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TMI Blog2015 (7) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... bolition) Act, 1970. The petitioner Company is registered with the Provident Fund Authorities and has a separate "exempted trust" under P.F. Code No.TN/4725. (b) One A. Govindaraj, a Licenced Contractor has been doing certain contract work for the petitioner Company, as and when required since 1995. Insofar as the Petitioner Company is concerned, the Contractor would supply labour, as was required by the Petitioner Company. The Contractor was given certain civil works to be done inside the Factory. The said Contractor employed 15 to 20 contract workmen inside the petitioner's factory and the Petitioner Company never employed the Contractor continuously. (c) The contractor applied for a separate P.F. Code number under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, and the same was allotted to him on 10.1.2003 with the Code No.TN/VL/38789 with retrospective coverage from 25.9.1995. (d) The Contractor had been deducting the employees share from December 2002 onwards and has been remitting it along with employer's share of contribution to the P.F authorities. (e) The Petitioner Company learnt that based on the report of the Enforcement Squad, Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner would also be liable for payment of the amounts as damages and interest and non-payment would amount to "default" and directing the petitioner Company to pay the amount immediately to the respondent, (j) Challenging the impugned order passed by the respondent, the petitioner approached this Court, by filing two writ petitions in W.P.Nos.7776 and 7777 of 2005 and this Court, while admitting those Writ Petitions, granted an order of Interim Stay. On 25.2.2010, this Court allowed the Writ Petitions and set aside the impugned order. (k) On 28.10.2011, the respondent issued a Show Cause Notice under Sec.14 B of the PF Act calling upon the petitioner to show cause why damages should not be imposed upon the petitioner. This was followed by a Notice cum levy order dated 31.10.2011. The petitioner, in their reply dated 12.6.2012, has stated that the proceedings under Sec.14 B of the Act is not maintainable and this Court had already quashed the proceedings and had given liberty to the respondent to proceed against the legal heirs of the Contractor. It was also stated in the reply that the said Contractor is an independent employer, having separate PF Code and the petitioner is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the respondent prayed for dismissal of the writ petition. 5. Mr.Sanjay Mohan, learned counsel for the petitioner submitted that since the contractor was allotted a separate PF Code number, the petitioner Company is not liable to pay any amount to the respondent. Further, the learned counsel for the petitioner submitted that since this Court had already allowed the writ petitions in WP Nos.7776 and 7777/2005, giving liberty to the respondent to initiate appropriate recovery proceedings as against the legal heirs of the contractor, the respondent cannot initiate proceedings against the petitioner Company. The learned counsel further submitted that the present proceedings, which was initiated against the petitioner Company after a lapse of several years, is liabe to be set aside. 6. In support of his contention, the learned counsel for the petitioner relied on the following judgments: (i) CDJ 1992 BHC 198 (K.T. Rolling Mills Pvt Ltd vs R.M. Gandhi and Others), wherein the Bombay High Court has held as follows: 19. In the instant case, the delay is 8 to 17 years. There is no explanation whatsoever for this delay from the Regional Provident Fund Commissioner. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel relied on paragraph-30 of Clause-3 of the EPF Scheme and submitted that the responsibility of the Principal employer to pay both the contributions payable by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor and also administrative charges. 10. On a careful consideration of the materials, the submissions made by the learned counsel on either side and the judgment relied on by the learned counsel for the petitioner, it is not in dispute that one A. Govindaraj is a licenced Contractor and he employed about 15 to 20 contract workmen inside the petitioner factory for doing certain civil work. 11. Earlier, the petitioner Company was not made a party and in their absence, proceedings were initiated against the Contractor and the petitioner Company came to know about the proceedings only when the Contractor contacted for an advance after having suffered to an order under Sec.7-A. The petitioner Company received a Notice under Section 8-F dated 23.2.2005, calling upon the petitioner to withhold any amount that may be payable to the said Contractor and pay over the same to the respondent. 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of this Court, the Contractor viz., Mr.A. Govindaraj should be treated as an independent employer. 19. That apart, when this Court had already set aside the orders passed by the respondent in WP Nos.7776 and 7777 of 2005 and gave liberty to the respondent to initiate recovery proceedings as against the legal heirs of the contractor viz., Mr.A. Govindaraj, the present proceedings initiated against the petitioner Company cannot stand. 20. That apart, the respondent has not challenged the order passed by this Court in those writ petitions. Therefore, the order passed by this Court in the writ petitions have become final. 21. In the absence of any appeal having been filed by the respondent against the observations made in those writ petitions, the proceedings initiated by the respondents against the petitioner Company under Sec.14 B of the Act cannot stand and it is liable to be set aside. 22. The reasoning of the respondent interpreting the order of this Court made in the writ petitions in W.P.Nos.7776 and 7777 of 2005 is erroneous and this Court has given liberty to the respondents only to proceed against the legal heirs of the contractor. If this Court was of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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