- (1.) THIS appeal has been filed by the Assistant provident Fund Commissioner challenging the order passed by the learned single Judge dated 18th September, 2007 in W. P. No. 12455 (W) of 2007. The respondent Nos. 1 and 2 filed the aforesaid writ petition challenging various orders passed by the Assistant Provident Fund Commissioner under the employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Provident Fund Act ). By these orders the writ petitioners had been directed to pay the balance amount within fifteen days of the receipt of the orders, failing which recovery action and proceedings for prosecution as provided under the Act and the Scheme framed thereunder and section 406/409 of the Indian Penal Code shall be initiated without any further notice. The petitioners had challenged the orders on numerous grounds. The points of law involved in the writ petition were formulated by the petitioners thus: "1]. Whether the determination of provident fund dues in a proceeding under section 7a of the Act of 1952 can be provisional and the order dated 11th april, 2007 passed in the instant case is sustainable as the same discloses provisional determination dues? 2]. Whether the order dated 11th April, 2007 passed ex parte in violation of the principles of natural justice and section 7a of the Act of 1952 denying due opportunity of hearing to the petitioners is sustainable or not? 3]. Whether the impugned order dated 11th April, 2007 not being a speaking one and having been passed without considering the payments already made is valid or not? 4]. Whether the demands, order of attachment of proceeds of sale of tea, show-cause notices etc. subsequent to the impugned order dated 11th April, 2007 are sustainabie or not? 5]. Whether demands can be raised or prosecution can be made beyond the reasonable period?"
(2.) IN support of these points of law, factually, it had been pleaded that the petitioners Poobang Tea Garden were originally owned by Duncan Brothers. In 1969 it was sold to I. P. Karnani. Between 1975-1980 it was leased to Tea sales and Allied Industries Private Limited. As the tea garden had been running into losses, it was totally closed on 21st August, 1980. It remained closed for a period of four years. In 1984 the petitioners brought and took over the tea garden, when it was in a pitiable condition. Again the management changed hands in the year 1985. The new management reopened the Tea Garden, and started running the same, with their own financial resources. They were unable to secure any financial aid from their Bank, i. e. , Bank of Baroda. However, there were agitations due to which a lock out was declared by the management from 1st of October, 1992. On or about 23rd September, 1999 the then Enforcement officer lodged complaints with the Officer-in-Charge under sections 406 and 409 of the Indian Penal Code against the management for non-payment of provident fund dues. The petitioners filed Writ Petition No. 18936 (W) of 2000 in this court wherein this Court passed the following order on 8th February, 2001: "heard the learned Advocates for the parties. The learned Advocate for the provident Fund Authorities, in his usual fairness, submitted that the matter can be decided by the Provident Fund Commissioner. This Court, therefore, directs the Provident Fund Commissioner to decide the matter in accordance with law within three weeks from the date of communication of this order. A copy of the writ application is to be served upon the Provident Fund commissioner, West Bengal on or before next Monday (12. 2. 2001 ). Until the matter is decided by the Provident Fund Commissioner, no further steps, as suggested by the parties, will be taken up by the authority and if any adverse order is passed by the Provident Fund Commissioner, the same shall remain stayed at least for a week. I make it clear that I have not gone into the merits of the case as the matter is to be adjudicated upon by the Provident Fund Commissioner. The writ petition is thus disposed of. If an urgent xerox certified copy of this order, if applied for, the same may be supplied as early as possible. "
(3.) IN spite of the order passed by this Court, the SDJM continued with the criminal proceedings in G. R. Case No. 220 (1) of 1999 against the petitioner No. 11 and the management in the meantime. The petitioners, therefore , filed the writ Petition No. 18328 (W) of 2001 challenging the continuation of the criminal proceedings and implementation of the order passed by this Court on 8th february, 2001. On 24th December, 2001 this Court issued directions to implement the order dated 8th February, 2001 within four weeks from the date of communication of the order. In the meantime on 06. 12. 2002 the work at the tea Garden had to be suspended due to the illegal activities of the workers. The garden was reopened on 27. 06. 