Ramendra Singh Kushwah v. Counsel

1. Heard Sri Sarvesh Kumar Dubey, learned counsel for the petitioner, Sri Prabhakar Tripathi, learned counsel for the respondent no.1 and Sri Manas Bhargava, learned counsel for the respondent nos.2, 3 & 4.

2. The present petition has been filed challenging the notices dated

30.12.2025, 19.11.2025 and 09.10.2025, issued by respondent no.4, in exercise of powers under Section 8-B(1)(b) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952.

3. It is contended by the counsel for the petitioner that notices issued against the petitioner in personal capacity to deposit all outstanding amount of provident fund dues computed under Section 7-A of the Act, is without jurisdiction as the petitioner is not the employer in his personal capacity but is an officer of the U.P. Gramin Rojgar Guarantee Yojana Samiti (MGNREGA), against which, determination under Section 7-A has been done. It is further contended that pursuant to the order dated

28.12.2023, passed under Section 7-A(1)(b) of the Act an outstanding of Rs.3,41,50,656/- was determined, pursuant to which, a sum of Rs.3,11,62,356/- was deposited by the respective Block Development Officers. He further contends that under MGNREGA scheme the District Programme Coordinator and the Programme Officer are responsible for implementation of the scheme in the district and the liability to pay dues under the provisions of the Act are upon the District Programme Coordinator, therefore, the notices issued to the petitioner in personal capacity is also misconceived. In support of his contention, learned 2 WRIC No. 2969 of 2026 counsel for the petitioner has relied upon a judgment of Madurai Bench of Madras High Court in the case of R. Balachandran vs. Regional Provident Fund Commissioner, passed in Writ Petition No.11546 of 2010 decided on 07.09.2011. The relevant observations of the Court in paragraph nos.8 & 12 are relied upon and are reproduced as under:- "8. Perusal of the said section clearly discloses that the dues of the employer's contribution towards provident fund are recovered from the owner. In the present case, the establishment is a public limited company. The short question which is to be taken into consideration is whether the dues can be recovered either from the owner or from the occupier as defined under Section 2(e) of the said Act. This question has been considered by the Apex Court in the case of Employees' State Insurance Corporation vs. S.K. Aggarwal & Ors, reported in 1998 II CLR 518. The Apex Court has held that the words "owner" or "occupier" which is found in Section 2(e) of the said Act have been used disjunctively and therefore, in a case where the owner is public limited company, in that case while construing the definition of "owner", it would not be necessary to refer to the word "occupier". The Apex Court in the said judgment in para 7 has observed as under:- "7. Under S.40 the words "owner" and "occupier" have been used disjunctively. The Court also referred to S.100 of the Factories Act and said that even under the Factories Act, 1948, the Legislature has clearly contemplated that in the case of a factory, a company can be the "occupier". Therefore, when the owner of a factory is a company it is the company which is the principal employer and not its director." The Bombay High Court overruled the judgment of the Single Judge of the Bombay High Court in so deciding." In para 10, therefore, the Apex Court has observed as under:- "10. Therefore, even if we read the definition of "principal employer" under the Employees' State Insurance Act, 1948 in Explanation 2 to S.405 of the Indian Penal Code, the directors of the company, in the present case, would not be covered by the definition of "principal employer" 3 WRIC No. 2969 of 2026 when the company itself owns the factory and is also the employer of its employees at the head office".

12. It can be seen that in Section 14A, it has been expressly provided that if the person committed the offence under the Act is a company, every person, who at the time of the offence was committed was incharge of, and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence. It can be seen that these words are not found in Section 8 of the Provident Funds Act and that the said section says that monies could be recovered from the employer. Therefore, in this context, the Apex Court in the case of Employees' State Insurance Corporation vs. S.K. Aggarwal & Ors. (Supra) had observed that the said words have to be construed disjunctively. The ratio of the judgment of the Apex Court on which reliance is placed by Mr.Karnik, learned Counsel for respondent no.1, therefore, will not be of any assistance to the respondent no.1. Similarly, in the case of Garware Marine Industries & others (supra) wherein the learned Single Judge of this Court has observed that the person so named as the employer under the meaning of Section 2(e) of the EPF and MP Act, alone can be prosecuted under provisions of Section 8B(b) of the Act. However, the judgment in the case of Employees' State Insurance Corporation vs. S.K. Aggarwal & Ors. (supra) and the judgment of the two learned Single Judge of this Court were not cited before the learned Single Judge. The said observation, therefore, also cannot be of any assistance to respondent no.1. In view of these, the impugned notice-cum- Order dated 6th January, 2003 issued under Section 8F of the said Act is quashed and set aside. Respondent no.1 is directed to refund the said amount to the petitioner which is recovered from the petitioner's bank in pursuance of its notice dated 6th January, 2003."

4. Learned counsel for the respondent nos.2, 3 and 4, on the other hand, contends that the order dated 28.12.2023, passed under Section 7-A of the Act is appealable, therefore, the writ petition is not maintainable and as the determination of outstanding provident fund dues have been made against the U.P. Gramin Rojgar Guarantee Yojana Samiti, the petitioner being an officer is liable for payment of the entire outstanding amount. 4 WRIC No. 2969 of 2026

5. I have heard learned counsels for the parties and perused the record.

6. The objection of the respondent nos.2 to 4 is misconceived in view of the fact that the determination under Section 7-A of the Act is not under challenge in the present petition. The liability is admitted. In the representation dated 29.11.2025, filed by the petitioner before the respondent no.2, he has categorically stated that the amount is being paid and for rest of the amount money would be transferred as soon as it is received from the Central Government. The said representation of the petitioner has not been considered while issuing third notice dated

30.12.2025 and the petitioner is being held personally liable for the outstanding amount.

7. Matter requires consideration.

8. All the respondents are granted four weeks' time to file counter affidavit. Rejoinder affidavit may also be filed within two weeks, thereafter.

9. List thereafter.

10. In the meantime, no coercive action shall be taken against the petitioner in pursuance of the notices dated 30.12.2025, 19.11.2025 and

09.10.2025, issued by respondent no.4 . February 5, 2026 Ashok Kr. (Arun Kumar,J.)