TMI Blog1959 (5) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. (2)The contribution payable by the employee under the scheme shall be equal to the contribution payable by the employer in respect of such employee." It is contended on behalf of the liquidator that the liquidator is not liable under the Act to make this contribution. The factory in this case is a cotton mill. It was being run by the company, Mahalaxmi Cotton Mills Ltd., which went into liquidation on January 10, 1955. Mr. P.K. Pal was appointed official liquidator. A special order was made on March 21, 1955, appointing Mr. Pal as the official liquidator and specially empowering him to carry on the business of the mill and the factory with express direction upon him to sell the same as a "going concern". Mr. Pal was also appointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " is defined by section 2( e ) of the Act to mean : "( i )...the owner or occupier of the factory, including the agent of such 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, 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, such manager, managing director or managing agent." The "occupier of a factory" is defined by section 2( k ) of the Act to mean: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he old Companies Act (or section 456(1) of the Companies Act, 1956) is given to the official liquidator and he is directed to take into his custody or control the property and effects and the actionable claims of the company. The word "control" is used in section 178(1) of the old Companies Act, (or section 456(1) of the Companies Act, 1956). I should, therefore, read the words "ultimate control" used in the definitions of "employer" and "occupier" in sections 2( e ) and 2( k ) of the Employees' Provident Funds Act, 1952, to include the liquidator who has the ultimate control for all practical purposes over the affairs of the factory and not the court as the legal custodian or supervisor of liquidation. No doubt the court exercises control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonality made responsible for the contribution, and should not be given a meaning which defeats the very basis of the operation or impact of the Act which remains a "factory engaged in any industry" specified. Once such a factory is found engaged in a specified industry the operation of the Act should not be lightly defeated by any narrow interpretation of the word "employer" used in the Act. In this case the official liquidator was especially asked and ordered to work this factory and to keep it "engaged" in the industry, so that it could be sold as a going concern. If it is not engaged, it cannot be sold as a "going concern". Therefore, normally it attracts the conditions of this Act. No doubt, ordinarily in liquidation, the official li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n II of the Employees' Provident Funds Act to show that priority of payment of contributions over other debts is accorded only where the liability accrued before the company was wound up. That is the priority of pre-liquidation contribution. It is, therefore, said that the statute makes no provision for post-liquidation contribution. Now section ii of the Employees' Provident Funds Act expressly refers to section 230 of the Companies Act. Section 230 of the Companies Act deals with preferential payments. It sets out the payments of certain amounts in priority to all other debts. In that list in sub-clause ( e ) is mentioned "all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund for the welfare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am, therefore, satisfied, both on the construction of the Employees' Provident Funds Act and its scheme as well as on the special order made in this case directing the liquidator to carry on the factory engaged in the industry and to sell it as a going concern, that the liquidator is liable as an "employer" and "occupier" within the meaning of that Act to make the contributions required by the statute and the scheme framed thereunder. I shall not be understood as holding that there where the liquidator is asked to wind up a factory and close it down, he would still be liable for contribution under this Act. In fact, I have already said that in such an event the liquidator will not be liable under the Act for contribution because it will n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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