2003 after intervention of the Minister-in-Charge of the Labour Department. In spite of the continuous labour problems which have been faced by the petitioners the Assistant Provident Fund commissioner, Sub-regional Office, Darjeeling issued letter dated 13th April, 2004 intimating the petitioner that the authority had quantified and/or determined the outstanding provident fund dues in respect of Poobang Tea estate up to 2002-03 and there was a short deposit of Rs. 1,46,527,07. The petitioners were directed to deposit the aforesaid short deposit amount immediately by letter dated 13th April, 2004. The petitioners entered into correspondence with the Assistant Provident Pund Commissioner seeking details about the short deposit amount monthwise. It was also stated that as soon as the details are furnished the amount will be deposited. In the meantime poobang Tea Estate was declared sick by the Tea Board by order dated 18th january, 2005. A subsidy up to 5% subject to a celling limit of 35 lakhs to 50 lakhs was to be paid to the petitioner, on furnishing certain particulars as per the format provided in the letter 18th January, 2005. Since the petitioners failed to make out the short deposit, notices were issued to the petitioners under section 7a of the Provident Fund Act even for the period of 2002-03. According to the petitioners the notices had been issued haphazardly. Copies of two such notices dated 27th July, 2005 and 23th August, 2005 have been attached to the petition. It is alleged that fresh determination was being made for the periods prior to 2002-03 for which the determination had already been made. The petitioners were directed to attend the office of the Assistant Provident Fund commissioner at 11-00 a. m. , but no date of hearing was mentioned. The notices, however, made it clear that it had been clearly endorsed in red ink to the effect ''last notice before warrant to arrest is issued". Since the petitioners did not attend any of the hearings, order was issued on 29th November, 2005 mentioning therein that the petitioners were intentionally avoiding appearance before the authority concerned. The auctioneers of the tea of the petitioners were informed that the amount which was due and payable to the Provident Fund commissioner from the petitioners was to remain attached till further orders. The petitioners, therefore, filed an application being CAN 15826/05 in connection with W. P. No. 18328 (W) of 2001, inter alia, praying for a direction upon the authorities to allow the petitioners to deposit the amount of Rs. 1,46,527. 07 as demanded by letter dated 13th April, 2004 and the order restraining the authorities from taking any step or penal action against the petitioners for the period of 2002-03. During the pendency of the aforesaid CAN application warrants of arrest were issued against the petitioner No. 1. However, by letter dated 12th December, 2005 the Assistant Provident Fund Commissioner had revoked the attachment order and the warrant of arrest. According to the petitioners the Assistant Provident Fund Commissioner concerned had fixed the dates of hearing and issued several notices up to 27th February, 2006 without serving notice additionally upon the learned Advocate-on-Record of the petitioner. However, without hearing the petitioners the Assistant Provident fund Commissioner had for the first time issued a notice under section 7a of the Provident Fund Act fixing 4th April, 2006 as the next date of hearing. On 8th March, 2006 a proper notice in compliance with the order of the Hon'ble high Court dated 24th December, 2001 was issued. Ultimately by order dated 27th April, 2006 the Assistant Provident Fund Commissioner determined the dues for the period of August, 2005 to December, 2005 in the sum of rs. 5,45,123/ -. The petitioner-company was directed to pay the same, failing which recovery action and prosecution would have been initiated. This order was objected to by the petitioner on the ground that month wise statement of dues had not been furnished to the petitioner. Thereafter, the Assistant provident Fund Commissioner passed another order under section 7a on 9th may, 2006 for the period May, 2004 to July, 2005 in the sum of Rs. 10,15,273/ -. When the petitioners failed to pay, show-cause notice was issued on 8th August, 2006 directing the petitioner to show-cause why they should not be prosecuted under sections 14 and 14a of the Act of 1952 for non-deposit of the provident fund and the allied dues for a sum of Rs. 2,44,160/- for the period of August, 2005 to December, 2005. Another show-cause notice dated 8th August, 2006 was issued in relation to the period January, 2006 to June, 2006 for non-payment of a sum of Rs. 3,48, 484/ -. Another notice was also issued on 22nd August, 2006 intimating the petitioners that warrant of arrest would be issued and property of the petitioners would be attached in case the dues were not paid. On 31st august, 2006 after hearing the parties, this Court passed an order in CAN No. 15826 of 2005 setting aside the notice dated 28th October, 2005. The petitioners were, however, directed to deposit a sum of Rs. 1,46,527. 07 pursuant to the notice dated 13th April, 2004. It was further directed that if there is any outstanding dues for any year, appropriate action may be taken by the Provident fund Authorities in accordance with law. Thereafter, the petitioners made an application for recalling the order dated 31st August, 2006 passed by this Court in W. P. 18328 (W) of 2001 including CAN No. 7084 of 2006. The petitioners continued with challenging the notices and orders issued by the competent authority for one reason or the other till ultimately the present writ petition had been filed challenging the orders dated 11th April, 2007 and 21st May, 2007. Along with the writ petition the petitioners had filed an application for stay of operation of the numerous orders which had been passed in various proceedings, i. e. letter dated 24th January, 2007, letter dated 31st March, 2007, 2nd April, 2007, order dated 11th April, 2007 and 9th May, 2007 and the show-cause notice dated 21st May, 2007.;