TMI Blog2001 (7) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... n inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956, or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof shall lie or be proceeded with further except with the consent of the Board or, as the case may be, the appellate authority. The petitioner is also bound to get direction under section 32 of the said SICA. 3. It further contended that since the Employees Provident Fund Act does not contain any non obstante clause and the SICA and the said Act are both special statutes and since the SICA came into force later than the Provident Fund Act, in that case, it has been contended that the said Act must preva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a decision in Tata Davy Ltd. v. State of Orissa [1998] 93 Comp. Cas. 1 , the Supreme Court has held that arrears of sales tax cannot be recovered from a sick industry by coercive process. In the case of Reliance Ispat Industries Ltd. v. CST [1993] 77 Comp. Cas. 381 (MP) it has been held that even a notice containing a threat amounts to a coercive action. 7. He further contended that with reference to the non obstante clause contained in section 22(1) and the non obstante provisions of section 32, it has been held that in Union of India v. Krishna Mills Ltd. [1994] 81 Comp. Cas. 50 (Raj.) that the effect of the same is that whatever may be the other law or its effect, no proceeding against the property of a sick company would lie or be proceeded with. In the said case, it was held that the Sick Industrial Companies (Special Provisions) Act, 1985, being a special statute in relation to sick industrial companies and a later statute, it will prevail over the general provisions of the Companies Act, 1956, and the non obstante clause in sections 22 and 32 will prevail as against the non obstante clause in section 529A of the Companies Act. 8. He also submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, he submitted that this application should be dismissed. 13. He further contended that the Bombay High Court in Palliwolf Ltd. v. Regional Provident Fund Commissioner [2000] 1 LLJ 1425 (Bom.), held that section 22(1) of the SICA is of no assistance to the petitioner having regard to the nature of payments required to be made by way of provident fund and other contributions under the said Act. 14. It is further contended that the appeal was preferred from the said judgment and the Supreme Court was pleased to reject the said special leave petition. Accordingly, he submitted that the said judgment has been upheld by the Supreme Court and thereby the view taken by the Bombay High Court has been approved by the Supreme Court on the said point. 15. He further submitted that the judgment delivered by the Division Bench of this High Court in Kusum Engg. Co. Ltd. s case ( supra ), the Division Bench held that it is a statutory liability and the Provident Fund Act is a piece of social welfare legislation enacted for the purpose of welfare of the labourers. If the industry is to run the labour welfare legislation has to be given effect to and that construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, but no documents have been produced before this court to the extent. In my opinion, those facts ought to have been brought before this Court and the subsequent orders it passed in the matter should have been brought on record which in my opinion purposefully has been suppressed by the petitioner, from this Court. It further appears that there is a provision under the said Act challenging the demand notice issued by the petitioner before the said authorities. The petitioner did not take any step in the said matter nor file any appeal. The statute has given power to the petitioner to challenge the same under section 7-I of the said Act. The petitioner purposefully did not avail of the said chance and has come before this court. Accordingly, in my opinion the writ court should not interfere in the matter when a specific right has been given to the petitioners under the said statute. It is further to be noted here that the petitioner has specifically submitted that it has paid the employees share but suppressed the fact that the amount to be paid to the Provident Fund Commissioner, being the employers share in respect of such provident fund. 19. I further cannot accept the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, unreasonable and against the spirit of the statute in a business sense, should be avoided. 22. After considering the judgments cited before me I do not have any hesitation to hold that the company has no right to take shelter under section 22 in respect of statutory liabilities and the employees are entitled to have their statutory benefits under the Employees Provident Funds Act and thereby any default on the part of the employer under the said Act cannot attract the said section or can get away taking an advantage out of the said section and accordingly, in my opinion the purpose and object of section 22 cannot be interpreted in a manner to give a shelter to the petitioners against the orders passed by the respondent authorities. 23. Accordingly, I am of the view that section 22(1) of the SICA Act, 1985, would not be of any assistance to the petitioner in the facts and circumstances of this case having regard to the nature of the payments required by way of provident fund and other contributions under the said Act and I do not find any substance in this application and the same is rejected. However, there will be no order as to costs. - - TaxTMI - TMITax - Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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