IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 OP.No. 28918 of 2001(P) ----------------------- PETITIONER(S): --------------- REMADEVI AMMA, NELLIKUNNAM P.O., VELANGARA, KOTTARAKKARA, KOLLAM. BY ADV. SRI.BECHU KURIAN THOMAS SRI.PRAKASH PUTHIADAM RESPONDENT(S): --------------- 1. THE COMMISSIONER, REGIONAL PROVIDENT FUND OFFICE, PATTOM, THIRUVANANTHAPURAM. 2. ENFORCEMENT OFFICER, INSPECTORATE OF PROVIDENT FUNDS, HOSPITAL ROAD, KOLLAM. 3. RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND, BHAVISHYANIDHI BHAVAN, THIRUVANANTHAPURAM. 4. SHRI. M. YOOSUF, CHEPPACHERRY HOUSE, VADAKKEVILA, AYATHIL, KOLLAM. ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. FOR R1TO3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 28918/2001. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF AGREEMENT DT. 14-1-1997. EXT.P2 ABSTRACT COPY OF PAGES 1 TO 3 OF THE LICENCE. EXT.P3 COMPLAINT IN ST 207/2000. EXT.P3(a) COMPLAINT IN ST 743/2001. EXT.P3(b) COMPLAINT IN ST 744/2001. EXT.P3(c) COMPLAINT IN ST 745/2001. EXT.P3(d) COMPLAINT IN ST 746/2001. EXT.P3(e) COMPLAINT IN ST 747/2001. EXT.P3(f) COMPLAINT IN ST 748/2001. EXT.P3(g) COMPLAINT IN ST 749/2001. EXT.P3(h) COMPLAINT IN ST 750/2001. EXT.P3(i) COMPLAINT IN ST 751/2001. EXT.P3(j) COMPLAINT IN ST 75S/2001. EXT.P3(k) COMPLAINT IN ST 753/2001. EXT.P3(l) COMPLAINT IN ST 754/2001. EXT.P4 DEMAND NOTICE DT. 25-5-2001. EXT.P5 SHOW CAUSE NOTICE DT. 24-7-2001. EXT.P6 LETTER DT. 12-9-2001. EXT.P7 DEED AGREEMENT DT. 14-1-1998. EXT.P8 ORDER DT. 22-3-2000 IN C.M.P.14912/2000 IN O.P.NO.8912/2000. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R1(a) ENQUIRY REPORT DT. 5-12-1997. EXT.R1(b) MAHAZAR DT. 28-11-1997 EXT.R1(c) PERFORMA DT. 28-11-1997. EXT.R1(d) COPY OF PROSECUTION COMPLAINT. EXT.R1(e) 7A PROCEEDINGS DT. 7-6-2000. EXT.R1(f) PROSECUTION NOTICE DT. 29-11-2000. EXT.R1(g) COPY OF ACKNOWLEDGMENT CARD. EXT.R1(h) PROSECUTION SANCTION ORDER DT. 27-2-2001. EXT.R1(i) REVENUE RECOVERY CERTIFICATE DT. 11-4-2001. EXT.R1(j) DEMAND NOTICE DT. 25-5-2001. EXT.R1(k) SHOW CAUSE NOTICE DT. 24-7-2001. EXT.R1(l) LETTER DT. 12-9-2001. EXT.R1(m) COPY OF FORM NO. 5A. EXT.R1(n) 1ST PAGE OF DEED OF LICENCE. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 28918 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11th February, 2009. J U D G M E N T Petitioner's husband was the owner of a cashew factory. Disheartened by mounting debts, her husband committed suicide. Thereupon, the factory devolved upon the petitioner and her children. The petitioner leased the factory to the 4th respondent by Ext. P1 dated 14-1-1997. Such transfer was endorsed in the factory licence and the transfer was duly recognised by the authorities under the Factories Act. Thereafter, the 4th respondent was running the factory. The 4th respondent defaulted payment of dues under the Employees Provident Funds and Miscellaneous Provisions Act. On the ground that the petitioner, being the owner of the factory, is also liable for payment of the amounts due under the Act, proceedings were initiated against the petitioner as well as the 4th respondent. It resulted in Ext. P3 series of criminal complaints before the criminal court in which both the petitioner and the 4th respondent were made accused. Ext. P4 demand notice was also issued to the petitioner for an amount of Rs. 3,55,285/- being contributions payable under the Act for the period during which the 4th respondent was conducting the factory pursuant to the lease executed by the petitioner and the transfer of factory licence in favour of the 4th respondent. Since no payment was made, Ext. P5 notice for arrest and detention of the petitioner was issued by the 3rd respondent. Ext. P6 order of attachment of movable properties of the petitioner was also issued. The petitioner is challenging Ext. P3 series as well as Exts.P.4, P5 and P6. 2. The contention of the petitioner is that the petitioner is not liable for the amounts demanded as contributions for the period during which the 4th respondent was conducting the factory in so far as the petitioner was not the 'employer' as defined under the Act for O.P. No. 28918/2001. -: 2 :- the period in question. The petitioner also refers to clause 9 of Ext. P1, by which the 4th respondent had undertaken to pay off the provident fund dues during the period of lease. According to the petitioner, going by the definition of 'employer' in Section 2(e), the petitioner is not the employer of the factory in question. 3. A counter affidavit has been filed by the respondents who opposes the contentions of the petitioner. According to them, going by the definition in Section 2(e), the owner is also liable along with the occupier of the factory and by virtue of Section 17B also, the petitioner is liable. 