Balimara Tea Co Pvt Ltd (Unit Balimara Tea Estate) V. The State of Assam and Assam Tea Employees Provident Fund Organization and The Additional PF Commissioner DLI Section and The Assistant PF Commissioner Dibrugarh Zonal Office and The Recovery Officer ATEPF Organization Dibrugarh Zonal Office and M/S Umatara Tea Company and Smt. Sarita Devi Sahewala and Siddharth Sahewala and Smt. Sachi Goel

WP(C)/1960/2022

AI Insights

The case revolves around the auction sale of Balimara Tea Estate due to unpaid provident fund contributions by the petitioner, Balimara Tea Co Pvt Ltd. The ATEPFO issued a recovery certificate for Rs. 1,97,47,669.10 towards provident fund dues, which was recovered through an auction sale of the estate for Rs. 5,97,00,000. However, the petitioner contested the appropriation of the surplus amount by ATEPFO for settling other statutory dues like gratuity and bonus, arguing that the organization had no legal authority to do so. The court agreed with the petitioner, emphasizing that the recovery should be confined to the amounts specified in the recovery certificate.

• Counselvise Citation: [] 140 COUNSELVISE.COM (IT) 833099 (HC-GAUHATI)
• Appeal Type: Others
• Pronouncement Date: 29-01-2026
• Assessment Year: misc
• Laws Referred To: Assam Tea Plantation Provident Fund & Pension Fund & DLI Scheme Act, 1955 as amended in 2016
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: N C DAS
• Assessee Lawyers: D DAS
• Keywords: Auction Sale; Provident fund; Recovery Certificate; Statutory dues; Surplus Amount
• Section: 15; 15B; 15C; 15G; 15E; 15D; 15F

Judgement Text

"Page No.# 1/22 GAHC010054192022 2026:GAU-AS:1026 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1960/2022 BALIMARA TEA CO PVT LTD (UNIT BALIMARA TEA ESTATE) HAVING ITS REGISTERED OFFICE AT BALIMARA TEA GARDEN, P.O. NAHARKATIA, DIBRUGARH, ASSAM-700001, REP. BY ITS AUTHORIZED REPRESENTATIVE MR. SURESH KUMAR SHARMA, AGE 69 YEARS, S/O LATE JAGDISH PRASAD SHARMA VERSUS THE STATE OF ASSAM AND 8 ORS THROUGH THE COMMISSIONER AND SECRETARY, GOVT. OF ASSAM, FINANCE DEPARTMENT, DISPUR, GUWAHATI-781006. 2:ASSAM TEA EMPLOYEES PROVIDENT FUND ORGANIZATION HAVING ITS OFFICE AT NIDHI BHAWAN BASISTHA LALMATI NH-37 GUWAHATI-781029. 3:THE ADDITIONAL PF COMMISSIONER DLI SECTION HAVING OFFICE AT NIDHI BHAWAN BASISTHA LALMATI NH-37 GUWAHATI-781029. 4:THE ASSISTANT PF COMMISSIONER DIBRUGARH ZONAL OFFICE HAVING OFFICE AT MILAN NAGAR (WEST) CR BUILDING Printed from counselvise.com Page No.# 2/22 DIST. DIBRUGARH- 786003 5:THE RECOVERY OFFICER ATEPF ORGANIZATION DIBRUGARH ZONAL OFFICE HAVING OFFICE AT MILAN NAGAR (WEST) CR BUILDING DISTRICT- DIBRUGARH- 786003 6:M/S UMATARA TEA COMPANY A PARTNERSHIP FIRM DULY REGISTERED UNDER THE INDIAN PARTNERSHIP ACT 1932 HAVING ITS HEAD OFFICE AND PRINCIPAL PLACE OF BUSINESS AT BORDOLOI AVENUE JALAN NAGAR DIBRUGARH TOWN P.S AND DIST- DIBRUGARH ASSAM PIN- 786005 REP. BY ITS PARTNERS. 7:SMT. SARITA DEVI SAHEWALA W/O DR. NIRMAL KR. SAHEWALLA PARTNER OF M/S UMATARA TEA COMPANY R/O JYOTI NAGAR P.O P.S AND DIST- DIBRUGARH ASSAM PIN- 786005. 8:SIDDHARTH SAHEWALA S/O DR NIRMAL KR. SAHEWALA PARTNER OF M/S UMATARA TEA COMPANY R/O JYOTI NAGAR P.O P.S AND DIST- DIBRUGARH ASSAM PIN- 786005. 9:SMT. SACHI GOEL W/O DR SIDDHARTH SAHEWALLA PARTNER OF M/S UMATARA TEA COMPANY R/O JYOTI NAGAR P.O P.S AND DIST- DIBRUGARH Printed from counselvise.com Page No.# 3/22 ASSAM PIN-786005 Advocate for the Petitioner : MR. D DAS SR. ADV, MS S SHARMA,MR K TALUKDAR Advocate for the Respondent : SC, FINANCE, MS G DUGAR(R-6,7,8,9),MS T J SAHEWALLA(R- 6,7,8,9),MS. S. TODI(R-6,7,8,9),MR M SAHEWALLA(R-6,7,8,9),MR G N SAHEWALLA(R- 6,7,8,9),MS J DAS (R-6-9),MS. J BORO (R-6-9),MR S DEKA (R-6-9),SC, ATPPF :::BEFORE::: HON’BLE MR. JUSTICE KARDAK ETE Date on which judgment is reserved : 22.01.2026 Date of pronouncement of judgment : 29.01.2026 Whether the pronouncement is of the operative of the judgment? : No Whether the full judgment has been pronounced? : Yes JUDGMENT & ORDER (CAV) Heard Mr. D. Das, learned Senior Counsel assisted by Mr. K. Talukdar, learned counsel for the petitioner. Also heard Mr. N. C. Das, learned Senior Counsel assisted by Mr. A. Das, learned counsel for the respondent Nos. 2, 3, 4 & 5; Mr. M. Chetia, learned State Counsel for respondent No. 1 and Mr. H. K. Sarma, learned counsel for the respondent Nos. 6 to 9. 