1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9521 of 2011 G.Shakespeare : Petitioner Vs. 1.The Assistant Provident Fund Commissioner, Employees' Provident Fund Organisation, Sub-Regional Office, N.G.O.'B' Colony, Tirunelveli-627 007. 2.The Recovery Officer, Employees' Provident Fund Organisation, Sub-Regional Office, N.G.O.'B' Colony, Tirunelveli-627 007. : Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records relating to the order of Proclammation of Sale passed by the 2nd respondent in his proceedings No.TN/TNY/75024/CD I/Recovery/2011 dated 26.07.2011 and quash the same as illegal. For Petitioner :Mr.M.E.Ilango For Respondents:Mr.K.Murali Shankar ORDER Among other grounds raised challenging the proclamation of sale passed by the Recovery Officer, Employees' Provident Fund Organisation, Tirunelveli/ the second respondent herein, in his proceedings No.TN/TNY/75024/CD I/Recovery/2011 dated 26.07.2011, the main ground of challenge of the writ petitioner is that where any amount is in arrears under Section 8 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, the recovery officer, on receipt of certificate from the authorised officer, the Recovery Officer should first proceed to recover the amount therein from the establishment and if the same does not satisfy the whole of the arrears specified in the certificate, recovery should be proceeded against the properties of the employer. 2.Section 8-B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 reads as follows: 8B:Issue of certificate to the Recovery Officer: (1) Where any amount is in arrear under Section 8, the authorised officer may issue, to the Recovery Officer, a certificate https://hcservices.ecourts.gov.in/hcservices/ 2 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 and 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.” 3.It is the case of the writ petitioner that without taking recourse to attachment and sale of the property of the establishment, the impugned civil proclamation has been issued on 26.07.2011 bringing the personal property of the Managing Director of M/s.Mygy Marine Products Private Limited, Tirunelveli District. 4.When the matter came up for hearing on 24.08.2011, Mr.Murali Shankar, learned counsel for the respondents was directed to ascertain as to whether the recovery officer has taken any steps to attach and bring the property of the establishment for sale for realising the arrears under the Employees Provident Funds and Miscellaneous Provisions Act, 1952. 5.Today, when the matter came up for hearing by way of lunch motion, the learned counsel for the respondents submitted, that the provisions under Section 8B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 has not been followed. His submission is placed on record. He also prayed for suitable directions to the respondents to proceed against the property of the establishment i.e M/s.Mygy Marine Products Private Limited, Tirunelveli District. 6.Recording the submission of the learned counsel for the respondents 1 & 2, the impugned order of proclamation of sale dated 26.07.2011, bringing the personal property of the petitioner, for sale, is set aside. Liberty is given to the respondents to proceed against the property of the establishment i.e M/s.Mygy Marine Products Private Limited, Tirunelveli District in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 3 7.This Writ Petition is ordered accordingly. Consequently, connected M.P.Nos.1 and 2 of 2011 are closed. No costs. Sd/- Assistant Registrar (Records) /True copy/ Sub Assistant Registrar(C.S) To 1.The Assistant Provident Fund Commissioner, Employees' Provident Fund Organisation, Sub-Regional Office, N.G.O.'B' Colony, Tirunelveli-627 007. 2.The Recovery Officer, Employees' Provident Fund Organisation, Sub-Regional Office, N.G.O.'B' Colony, Tirunelveli-627 007. vs W.P.(MD)No.9521 of 2011 25.08.2011 TR : 26.08.2011: 3p/3c : IT https://hcservices.ecourts.gov.in/hcservices/