- (1.) Prior to initiating the present writ petition the writ petitioners in the instant writ proceeding initiated another writ proceeding being W. P. No. 8478 (W) of 2003 wherein the writ petitioners challenged (1) summons dated 2nd June, 2003 directing the writ petitioner No. 1 (hereinafter referred to as the company) to appear in person under section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the P. F. Act) and (2) a reminder dated 02.06.2003 regarding non-submission of monthly returns, both issued by Assistant Provident Fund Commissioner(Ex), West Bengal (hereinafter referred to as A. C.). W. P. No. 8478 (W) of 2003 was disposed of by an order dated 11.06.2003 passed by D. P. Kundu, J. The relevant part of the aforesaid order dated 11.06.2003 is set out hereinbelow: "Heard the learned advocates for the parties and perused the averments made in the writ application. I dispose of the writ application by the following order. Pursuant to the communication dated 02.06.2003 which is at page 92-93 of the writ application, the petitioners shall appear before the appropriate authority on 13.6.2003 and shall make out their case before the appropriate authority. The appropriate authority shall decide the matter strictly in accordance with law after affording just, fair and reasonable opportunity of oral hearing to the writ petitioners. While deciding the matter, the appropriate authority should take into consideration the averments made in paragraphs 9,28,30 and 38 of the writ application and also should consider annexure P-2 of the writ application. The appropriate authority after considering the entire matter including the averments made in paragraphs 9,28,30 and 38 of the writ application and after considering the Annexure P-2 of the writ application, shall pass a reasoned order. While passing the reasoned order, the appropriate authority should also consider the prayer of the writ petitioners regarding payment by instalments. A copy of the reasoned order shall be communicated to the writ petitioners in accordance with the provisions of law. So long the reasoned order is not communicated to the writ petitioners in accordance with the provisions of law, no coercive action should be taken against the petitioners under the provisions of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 and the Employees' Provident Fund Scheme, 1952. As no affidavit-in-opposition has been filed by the respondents the allegations made in the writ application are deemed to have been denied. Learned advocate for the respondents is directed to communicate the gist of the order to the respondents who are directed to act upon such communication."
(2.) Pursuant to the aforesaid order dated 11.06.2003 passed in W. P. No. 8478(W) of 2003, A. C. passed (1) order dated 24.06.2003 in the matter of enquiry under section 7A of the P. F. Act against the company, Code No. WB/9888, for determination of the dues for the period 7/2002 to 3/2003 and (2) order dated 24.06.2003 in the matter of enquiry under section 7A of the P. F. Act against the company, Code No. WB/5143, for determination of dues for the period 7/2002 to 3/2003. Those two orders are hereinafter referred to as the aforesaid two orders. The reasons for passing the aforesaid two orders are same. Under these circumstances suffice it to refer to the order dated 24.06.2003 passed by A. C. in respect of Code No. WB/9888. The relevant parts of the order dated 24.06.2003 passed by A. C. in connection with the Code No. WB/9888 are set out hereunder: "a) I have considered the returns submitted by the estt. Annexure P-2 of the writ petition and the report submitted by the squad of EOs. In the statutory returns filed, the estt. has admitted the same dues as are stated in the report of the squad. Further, the dues have been verified during the course of hearing and admitted by the estt. Hence, there is no dispute with regard to quantum of dues. (Emphasis added) b) In view of the order of the Hon'ble High Court, I have also considered the submissions made by the estt. in paras 9,28,30, 38 & P-2 of the writ petition as well as its prayer for instalments. In para 9 of the writ petition, the estt. has narrated the financial health of the company and events/circumstances which has led to it. In para 28 apprehension that recovery of P. F. dues may lead of closure and loss of employment to a large number of employees has been expressed. In para 30, the estt. has made an assurance that current dues shall be paid from 4/ 03 and it has bona fide intention to liquidate the dues prior to 4/03 in instalments. In para 38 the estt has submitted that unless the Hon'ble Court allows payment of dues prior to 4/03 in instalments along with payment of current dues, it shall suffer irreparable loss and injury. P-2 is the dues-payment statement submitted by the estt. to the Hon'ble Court. c) From a look at the Balance Sheet of the company, annexed to the writ petition, it indeed appears that the company is in bad shape but that has no connection with determination of dues. As far as payment is concerned, an estt may liquidate the same on approval of the competent authority in instalments subject to fulfilment of laid down conditions which as explained below, the estt. do not satisfy at the moment. (Emphasis added.) d) Regarding apprehension of loss of employment, it is worth mentioning here that the office of the RPFC has received complaints from the employees also urging immediate intervention and positive steps. One such complaint has reference No. RBEU/AKG dt. 2.5.03 received from POBBIALAC WORKS EMPLOYEES UNION. P. O.-Garifa. Naihati. 24-Pgn(N) under the signature of its General Secretary. The said letter is taken on record. (Emphasis added) e) As has been stated hereinbefore, an estt may avail the facility of instalments provided it satisfies the laid down conditions and the competent authority approves the proposal". (Emphasis added) f) However, there is no provision for liquidation of employees' share of contribution in instalments as it is not at all dependent on the financial health of the estt. It is employee's part of the wages which he entrusts his employer for deposition in his P.F. account. Non- deposition of the same is a serious offence of criminal breach of trust attracting provisions of sections 406 and 409 of IPC. (Emphasis added) g) The estt. has also not been able to establish its bona fide intentions to pay the current dues from 4/03 which is evident from the fact that though the same should have been paid within 15.5.03, it had not been paid till the date of filing of the writ petition i.e. 9.6.03. h) Payment of current dues within time is one of the conditions for consideration of any instalment proposal. Finally, P-2 being dues- payment statement submitted by the estt before the Hon'ble Court the same has been considered during determination of dues. (Emphasis added). i) Under the circumstances, the estt. is not eligible for instalments at this stage for its dues prior to 3/03 for the very reason that it has neither cleared entire employees share of contribution along with ROL nor made payment of current dues. It is. however, clarified that the undersigned is not the competent authority to grant instalments and has only stated the rule position." (Emphasis added)
(3.) Before proceeding further it is made clear that in the present writ proceeding the writ petitioners have not challenged the determination of the amount due from the company under the P. F. Act and the Scheme by the A. C. contained in the,aforesaid two orders. The aforesaid two orders have two distinct parts which are severable from each other. One part relates to the determination of amount due under section 7A(l)(b) of the P. F. Act. The other part relates to observations and comments regarding eligibility of the company for availing itself the facility of instalments to liquidate the provident fund arrears. In the present writ proceeding the writ petitioners have challenged the observations and comments made by A. C. in the aforesaid two orders regarding eligibility of the company to avail itself of the "scheme of grant of instalment facility" to liquidate the provident fund arrears.;