2. By filing this writ petition, the petitioner has challenged the public notice/paper publication by the Recovery Officer, Assam Tea Employees Provident Fund Organization (‘ATEPF’, in short), whereby a final notice is given Printed from counselvise.com Page No.# 4/22 to the creditors of Balimara Tea Estate and general public calling upon them to submit their financial claims and proof, pursuant to the public auction sale of Balimara Tea Estate vide Auction Notice dated 07.09.2021 and order of confirmation of sale dated 08.11.2021. The petitioner has prayed for refund of the surplus amount arising out of the auction sale and to restrain the Recovery Officer from making payments to the financial and other creditors who have lodged their purported claims pursuant to the impugned public notice. 3. The petitioner is a company incorporated under the Companies Act, 1956 and the owner of the Balimara Tea Estate, having its registered office at Balimara Tea Garden P.O. Naharkatia, Dibrugarh, Assam. The Balimara Tea Estate was purchased in the year 2017 and has a total area of 247 hectares, out of which 139 hectares are under plantation, while the remaining area is utilized for other infrastructural facilities and for the production of the green tea. 4. Briefly put, the case of the petitioner is that due to the failure on the part of the petitioner to deposit/pay the arrears towards provident fund contributions, the respondent ATEPF organisation issued a letter dated 04.12.2018 calling upon the petitioner to deposit arrears amounting to Rs. 1,64,35,543.28/- (Rupees one crore sixty four lakhs thirty five thousand five hundred forty three and twenty eight paise) only, which included arrears of provident fund contribution, Provident Fund administrative costs, 15% statutory interest on delayed deposit within a period of 30 days. The petitioner initially accepted its total liability of provident fund amounting to Rs. 1,85,35,652.98/- (Rupees one crore eighty five lakhs thirty five thousand six hundred fifty two and ninety eight paise) only up to 13.12.2018 and informed that same shall be paid on installments. However, due to financial difficulties, the petitioner failed Printed from counselvise.com Page No.# 5/22 to honour the proposed payment on instalments, resulting in dishonour of the post-dated cheques issued by it. Thereafter, vide demand notice dated 15.07.2019, the petitioner was directed to pay the arrears of provident fund along with other statutory charges amounting to Rs. 1,74,30,877.47/- (Rupees one crore seventy four lakhs thirty thousand eight hundred seventy seven and forty seven paise) only, to which the petitioner remains defaulted. 5. On 01.10.2019, the Authorized Officer, Board of Trustees of ATEPF Organization issued a recovery certificate under Section 15 of the Assam Tea Plantation Provident Fund & Pension Fund & DLI Scheme Act, as amended in 2016, (‘Assam Tea Plantation Scheme Act, 2016’ in short) to the Recovery Officer certifying that a sum of Rs. 1,97,47,669.10/- (Rupees one crore ninety seven lakhs forty seven thousand six hundred sixty nine and ten paise) only (balance) is due from petitioner towards the arrears of Provident Fund contribution, Provident Fund administration cost, 15% statutory interest on delayed deposit of Provident Fund Contribution and requested to recover the aforesaid amount under the provisions of the said Act. 6. Pursuant thereto, the Recovery Officer issued a demand notice dated 15.10.2019 directing the petitioner to pay the aforesaid amount of Rs. 1,97,47,669.10/-. In addition, the petitioner was also directed to pay such interest as may be payable in terms of Section 11(A) of the said Act for the period of default of the arrear dues till the date of actual deposit, along with all costs, charges and expenses incurred in respect of the service of notice, issuance of warrants and other processes undertaken for realizing the arrears, failing which steps would be taken to realize the amount in accordance with provisions of Section 15B to Section 15G of the Assam Tea Plantation Scheme Act, 2016. Printed from counselvise.com Page No.