PRADIP KUMAR BASU Vs. REGIONAL PROVIND FUND COMMISSIONER

JUDGEMENT

(1.) In a recovery proceeding under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (1952 Act for short), a warrant of arrest having been issued, the petitioner had appeared in the proceedings and gave an undertaking to pay the amount in instalments. Pursuant to such undertaking some instalment was paid. Thereafter, this writ petition has been moved on the ground that the petitioner was a Manager of the Partnership Firm, against which the liability is being sought to be enforced and that the said Partnership firm has since been dissolved. Submissions:

(2.) Mr. Mishra, learned Counsel for the authority, contends that after the recovery proceedings is initiated, in view of Section 8-D of the 1952 Act, the certificate cannot be questioned before the Recovery Officer. This Court cannot go behind the certificate. He further contends that the petitioner had never raised the dispute, which is now being raised in this writ petition. On the other hand, the petitioner had appeared and had given an undertaking. Now he cannot go back on his undertaking. Therefore, this writ petition should fail.

(3.) Learned Counsel for the petitioner, on the other hand, contended that such undertaking was given under constraint. Inasmuch as, the petitioner had appeared pursuant to a warrant of arrest and had to give an undertaking, in order to save himself from being arrested and sent to prison. Therefore, such undertaking having been given under constraint and not out of his free volition, cannot be enforced against him, unless he is liable in law, to pay the same. According to him, he was a Manager of the Partnership Firm, since dissolved. But as regards the liability that have been fixed upon him, in view of the definition of employer, contained in Section 2(e) of the said Act, the question is dependent on the entrustment of the Management. Unless the management is entrusted, the Manager shall not be an employer, within the meaning of the said Act. He further contends that the Manager could not be treated to be an occupier, as defined in Section 2(k) of the said Act, until and unless he is so nominated by submitting the appropriate forms, within the meaning of the Factories Act, 1948, (1948 Act for short). In the present case, the establishment was a factory and as such the Factories Act is applicable in such case and therefore, without the petitioner's name being notified, in terms of Section 7 of the Factories Act, the petitioner cannot be held liable. According to him, unless the petitioner is liable in law, no amount of admission can make him liable, particularly, when such admission is under constraint. Therefore, the proceedings for recovery against the petitioner should be quashed and may be proceeded against the owners and occupiers, as the case may be. He had also relied on various decisions, to which reference would be made at appropriate stage.