4. I have heard counsel on both sides and considered the arguments advanced before me. 5. Neither the lease in favour of the 4th respondent executed by the petitioner nor the knowledge of that lease by the respondents are denied by the respondents. It is also not denied before me that pursuant to Ext. P1 lease, the factory licence had also been transferred in the name of the 4th respondent. In clause 9 of Ext. P1 executed between the petitioner and the 4th respondent, it is specifically stated thus: “9. The licensee shall be liable to meet all labour liabilities like wages, contribution to the E.S.I., Provident Fund, Welfare Fund and all other benefits to which the workers of the factory are entitled and shall periodically convince the licensor that all such payment are made in time during the currency of the licence.” Section 2(e) defines the expression 'employer' thus: “(e) “employer” means:- (i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier of the factory, including the agent of such O.P. No. 28918/2001. -: 3 :- owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f) of sub-section (1) of section 7 of the Factories Act, 1948 (63 of 1948), the person so named; and (ii) in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent.” Section 2(k) defines the expression “occupier of the factory” thus: “(k) “occupier of a factory” means the person who has ultimate control over the affairs of the factory, and, where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory.” Going by the said definition, the owner or occupier of the factory is the employer. Here, admittedly, the factory has been transferred by way of lease by the petitioner to the 4th respondent. The factory licence has also been transferred in the name of the 4th respondent. Therefore, the 4th respondent is the occupier of the factory and as a result the employer. He had also specifically contracted with the petitioner to pay off the provident fund amounts due for the period during which he holds the lease. 6. Section 17B of the Act reads thus: “17B. Liability in case of transfer of establishment:- Where an employer, in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or licence 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 up to the date of such transfer: Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.” O.P. No. 28918/2001. -: 4 :- Going by Section 17B, a transferor is liable only in respect of the period up to the date of such transfer. For the period up to the date of transfer, the transferee also would be liable, but limited to the value of the assets obtained by the transferee by such transfer. That essentially means that after the date of transfer by way of lease, the transferee alone would be liable for the dues under the Act and not the transferor. A conjoint reading of Sections 2(e), 2(k) and 17B, I have no doubt in my mind that after the date of transfer, the transferor would cease to be the employer as defined under the Act. 7. Of course, the learned standing counsel for the Provident Fund Organisation would raise a contention that subsequently the lease period expired and the factory reverted to the petitioner, which would be a transfer coming within Section 17B and therefore the petitioner would be liable as a transferee. I am not satisfied that such an interpretation is contemplated under Section 17B. On expiry of a lease, there is no transfer of the properties back to the transferor because the property all along continued to be that of the transferor. Therefore, there is no requirement of the lessee transferring the property back to the owner. The law relating to property or the law of contract in India does not envisage a transfer on the expiry of the period of lease. On expiry of the lease period, the contract of lease is terminated and the property automatically reverts to the lessee for which a transfer by the lessee to the transferor is necessary. Further, under the proviso to Section 17B, the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer. Here, even assuming that the reversion of the property to the lessor after the expiry of the lease amounts to a transfer, no assets of the lessee are obtained by the transferor from O.P. No. 28918/2001. -: 5 :- the lessee on such transfer, in so far as the assets belonged to him all along notwithstanding the lease. In the above circumstances, I am not inclined to accept the contention of the 4th respondent that as the owner of the factory in question, the petitioner would also be liable for amounts due from the 4th respondent under the Act. The result of the above discussion is that all proceedings initiated against the petitioner for non-compliance with the provisions of the Act as an employer during the period when the 4th respondent was running the factory as a lessee are unsustainable. Consequently, Ext.P3 series and Exts. P5 and P6 are also unsustainable to the extent it makes the petitioner liable under the Act. Accordingly, they are quashed. However, I make it clear that the respondents would be free to continue proceedings already initiated against the 4th respondent for the amounts due from him. The original petition is allowed as above. S. Siri Jagan, Judge. Tds/ O.P. No. 28918/2001. -: 6 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 28918 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 11th February, 2009.