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Judgment
K.K. Tated, J.—Heard the learned counsel for the parties.
The learned counsel appearing on behalf of petitioner makes a statement across the bar that present Petition to be treated against only order dated 14th February, 2011 passed by the authority u/s 8F(Iv) of the Employees'' Provident Fund & Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the said Act") attaching the Bank Account of the Petitioner held In Union of India, Gokul Nagar. Thane being Account No. 90127. He states that as alternate remedy Is available against the order passed by authority under sections 7-A and 7-B of the said Act, the Petitioner will take appropriate steps to challenge the same. Liberty granted to the Petitioner to take appropriate steps challenging the order passed by authority u/s 7-A and 7-B of the said Act.
In the present case, the authority passed an order dated 7th October, 2010 u/s 7A of the said Act, calling upon the Petitioner to pay a sum of Rs. 43,10,971. Thereafter, the Petitioner filed Application u/s 76 of the said Act for review, the said Application decided by the authority on 20th January, 2011 rejecting the petitioner''s contention for review.
The learned counsel appearing on behalf of Petitioner submits that the authority without following the procedure as prescribed u/s 8-B of the said Act issued the order dated 14th February, 2011 u/s 8F(iv) of the said Act and recovered the amount of Rs. 43,10.971 which is contrary to law. He submits that it is mandatory on the part of the authority to issue a certificate to the Recovery Officer as prescribed u/s 8-B of the said Act. Section 8-B of the said Act reads thus:
8B. Issue of Certificate to the Recovery Officer.--(1) Where any amount is in arrear u/s 8, the authorised officer may issue, to the Recovery Officer, a certificate under his signature specifying the amount of arrears and the Recovery Officer, on receipt of such certificate, shall proceed to recover the amount specified therein from the establishment or, as the case may be, the employer by one or more of the modes mentioned below:
(a) attachment and sale of the movable or immovable property of the establishment or as the case may be the employer;
(b) arrest of the employer and his detention in prison;
(c) appointing a receiver for the management of the movable or Immovable properties of the establishment or, as the case may be, the employer;
Provided that the attachment and sale of any property under this section shall first be effected against the properties of the establishment and where such attachment and sale is insufficient for recovering the whole of the amount of arrears specified In the certificate, the Recovery Officer may take such proceedings against the property of the employer for recovery of the whole or any part of such arrears.
(2) The authorised officer may Issue a certificate under sub-section (1), notwithstanding that proceedings for recovery of the arrears by any other mode have been taken,
He submits that without following the procedure prescribed under the said Act, the authority recovered a sum of Re. 43,10,971, therefore, the impugned order dated 14th February, 2011 passed by the Regional Provident Fund Commissioner is liable to be set aside and Respondent be directed to refund the sum of Rs. 43,10,971 with interest at the rate of 8% from 16th March, 2011.
When this court called upon the learned counsel appearing on behalf of Respondent to explain whether the authority has issued any recovery certificate as required u/s 8-B of the said Act. He shown his inability to point out these facts. Even after going through the Respondent''s affidavit-in-reply dated 23rd June, 2011, no where they explained whether the authority followed the procedure as prescribed u/s 8-B and other sections of the said Act.
In view of these facts, it is crystal clear that the Respondent without following the procedure as prescribed u/s 8-B of the said Act, without issuing any recovery certificate and without declaring the Petitioner as defaulter passed order dated 14th February, 2011 and recovered the amount: As the amount is recovered by the Respondent without following due procedure, the same is liable to be set aside. Therefore, the impugned order dated 14th February, 2011 passed by the Regional Provident Fund Commissioner is set aside.
8.. Respondent No. 2 is directed to refund the amount of Rs. 43,10,971 recovered by them from the Petitioner''s Bank account from Union Bank of India, Kapurbavdi Branch. Dhanalaxmi Industrial Estate, Gokul Nagar, Thane within two weeks from the receipt of the copy of this order.
It is made clear that Respondents have liberty to follow the procedure as prescribed under the Act for implementing their order u/s 7-A and 7-B of the said Act, if they want. With these directions, Petition is disposed of,
No order as to costs.