V. Bhargava, J.
1. Special Appeal No. 238 of 1958 filed by Seth Loon Karan Sethiya and another is directed against a judgment of a learned Single Judge of this Court partly allowing and partly dismissing a petition filed by the appellants under Article 226 of the Constitution. Connected with it is the Special Appeal No. 116 of 1958 filed by the Regional Provident fund commissioner and another against the same judgment passed by the learned Single Judge in the same writ petition. The learned Single Judge, By his Judgment, had allowed the writ petition of Loon Karan Sethiya and another to the extent of granting the prayer of issuing a writ of certiorari to quash the certificate of recovery dated 8th May, 1957, purporting to have been issued under Section 8 of the Employees' Provident Funds Act, 1952 hereinafter referred to as the Act) and, further, to quash the proceeding taken in pursuance of that certificate for attachment of the properties of Loon Karan Kethiya. It is against this part of the order that Special Appeal No. 116 of 1958 has been filed by the Regional Provident fund Commissioner and the Regional Provident fund inspector. The rest of the prayers in the writ petition were rejected by the learned Single Judge and the other special appeal No. 238 of 1958 is directed against that order of rejection of the petition.
2. The petitioner, Loon Karan Sethiya, according to the facts admitted by parties, took a sub lease of Mill No. 3 of the John Mills, Agra, with effect from 1st January, 1056. The mill was carrying on the industry of spinning yarn. The Keglonal Provident Fund Commissioner required Loon Karan Sethiya to submit the various state ments in accordance with the Act and the Scheme framed thereunder. The statements and returns not having been submitted, criminal prosecutions were started against Loon Karan Sethiya. Further, it was held that there was a liability on Loon Karan Sethiya on account of provident fund contributions and administrative charges to the extent of Rs. 52.389.25 nP. for the period from January, 1856 to November, 1956, and damages under Section 14-B of the Act. Consequently, a certificate dated 8th May, 1957, was Issued for recovery of this amount as arrears of land revenue. Thereupon this writ petition was filed. The learned Single Judge held that the provisions of the Act were applicable to the mill which was being run by Loon Karan Sethiya and, consequently, a liability had arisen to submit the necessary returns and statements and to make contributions to the provident fund under the Act for the period from January, 1956 to November, 1956. The submission made on behalf of Loon Karan Sethiya that the provisions of the Act were not applicable because of the provisions of Section 16(1) of the Act was repelled by the learned Single Judge. The learned Single Judge, however, proceeded further to hold that, even though the provisions of me Act were applicable, the issue of the recovery certificate and the proceedings' taken thereunder were invalid inasmuch as the provisions of Section 8 of the Act had not become applicable for want of determination of the amount due from Loon Karan Sethlya, so that this certificate was liable to be quashed together with all proceedings which were being taken in pursuance of that certificate. It was on these findings that the learned Single Judge decided the writ petition in the manner indicated above.
3. In the appeal filed by Loon Karan Sethiya and another, the only point that has been urged before us by learned counsel is that the learned Single Judge was wrong in holding that the provisions of the Act were applicable to the mill which was being run by them because it should be held that the factory, which these petitioners were running, had been established in January, 1956, and, under Section 16(1) of the Act, the Act could not apply to this factory for a period of three years from the date of establishment of the factory. We have gone through the counter-affidavit and we find that the facts admitted therein do not indicate that the factory in question was established in January, 1956. It is specifically stated in paragraph 15(b) of the counter-affidavit that tills factory had been established for a long time prior to its management being taken over by the petitioners. In paragraph 15(c), it was said that, prior to the petitioners taking over the management of this mill which was being run by Shri Munni Lal Mehra who had been appointed the authorised controller of the mills by the U. P. Government, the employees of the mill were entitled to benefit of the Employees' provident Funds Act and the scheme under the aforesaid Act applied to them.
The employers of the mill and the management were both malting their respective contributions to the Employees' Provident Fund as required by the Act and the Scheme made thereunder. On behalf of the petitioners it was urged that the mill bad been closed for some time prior to its being taken over by the petitioners and, consequently, when the petitioners took over the mill, and the mill started running, it should Be held that the factory came to be established on that date. On this point, again, in the counter-affidavit, it is urged that, though it may be correct that the mill had been closed for some time prior to its being taken over by the petitioners, it is not admitted that the factory had ceased to be a factory at the time when the management was taken over by the petitioners. It is thus clear from the counter-affidavit that the question whether the factory had been established in January, 1956, when the petitioners took it over as sub-lessees, was a disputed question of fact.
