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Judgment
This writ petition along with applications have been listed under the heading ‘To Be Mentioned’ at the instance of respondent no.5 for being
moved on urgent basis. Affidavits-in-opposition and reply are filed. It is taken up for hearing. Petitioner is a Government of West Bengal Enterprise
which seeks to move this Court impugning order dated 16th /17th February, 2015 issued by Regional Provident Fund Commissioner-II (Damages),
Kolkata, West Bengal, in exercise of powers conferred under section 8F(3)(i) of Employees’ Provident Fund and Miscellaneous Provisions Act,
1952.
Mr. De, learned advocate appears on behalf of Petitioner and submits, respondent no.5 was his client’s contractor. Provident Fund Authority
moved against said respondent. Earlier similar notice was issued against his client and his client has already deposited Rs.24,82,341/- with the authority
and at present only Rs.4,24,888/is due and payable by his client to said respondent. He refers to letter dated 17th July, 2014 of his client to submit, the
authority has been misled by said respondent to believe that his client has a liability towards it to the tune of Rs.63,93,121/-.
Mr. De submits that said respondent had approached Employees’ Provident fund Appellate Tribunal. Tribunal by its order dated 7th November,
2014 directed the authority not to take any coercive action against his client without order obtained from it. However, by reason of impugned demand
thereafter and threat contained therein of coercive action, his client is before Court.
Mr. Chaudhuri, learned advocate appears on behalf of private respondent and submits, sum in excess of Rs.66,00,000/- is due and payable by
petitioner to his client. He refers to letter dated 30th December, 2015 disclosed in his client’s affidavit-in-opposition wherein petitioner said it had
withheld money owing to his client. Relevant text of the said letter is reproduced below:
“ With reference to your prayer vide memo under reference, please note that your prayer has been examined by the Competent Authority. Few
cases are pending against your Company for non-compliance of P.F. Act before various Apex Court, High Court, as such, we may release your
withheld amount (at actual) only on submission of Bank Guarantee for a period of 02(two) years duration with a provision for extension of the said
guarantee till disposal of the cases. Your consent on the above proposal may be forwarded to this office for further processing of the prayer.â€
Mr. Prasad, learned advocate appears on behalf of the authority and submits, this material was not before the Tribunal and there is no restraint by its
order dated 7th November, 2014 on recovery of impugned demand. Sub-section 3 Clause (i) in section 8F of the Act requires, inter alia, any person
who holds or may subsequently hold money for or on account of the employer or as the case may be, the establishment, to pay to the Central
Provident Fund Commissioner forthwith the money being held or within the time specified in the notice. Therefore, it is found, petitioner cannot hold
money due and payable to respondent no.5 as security or for any other reason when impugned demand has been made.
Petitioner is directed to pay to the prescribed authority aggregate of sums withheld and due to respondent no.5, within a period of three weeks from
date of communication of this order. The demand for the same being subsequent to order dated 7th November, 2014 made by the Appellate Tribunal
appears to have arisen on material that was not there before it when the order was passed. The authority, however, must produce a copy of this order
before the Appellate Tribunal prior to resort to coercive measures against petitioner upon expiry of time granted by this Court to it to pay. With above
directions, this writ petition is disposed of. This order also disposes of applications being C.A.N. 1308 of 2018 and C.A.N. 1309 of 2018.