IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.01.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.23482 of 2009 and M.P.Nos.1 and 2 of 2009 Kovai Erode Mavatta Thiravida Panchalai Thozhilalar Mattrum Nirvaga Oozhiyargal Sangam, Regn.No.1102/Kovai (Affiliated to LPF) represented by its Seretary K.Nagamanickam,S/o.S.Krishnasamy 04/351, Bodipatty, Udumalpet Tiruppur District. .... Petitioner Vs. 1. The Assistant Provident Fund Commissioner (Enforcement), O/o.Regional Provident Fund Commissioner, Sub Regional Office, Coimbatore 2. The Recovery Officer O/o.The Recovery Officer Employees Provident Fund Organisation Dr.Balasundaram Road Coimbatore – 641 018 3. K.Parthasarathy Spinning Mills rep.by its Managing Partner T.Gopalakrishnan Udumalpet Taluk Coimbatore District. .... Respondents Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records pertaining the order of attachment dated 20.2.2009 issued by the second respondent vide his proceedingsEPFCP2TN/CBE/LO/Enf D/19246/CC2 (25)/09 and quash the same and further direct the respondents herein to provide adequate opportunity to the workmen belonging to the petitioner's Union employed in the third respondent mills in the matter of recovery of the arrears Provident Fund contribution from the Management of third respondent mills. For Petitioner :: Mr.K.V.Shanmuganathan For Respondent :: Mr.M.Jayaraman for RR.1 and 2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Petitioner is a trade union. They have challenged the order dated 20.2.2009 issued by the second respondent- Recovery Officer attached to the Employees Provident Fund Organisation and for a direction to provide adequate opportunity to the workmen belonging to the petitioner's Union employed in the third respondent mills in the matter of recovery of the arrears of Provident Fund contribution from the Management of third respondent mills. The petitioner came forward to file the present writ petition after noticing that there was a sale proclamation on 18.6.2009 and 16.10.2009 and subsequently publications are effected in two news papers on 22.10.2009. In that paper publication, the second respondent has stated that a sum of Rs.17,54,803/- is due to the P.F.Department from the third respondent mill and therefore the machineries were brought under auction as notified in the paper publication. The petitioner in their affidavit have stated that the P.F.Department has allowed the provident fund dues to be accumulated and if the machineries are sold from their existence, their employment will be lost and therefore they sought for present direction. 2. The claim of the petitioners from their employer vis-a-vis the dues payable to the P.F.Department came up for consideration by a recent Judgment of the Supreme Court reported in JT 2009 (13) SC 106 [MAHARASTRA STATE CO-OPERATIVE BANK LIMITED Vs. THE ASSISTANT PROVIDENT FUND COMMISSIONER AND OTHERS],wherein in paragraph No.20, the Supreme Court has held as follows: "20. We shall now consider the question whether the provision contained in Section 11(2) of the Act operates against the other debts like mortgage, pledge, etc. Answer to this question is clearly discernible from the plain language of Section 11. The priority given to the dues of the provident fund etc. in Section 11 is not hedged with any limitation or condition. Rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. Any doubt on the width and scope of Section 11 quo other debts is removed by the use of expression 'all other debts' in both the sub-sections. This would mean that the priority clause enshrined in Section11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. Sub-section (2) was designedly inserted in the act for ensuring that the provident fund dues of the workers are not defeated by prior claims of secured or unsecured creditors. This is the reason why the legislature took care to declare that irrespective of time when a debt is created in respect of the assets of the establishment, the dues payable under the Act would always remain first https://hcservices.ecourts.gov.in/hcservices/ charge and shall be paid first out of the assets of the establishment notwithstanding anything contained in any other law for the time being in force. It is, therefore, reasonable to take the view that the statutory first charge created on the assets of the establishment by sub-section (2) of Section 11 and priority given to the payment of any amount due from an employer will operate against all types of debts." 3. In the light of the same, the prayer made by the petitioner cannot be countenanced by this Court. It is for the petitioner to make appropriate claim before the Recovery Officer in case there are any dues. Otherwise, the dictum of Supreme Court will prevail. Hence, the writ petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar usk Copy to: 1. The Assistant Provident Fund Commissioner (Enforcement), O/o.Regional Provident Fund Commissioner, Sub Regional Office, Coimbatore 2. The Recovery Officer O/o.The Recovery Officer Employees Provident Fund Organisation Dr.Balasundaram Road Coimbatore – 641 018 + 1 CC To Mr.K.V.Shanmuganathan, Advocate CC SR 4540 W.P.No.23482 of 2009 JP (CO) RH (2.2.10) https://hcservices.ecourts.gov.in/hcservices/