It was the admitted case of the parties that a factory carrying on this industry of spinning yarn had been established long before and had been carrying on the activity of spinning yarn. On behalf of the petitioners it was urged that the factory had been closed for some time but the exact period of closure was not disclosed in the affidavit. On behalf of the opposite-parties closure for some time prior to the mill being taken over by the petitioners was admitted but, again, the period of closure was not specified. The mere closure of the mill for a short period could not be held to have caused the Industry of spinning yarn, which was being carried on earlier, to cease, nor could it be held that a new factory was established when the petitioners took it over in January, 1956. A temporary closure of any factory cannot mean that, when the factory starts working after that temporary closure, a new factory is established. In the present case, it was not even known for what period the factory which was taken over by the petitioners, had remained closed, nor has the reason for that closure been established.
In any case, there is no material on the record to show that the factory, which had been running in the past, had ceased to exist as a factory any time prior to its being taken over by the petitioner's and, If it had never ceased to exist, it is not possible to hold that a factory was established by the petitioners in January, 1956, when they took over the factory on a sub-lease and started running it as an Industry. Consequently, in view of Sub-section (3) of Section 1 of the Act, the Act was applicable to this factory and the provisions of Section 16(1), which would have made the Act inapplicable for three years from the date of the establishment of the factory, were not attracted when the petitioners took over the management as sub-lessees. The learned Single Judge was, therefore, right in holding that the Act, as it was in force during the period from January, 1956 to November, 1956, was applicable to the factory which was being run by the petitioners.
Learned counsel, appearing for the petitioners In the appeal filed on their behalf, has not been able to urge that, on this view, the petitioners can seek any further relief in this appeal beyond the relief that has already been granted by the learned Single Judge because once it is held that the Act was applicable to the factory, no order could be made by this Court in exercise of its writ jurisdiction either quashing the pending prosecutions or restraining, any other action being taken under the Act in respect of this factory.
4. So far as the counter-appeal filed on behalf of the Regional Provident Fund Commissioner and the Regional Provident Fund Inspector is concerned, the only point, that has been urged by learned counsel appearing on their behalf before us, is that the learned Single Judge was not right in quashing the certificate of recovery and the proceedings being taken in pursuance of it because, under the Act and the Scheme framed thereunder, there was a inability on the petitioners to pay the contributions on their own behalf as well as on behalf of the employees and, they having failed to do so, it was competent to issue recovery proceedings under Section 8 of the Act to enforce that liability. The view taken by the learned Single Judge is that, though the Act and the Scheme created a liability on the employer in respect of the contributions, no machinery was provided for determining the amount due in respect of the contributions and, until there was such determination, it could not be held that any amount had become due with the result that the provisions of Section 8 of the Act were not attracted. We see no reason to differ from the view taken by the learned Single Judge.
In Section 6 of the Act, all that is laid down is the liability of the employer and the employees in respect of contributions to the fund. That section itself lays down that the contribution, which shall be paid by the employer to the fund, shall be paid at the rate specified in that section, it is, however, significant that, in Section 8, the legislature did not choose to lay down that recovery proceedings may be taken for ''contributions payable to the fund' by the employer. The language used is that 'the recovery can be made of any amount due from the employer.... in respect of any contribution payable to the fund.' Consequently, proceedings under Section 8 can only be taken when It is known as to what is the amount due in respect of any contribution payable to the fund. It is not enough to know that contribution at a particular rate is payable to the fund. Consequently, unless the amount due in respect of contributions payable to the fund is determined, no proceedings can be taken under Section 8 of the Act and the learned Single Judge was right in holding that the recovery certificate in question in this case was invalid as having been issued without the determination of such amount due.
Learned counsel, appearing on behalf of the Regional Provident Fund Commissioner, drew our attention to paragraphs 29, 31, 32, 34, 36, 37 and 38 of the Scheme prepared under the Act to show that the liability was on the employer himself to pay the contributions to the fund, whether those contributions be on his own behalf or on behalf of the employees but none of those provisions of the scheme lays down, how the amount due in respect of those contributions is to be determined and by whom. Though the Act and the Scheme cast upon the petitioner the liability to pay the contributions, there was no provision in the Act, as it stood at relevant time, for the ascertainment and determination of the amount due by any authority. That being so, it could not be said that the amount due had been ascertained and recourse to the procedure laid ciown in Section 8 of the Act could not be had, so that the judgment of the learned Single Judge allowing the petition to the extent of quashing the recovery certificate and the proceedings being taken thereunder was correct.
5. The result is that both the appeals fall and are dismissed. Parties will bear their own costs of both the appeals.