August, 2011 and from April, 2012 to December, 2015. Simultaneously, the appellant relieved the third respondent from the liability stating that he has paid the dues during the period of his lease, when the factory was in his possession. It is further submitted that the appellant has ordered the damages and interest to be paid by the respondents 1 and 2 jointly and severally. Thus, the first respondent contended that no liability can be fastened on him in the light of the lease deeds and all the orders, under Section 7A of the Act, were passed only against the second respondent apart from notice having been not served on him.