MAHALAXMI COTTON MILLS LTD Vs. STATE

JUDGEMENT

(1.) THIS is an application by the liquidator raising the important point of his liability to pay the employer's contribution of the Provident Fund under the Employees' Provident Fund Act. 1952 and particularly under Rule 29 of the Employees' Provident Fund Scheme. Rule 29 provides as follows:-

(2.) THE factory in this case is a Cotton Mill. It was being run by the company Mahalaxmi Cotton Mills Ltd. , which went into liquidation on January 10, 1955. Mr. P. K. Pal was appointed Official Liquidator. A special order was made on March 21, 1955 appointing Mr. Pal as the Official Liquidator and specially empowering him to carry on the business of the Mill and the factory with express direction upon him to sell the same as a "going concern". Mr. Pal was also appointed a Receiver in the suit brought by the United Bank of India Ltd. , against the company and was also directed to work the mill in accordance with the orders passed in the winding up application. On May 31, 1958 the Regional Provident Fund Commissioner, West Bengal, wrote to the liquidator asking for payment of current provident fund contribution as required by the Employees' Provident Funds Act, 1952 and the scheme framed thereunder.

(3.) ON behalf of the Official Liquidator it is contended that the Employees' Provident Funds Act, 1952 does not apply to the Official Liquidator. The point is of considerable importance. It is a case of first impression. No decision in India has been shown to me which has decided this point. It will be necessary, therefore, to examine the Act and the scheme thereunder and to carefully consider the arguments advanced on behalf of the Official Liquidator. Mr. Chatterji, learned counsel for the Official Liquidator, bases his whole argument on the contention that the Official Liquidator Joes not answer the test of an "employer" or "occupier" as defined under the Employees'. Provident Funds Act, 1952. He develops his argument by saying that section 6 of the statute provides that the contribution shall be made by the employer to the fund. Therefore, he argues that there must be an "employer" with in the meaning of the Act. Similarly, he draws my attention to section 8 of the Act where the expression used is "amount due from an employer". "employer" is defined by section 2 (e) of the Act to mean:-" (i) The owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f) of sub-section (1) of section 7 of the Factories Act, 1948, the person so named; (ii) In relation to any other establishment, the person who or the authority which has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent. " the "occupier of a factory" is defined by section 2 (k) of the Act to mean :-"the person who has ultimate control over the affairs of the factory and, where the said affairs are entrusted to a managing agent, such agent shall be deemed to be an occupier of the factory. " on the basis of the expression "ultimate control" in sec. 2 (e) and (k) of the Act, it is contended on behalf of the Official Liquidator that he is not in ultimate control. The ultimate control is said to be in this Court. He is said to be only an officer of the Court who works under the directions of the Court.