# 6/22 7. It is the contention of the petitioner that on coming to know about the issuance of recovery certificate, it made certain payments and by a letter dated 01.09.2020, furnished detailed clarifications while requesting the respondents to accept the amounts so paid and adjust the same against the outstanding arrears. Pursuant to the recovery certificate and the demand notice, the Recovery Officer, ATEPF, took zimma of the petitioner’s tea garden on 28.11.2019 and the said tea garden was accordingly attached. 8. Thereafter, an Auction Sale Notice dated 07.09.2021 was issued and the auction was conducted pursuant thereto. In the said auction, Umatara Tea Estate (Tea Company) and one other bidder participated and the bid submitted by Umatara Tea Estate was ultimately accepted, whereupon an order confirming the sale was issued on 08.11.2021. It is the case of the petitioner that no notice of the auction proceedings or particulars thereof were furnished to the petitioner, nor was any information provided regarding confirmation of the sale. The petitioner was not informed about the bid amount offered by the participants in the auction. Thereafter, possession of the petitioner’s tea garden was taken pursuant to the auction sale and the order confirming the sale. 9. Upon the auction sale, the petitioner submitted a letter dated 18.12.2021 to the ATEPF Organization seeking information regarding the number of bidders who participated in the auction, the sale consideration amount and the terms of the same as well as the surplus amount available after adjustment of the provident fund dues. However, no response was received by the petitioner. Thereafter, the Recovery Officer, by issuing the impugned public notice/paper publication, called upon the creditors of the petitioner and the general public to submit their respective financial claims. Printed from counselvise.com Page No.# 7/22 10. It is submitted at the bar that during the pendency of the writ petition, the impugned public notice/paper publication by the Recovery Officer, ATEPF Organization has been withdrawn. In view of above, no consideration is required to made so far as the challenge to the said impugned public notice/paper publication is concerned as the same has become redundant. Now, the grievance of the petitioner is confined to refund of the surplus amount from the proceeds of auction sale after payment of dues in terms of recovery certificate dated 01.10.2019. Thus, the issue arises for determination is as to whether the respondent/ATEPF Organization has any sanction or authority under the law to adjust on its own the other dues including statutory dues like gratuity, bonus etc., when the respondent organization is empowered only to take action of recovery against the provident fund, pension fund and deposit-linked insurance dues only and as to whether the petitioner is entitled to any refund of amount from the proceeds of auction sale. 11. Mr. D. Das, learned Senior counsel for the petitioner, submits that the recovery proceedings were initiated by Respondent No. 5 strictly on the basis of the recovery certificate dated 01.10.2019 issued under Section 15 of the Assam Tea Plantation Scheme Act, 2016 which clearly specifies that an amount of Rs. 1,97,47,669.10/- is recoverable towards provident fund arrears along with related charges and penalties. Respondent No. 5 is bound by the scope of the said recovery certificate and cannot act contrary thereto or beyond its express terms. Under the provisions of the Act, the Recovery Officer is empowered only to recover arrears relating to provident fund and allied statutory charges strictly in accordance with the recovery certificate issued under Section 15. By alleged payment of dues unrelated to the recovery certificate, Respondent No. 5 has acted beyond the scope of the Act and the authority vested therein. Printed from counselvise.com Page No.