Sister-in-Charge, Society of Servants of Mary Convent vs Assistant Provident Fund Commissioner (Enforcement)

P.K. Misra, J.—The petitioner has challenged the orders passed by the authorities under the provisions of the Employees'' Provident Funds

and Miscellaneous Provisions Act, 1952, in this writ petition.

The petitioner is incharge of the Society of Servants of Mary Convent, Gudalur, which is a society registered under the Societies Registration

Act. It is stated that 31.79 acres of abandoned tea and coffee plantations land in Gudalur village were purchased by the Society. After such

purchase, 10.50 acres of land had been leased out to Servants of Mary Convent, Bangalore, under a registered lease deed dated January 9, 1989,

and 10.79 acres of land were leased out to Sister Superior, Servants of Mary Convent, Gudalur, the present petitioner.

Notices were issued by the provident fund authorities calling upon the petitioner to pay contribution. Objections were filed by the petitioner. It

was decided that since the previous establishment had been found liable to pay provident fund contribution, the petitioner being the purchaser of

the estate was also liable. In the review application filed u/s 7 of the Act, similar order has been passed. Against the said order, the present writ

petition has been filed.

It has been contended by the petitioner that only the lands forming the estate had been purchased by the Society, possessing of which has been

subsequently leased out to the petitioner and it cannot be said that there has been any transfer of previous establishment. It is further contended that

unless it is found that 20 or more persons are employed, no liability under the Act can be fastened and the authorities without considering these

aspects have called upon the petitioner to pay the contribution merely on the basis that previously such contribution has been paid by the previous

owner.

Liability appears to have been fixed as per the provisions contained in Section 17-B of the Act. The aforesaid provision is extracted hereunder:

17-B. Liability in case of transfer of establishment; Where an employer in relation to an establishment, transfers that establishment in whole or in

part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred

shall jointly and severally be liable to pay the contribution and other sums due from the employer under any provision of this Act or the scheme or

the pension scheme or the insurance scheme, as the case may be, in respect of the period up to the date of such transfer -

Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.

Section 17-B only relates to liability in case of transfer of establishment. The proviso to Section 17-B makes it very clear that liability of the

transferee shall be limited to the value of the assets obtained by the transferee by such transfer.

In the present case, the contention of the petitioner is that the land coming part of the previous tea estate has been purchased and there is no

transfer of establishment. Moreover, it has been contended that in the absence of any finding that the petitioner had employed more than 20

persons, the respondent should not have fastened any liability on the petitioner.

In the present case, the question of clearing the liability till the date of transfer does not crop up for determination. The question is as to whether

the petitioner can be said to be the employer or the owner of the establishment and whether the provisions of the Act are applicable. A perusal of

the impugned order does not indicate that the authorities have considered these aspects. There is no finding that more than 20 persons are

employed. In the absence of any such finding, the order cannot be sustained. The respondent is required to reconsider the matter in accordance

with law. If necessary, both the parties shall be given opportunity to adduce further materials. The writ petition is accordingly allowed without any

costs. Consequently, W. M. P. No. 14212 of 1995 is closed.