IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13866 of 2009 Raju Kumar Sinha, Son of Late Kamal Nayan Prasad Sinha, resident of Jehanabad Court area near Gaya More, P.S.-Jehanabad, District-Jehanabad. -Petitioner. VERSUS 1. The Commissioner, Employee Provident Fund, Union of India, New Delhi. 2. The Regional Provident Fund Commissioner, Bihar, Patna. 3. The Assistant Provident Fund Commissioner (Compliance), Bihar, Patna. 4. The Regional Provident Fund Commissioner (Recovery), Bihar, Patna. 5. The Recovery Officer, Provident Fund, R. Block, Patna. -Respondents. ----------- 02 26.10.2009 In the year 2004, the petitioner has been granted licence to run the Cinema Hall, as contemplated under the Bihar Cinema Hall Regulation Act and the Rules framed thereunder, by the Collector, Jehanabad. Petitioner states that since the time he has received the licence for exhibiting cinema in the said premises he has complied with the provisions of the Employees Provident Fund Miscellaneous Provisions Act and the schemes framed thereunder. He challenges the order of the Assistant Provident Fund Commissioner by which he has been visited with a pecuniary assessment for the period 1988 up to date, for realization whereof certificate proceedings has also been initiated. Petitioner has stated that the premises earlier belonged to the late father of the petitioner. He could not run the Cinema Hall as such licence was cancelled in the year 1988. In 1996 the Cinema Hall was given on lease to one Pushpa Devi for a period of 15 years, which she surrendered in the year 2004 to the petitioner. Petitioner then applied for licence and started the business. He submits that for - 2 - the period during which no business could be carried because of either cancellation of licence or non-renewal thereof, cannot be taken into account, as in that period there were no employees. He further submits that when the proprietor of the entertainment was Pushpa Devi, the loan will be recovered from the said proprietor. In my view, both these are questions of facts, which have to be first determined by the authorities under the Act in a judicious manner. It must be kept in mind that assessing the duties of provident fund and other associated duties is not like assessing tax liability. The obligation is not de hors the employees. The money so realized for the benefit of the individual employees will, thus, have to be identified. It cannot be realized as a tax for the purposes of increasing coffer of the Provident Fund Commissioner. The Commissioner would, thus, be obliged to identify the employees and ensure their employment before making assessments as also verify whether there was licence or not for the period in question. Petitioner would cooperate in these enquiries. As the order of assessment is an ex parte order, the same is set aside. The consequence would be that the certificate proceedings in that regard would also be set aside. The Assistant Commissioner would now be obliged to reassess the duties and liabilities of the petitioner, keeping in mind the observations made above. Petitioner would cooperate in the matter to the best of his ability. It is expected that subject to petitioner’s cooperation the respondent-Assistant Commissioner would conclude the proceedings within 6 months from - 3 - today. Petitioner would file a copy of this order before the concerned Assistant Provident Fund Commissioner by 7th November, 2009 on which date the Assistant Provident Fund Commissioner would fix dates in the matter so that the petitioner is able to appear on the dates so fixed without fresh notices sent to him. In view of the aforesaid, the order impugned of the Assistant Provident Fund Commissioner and the consequential certificate proceedings are set aside. The writ petition is, accordingly, disposed of. Trivedi/ (Navaniti Prasad Singh, J.)