# 8/22 12. He submits that respondent No. 5 has either misconstrued the scope of Section 15 of the Act or has acted arbitrarily and for extraneous considerations. Section 15B(1) mandates issuance of a recovery certificate specifying the exact amount of arrears recoverable. Sections 15B(1)(a) to 15B(1)(c) merely prescribes the mode of recovery, including attachment and sale of movable and immovable properties. A plain reading of Section 15B makes it clear that the Recovery Officer is empowered only to recover the amount specified in the recovery certificate and no more. Consequently, after sale of the petitioner’s tea garden and recovery of the certified dues, non refund of surplus amount from the consideration of auction sale is wholly illegal and without jurisdiction. 13. He submits that sections 15B to 15G of the Act comprehensively govern recovery of provident fund arrears. While Section 15B provides for issuance of the recovery certificate, Sections 15C and 15D deal with its transmission, validity, and amendment. Section 15E concerns stay or withdrawal of recovery proceedings, and Section 15F provides additional modes of recovery. None of these provisions authorise the Recovery Officer and ATEPF Organisation to utilise any surplus amount towards settlement of such claims. Section 15G merely incorporates certain provisions of the Income Tax Act, 1961 for recovery purposes. Therefore, he submits that even under the statutory scheme, Respondent No. 5 lacks authority to pay dues unrelated to provident fund and other statutory dues. 14. Learned Senior Counsel submits that the entire recovery process is vitiated by arbitrariness and lacks transparency. The petitioner was not issued any notice regarding the auction proceedings or furnished with particulars of the sale in favour of Umatara Tea Estate/Tea Company. The petitioner has reliably learnt that Umatara Tea Estate/Tea Company was the sole effective participant and Printed from counselvise.com Page No.# 9/22 that the sale was confirmed in its favour on 08.11.2021. No disclosure has been made regarding the sale consideration or the surplus amount, despite the petitioner’s written request dated 18.12.2021. It is further contended that although the sale was confirmed on 08.11.2021, physical possession was handed over on 25.10.2021, prior to confirmation, rendering the process legally questionable. 15. He submits that the recovery proceedings appear to be motivated, as Respondent No. 5 is attempting to utilise the surplus amount after adjustment of provident fund dues to discharge liabilities of financial creditors, thereby handing over a liability-free tea estate to the auction purchaser. An auction sale conducted pursuant to statutory recovery proceedings is necessarily on an “as is where is” basis, and the Recovery Officer has no authority to cleanse the property of all liabilities by appropriating surplus sale proceeds. The actions of Respondent No. 5 are wholly without authority of law and devoid of statutory backing. 16. Mr. D. Das, learned Senior Counsel submits that there is no dispute that the petitioner’s tea garden was sold by way of auction in exercise of powers under the Assam Tea Plantation Scheme Act, 2016, following the procedure prescribed therein for recovery of provident fund dues. It is on record that a certificate was issued on 01.10.2019 for an amount of Rs. 1,97,47,669.10/- (Rupees one crore ninety seven lakhs forty seven thousand six hundred sixty nine and ten paise) only towards the arrear of provident fund contribution, Provident Fund administrative costs, 15% statutory interest on delayed deposit of provident fund contribution etc. He submits that the said amount stood fully recovered through the auction sale of the petitioner’s tea garden, which was purchased by Umatara Tea Estate for a consideration of Rs. 5,97,00,000/- Printed from counselvise.com Page No.