TaxTMI 
TaxTMI 
2010 (4) TMI 615
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....d to do under sections 6 and 6A read with paragraphs 30 and 33 of the Employees' Provident Funds and Family Pension Funds Scheme. The default was of the periods July, 1995 to September, 1995 and to the tune of Rs. 91,922. The complaint alleges that all the eight accused in the case were in charge of the said establishment and responsible for the conduct of its business. As such, the petitioners are required to comply with all the provisions of the said Act and the Scheme in conducting the said establishment. 2. Heard learned counsel on either side and also perused the materials available on record. 3. Mr. P. Sukumar, learned counsel for the petitioners submitted that owing to circumstances beyond control, sums payable to the EPF authorities from several establishments under the same management had fallen due and that sizeable sums including sums involved in the present case stood paid. A request was made to the authorities to drop the action. The authorities had failed to withdraw the complaint. Learned counsel informed that the tea industry had undergone a turbulent phase and owing to measures initiated by the Government of India, the same was under revival and in due course, al....
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....mployer to the provident fund account. Section 14AA provides for enhanced punishment for subsequent offences after previous conviction. 6. The contention is that when under Form No. 5(A), the Employment Provident Funds Scheme, 1952, it specifically had been informed that the eighth accused is the person responsible for the conduct of the establishment, then these petitioners, who are the managing director and directors of the company could not be arrayed as accused for commission of offences by virtue of section 14A. Learned counsel placed strong reliance on the judgment of the Division Bench of the Bombay High Court reported in [1984] Mah. LJ 117 (Suresh Tulsidas Kilachand v. Collector of Bombay), wherein it is observed as follows : "13. We have referred earlier to the obligation of the principal employer to pay the employer's and the employee's contributions and his right to deduct the employees contribution from the wages payable to the employee. Though on the well-known principles of construction of statutes singular includes plural, it is difficult for us to appreciate how there can be two principal employers in respect of the same employee. It is not contemplated by any of ....
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....red to in the definition of 'occupier' cannot only be a natural person as argued by Mr. Tulzapurkar, but the person contemplated by the definition will include a body of individuals or a firm consisting of partners or an incorporated company. The definition of 'occupier' in the Act expressly refers to 'the meaning assigned to it in the Factories Act, 1948'. Therefore, the word 'occupier' for the purposes of the Act must have the same meaning as assigned to it in the Factories Act. It would be perfectly permissible to read section 2(n) and section 100 of the Factories Act to understand the concept of 'occupier' and the sense in which the Legislature has used that term when 'occupier' as included in the definition of 'principal employer'. The provisions of section 100 of the Factories Act leave no room for doubt and make it clear that the Legislature has clearly contemplated that in the case of a factory a company can be the 'occupier' and can be the person who has the ultimate control over the affairs of the factory. Not only that, the Legislature has clearly contemplated that a firm consisting of partners can be an occupier and that the firm could have ultimate control over the aff....
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....kar has referred us to a passage, from Pennington's Company Law, fourth edition, at page 523, which in our view, says nothing different from the passage we have quoted above. The passage relied upon by Mr. Tulzapurkar is at page 523, which reads as follows : 'The board of directors and meetings of members of a company can between them exercise all of the company's powers. Subject to the provisions of the Indian Companies Act, 1948, which require certain powers to be exercised by the members in general meetings, the division of powers between the board and the members is determined entirely by the articles of association, but the distribution can, of course, be varied from time to time by an alternation of the articles.' The above passage does not refer to the powers of any individual director, but it refers to the division of powers between the members of the company and the "board of directors" as such, and indeed, in the same Chapter, the learned author has further pointed out at page 525 as follows : 'Directors can only exercise their powers collectively by passing resolutions at board meetings, unless the articles otherwise provide.' The proposition that each individual dir....
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....ers could be made liable would not hold water for the following reasons : Clause 8 of such form calls for the particulars of the owners/directors. Clause 10 calls for the particulars of the manager/occupier and clause 11 calls for the particulars of the persons mentioned above who are in charge of and responsible for the conduct of the establishment. 10. Now, we find that the reference to the "persons mentioned above" in clause 11 would be to the person's, who is are found mentioned in clauses 1 to 10 of such form. Clause 11 requires that out of the said persons, the person in charge of and responsible for the conduct of the establishment is to be specifically informed. In the instant case, it is the eighth accused, who is specifically named in clause 11 as the person responsible for the conduct of the establishment. The decision of the apex court relied upon by counsel for the respondent really does not support his contention. In such case, the names of the directors of the company stood mentioned in column 8 of Form No. 5A. In column 11 of such form, it was stated "as per the details mentioned in Item 8". Thus, Form No. 5A in the said case had informed that the persons namely t....