1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.10.2011 CORAM: THE HONOURABLE Mr.JUSTICE K.CHANDRU W.P(MD)No.5803 of 2011 and M.P(MD)No.1 of 2011 P.Sathi Kumari Amma .. Petitioner Vs. 1.The Assistant Commissioner Employees Provident Fund Organisation, Divisional Office, No.10A/3, St. Thomas Road, Tirunelveli – 627 011. 2.The Enforcement Officer, Employees Provident Fund Organisation, D.No.151/2, Avvai Shanmugam Salai, Meenakshipuram, Nagercoil – 001. 3.The Recovery Officer, Sub Regional Office, Employees Provident Fund Organisation, No.66, Water Tank Road, Nagercoil – 001. .. Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for all connected records pertaining to passing the impugned order dated 28.04.2011 in E.P.F.C.P.13 No.TN/SRO/NGL/46249/RECY/C.C32/2011 on the file of the third respondent and quash the same and consequently direct the respondents to reconsider the assessment of the Employees Provident Fund on the basis of the record to be submitted by the petitioner and to pass such further or other orders. For Petitioner : Mr.D.Selvanayagam For Respondents : Mr.V.S.V.Venkateshwaran O R D E R The petitioner is an employer. In the present writ petition, the petitioner has come forward to challenge the proclamation of sale made by the Employees Provident Fund Organisation. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The proclamation was made for the purpose of bringing the property of the petitioner, including land and building, for sale towards claiming the arrears payable to the Department. The said claim was made towards the payment of arrears in respect of the damages under Section 14-B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 together with interest under Section 7-A running into Rs.18,20,958/-. 3. When the matter came up on 01.06.2011, notice of motion was ordered. Pending notice of motion, this Court granted an interim stay without any condition. On notice from this Court, Mr.V.S.V.Venkateswaran, learned standing counsel for the Employees Provident Fund Organisation appears. 4. The contentions raised in the affidavit filed in support of the writ petition was that the school run by the petitioner had only a strength of 40 students and staff strength did not exceed beyond 19 and the school itself was closed during the academic year 1992 and ceased to function thereafter and the petitioner has purchased the property belonging to a company and it was incorporated with the consent of other board members and no notice was given to the company. However it must be noted that the petitioner cannot contend that they have purchased the property without knowing the prior charge to the Employees Provident Fund Organisation over the said properties for satisfying their claims. If they had purchased the property without being aware of encumbrance of the property, they should suffer for the claims. At the same time, they cannot contend that by stepping into the shoes of the previous owners liability by stating that no notice was given to the said employer. In fact, it is not even their case that they are running transport establishment. They have only acquired the property from the previous school, which had got into liability to make payment to the department and the liability fixed on them was never questioned in any higher forum and when once liability falls on an employer and if he is unable to satisfy the same, then it is open to the Employees Provident Fund Organisation to execute the order by bringing the property to sale. Even in cases of a transfer of any establishment under Section 17-B, where an employer, in relation to an establishment, transfers that establishment in whole or in part by sale, gift, lease or license or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under any provision of this Act or the Scheme or [the [Pension] Scheme or the Insurance Scheme], as the case may be, in respect of the period upto the date of such transfer. 5. Apart from this, under Section 11(2) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, the Employees' Provident Fund Organisation, without prejudice to the provisions of Section 11(1), can have the first charge over the assets of the establishment and shall notwithstanding anything contained in any other law for the time being in force and be paid in priority to all other debts. The nature of the power under Section 11(2) came to be considered by the Hon'ble Supreme Court vide Judgment in Maharashtra State Cooperative Bank Limited v. Assistant Provident Fund Commissioner and Others reported in (2009)10- Supreme Court Cases-123. https://hcservices.ecourts.gov.in/hcservices/ 3 6. In the light of the above, I find no reason to interfere in the proclamation of sale made by the Department and accordingly the writ petition stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (Records) /True copy/ Sub Assistant Registrar To 1.The Assistant Commissioner Employees Provident Fund Organisation, Divisional Office, No.10A/3, St. Thomas Road, Tirunelveli – 627 011. 2.The Enforcement Officer, Employees Provident Fund Organisation, D.No.151/2, Avvai Shanmugam Salai, Meenakshipuram, Nagercoil – 001. 3.The Recovery Officer, Sub Regional Office, Employees Provident Fund Organisation, No.66, Water Tank Road, Nagercoil – 001. Smn SR : 08.11.2011 : 3p/4c W.P(MD)No.5803 of 2011 and M.P(MD)No.1 of 2011 14.10.2011 https://hcservices.ecourts.gov.in/hcservices/