Court No. - 36
Case :- WRIT - C No. - 28743 of 2018 Petitioner :- M/S Kesha Sales Private Limited And Another Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Devansh Rathore,Mr. Navin Sinha, Sr. Advocate Counsel for Respondent :- A.S.G.I.,Sachindra Upadhyay
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Navin Sinha, learned Senior Counsel assisted by Sri Devansh Rathore, learned counsel for the petitioners and Sri Sachindra Upadhyay, learned counsel appearing for the respondent nos. 2 and 3.
The present petition is directed against the show cause notice dated 27.6.2018 whereby the petitioners have been directed to explain as to why necessary action, as per the Employees' Provident Funds and Miscellaneous Act,1952, (hereinafter referred to as 'the Act') be not taken against it for default in making deposits with the Employees' Provident Fund Organisation.
This notice is under challenge on the ground that the notice itself states that the petitioner is a subsidiary company and the Provident Fund dues are of M/s Modi Telefibre Ltd. The assertion in the show cause notice that the petitioners being a subsidiary company is manufacturing and selling the products under the name of M/s Modi Telefibres Ltd. would not be sufficient to hold the petitioners liable as an "employer" within the meaning of Section 2 (e) of the Act, 1952.
Submission is that the petitioner is a separate entity from that of the M/s Modi Telefibre Ltd. which is the company in liquidation. The appropriate course for the respondents would be to move an application before the Official Liquidator seeking deposits of the dues of the said company.
Reliance is placed upon the judgment of the Apex Court in Regional Provident Fund Commissioner and others Vs. ABS Spinning Orissa Ltd. and Ors., 2009 (120) FLR 385 to submit that in any case, the petitioners being a separate legal entity and not an employer cannot be confused to hold it liable for the dues of the employer which is admittedly M/s Modi Telefibre Ltd.
In rebuttal to these submissions of learned counsel for the petitioner, Sri Sachindra Upadhyay, learned counsel for the respondents submits that the present petition is premature inasmuch as, the petitioners seek to challenge the show cause notice to which they have submitted a reply on 10th August, 2018 before the Recovery Officer.
In case of any dispute with regard to liability of the petitioners, it is open for them either to press their objection or to approach the Regional Provident Fund Commissioner who may address their grievance.
Considering the said submissions and noticing the fact that a detailed reply has been filed before the Recovery Officer on 10th August, 2018, the present petition is being disposed of with the observation as follows :-
(i) The petitioners may file a fresh representation before the Regional Provident Fund Commissioner, Meerut within a period of two weeks alongwith the certified copy of this order, annexing the reply dated 10.8.2018 submitted before the Recovery Officer.
(ii) In case, such a representation is made, a reasoned and speaking order shall be passed thereon, in accordance with law, by the Regional Provident Fund Commissioner, Meerut expeditiously, preferably, within a period of six weeks from the date of submission of the representation.
Till such a decision is taken by the Regional Provident Fund Commissioner or for a period of six weeks from today, whichever is earlier, no coercive action shall be taken against the petitioners pursuant to the show cause notice dated 27.6.2018 Order Date :- 24.8.2018 Pratima