JAYANTA KUMAR BISWAS, J. - (1.) The petitioner in this Article 226 petition dated June 22, 2009 is aggrieved by the order of the Recovery Officer, Employees' Provident Fund Organisation, dated May 28, 2009, Annexure P13 at p. 165, that being the employer in relation to the establishment of Bowreah Cotton Mills Co. Ltd. he is liable to pay the provident fund dues for recovery of which the certificate proceedings were initiated.
(2.) Before the officer, who gave the decision in compliance with an order of this Court, the petitioner specifically raised the point that the establishment being a factory, he was not the employer in relation thereto. It is evident from the impugned order that the officer did not decide the question. Before him the department's representative submitted that the office of the organisation had no information about any person named as occupier of the establishment. The representative did not dispute that the establishment is a factory. The officer held that the petitioner being the managing director of the company "should shoulder the responsibility of default made by his offices in implementing various" provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
(3.) In my view, the recovery officer has committed a jurisdictional error. He could call upon the petitioner to deposit the provident fund dues payable by the establishment, only if the petitioner was the employer in relation thereto. Though the question was raised, the officer did not decide it. He was required to decide it in the light of the provisions of S.2(e) of the Act. Section 2(e) defines the word "employer." In view of the provisions of Sections 8, 8-B and 8-C of the Act, in execution of the certificate the officer was empowered to proceed against the establishment as well as the employer in relation thereto. Hence for proceeding against the petitioner it was necessary to decide whether he was the employer in relation to the establishment. But as I have already pointed out, the question, though was specifically raised, was not decided by the officer. In my view, the matter should be remitted to the officer for decision according to law.;