# 10/22 (Rupees five crore ninety-seven lakhs only). The certified provident fund dues being only Rs. 1,97,47,669.10/-, learned Senior Counsel submits that in terms of the provisions of the Assam Tea Plantation Scheme Act, 2016, the balance amount is required to be refunded to the petitioner and cannot be appropriated or distributed by the provident fund authorities. He submits that the Recovery Officer has no authority under the said Act as the power and jurisdiction of the respondent authorities is confined to provident fund, pension fund and deposit link insurance fund only. He submits that even assuming, without admitting, the gratuity liability as claimed by the respondents at Rs. 1,63,82,039/- (Rupees one crore sixty three lakhs eighty two thousand thirty nine only), the total recoverable amount would come to Rs. 3,61,29,708/- (Rupees three crore sixty one lakhs twenty nine thousand seven hundred eight only). Accordingly, out of the total auction consideration of Rs. 5,97,00,000/- (Rupees five crore ninety- seven lakhs only), a surplus amount of Rs. 2,35,70,292/- (Rupees two crore thirty-five lakhs seventy thousand two hundred ninety-two only) is liable to be refunded forthwith to the petitioner as surplus sale proceeds arising out of the auction held on 07.10.2021. Therefore, he submits that the respondent authorities may be directed to refund the surplus amount of Rs. 2,35,70,292/- (Rupees two crore thirty-five lakhs seventy thousand two hundred ninety-two only) to the petitioner forthwith. 17. Mr. N. C. Das, learned Senior Counsel for the respondents, while drawing the attention of this Court to the procedure adopted and the sequence of events leading to the auction sale of the petitioner’s tea garden for recovery of provident fund dues, submits that the recovery proceedings were initiated strictly in accordance with law for realization of arrears towards provident fund contribution, Provident Fund administrative costs and statutory interest at the Printed from counselvise.com Page No.# 11/22 rate of 15% on delayed deposit. He submits that this Court, by order dated 22.04.2025, had made specific queries as to (i) whether the provident fund authorities have any sanction or authority under law to adjust, on their own, other dues including statutory dues such as gratuity and bonus etc. out of the sale proceeds of the tea estate, when the respondent organisation is empowered only to recover provident fund, pension fund and deposit-linked insurance dues; and (ii) whether, beyond the amount mentioned in the recovery certificate, the Provident Fund authorities could recover any additional dues without issuance of a fresh notice, particularly when additional arrear PF contribution for the period from 10.09.2019 to 28.03.2020 amounting to Rs. 17,79,728.21/- was allegedly omitted from the recovery certificate. 18. With regard to the first query, the learned Senior Counsel submits that recovery proceedings under Section 15 of the Assam Tea Plantation Scheme Act, 2016 lay down the procedure for recovery of arrear provident fund and deposit- linked insurance dues. Before finalising the sale proclamation, a notice in Form C.P.-17, namely, “Notice for Settling a Sale Proclamation”, is required to be served upon the defaulter, calling upon it to disclose any encumbrances, charges, claims or liabilities attached to the estate. In the present case, such C.P.-17 notice was duly served upon the petitioner. However, the petitioner, despite being fully aware of its statutory and other liabilities, deliberately and willfully failed to disclose the encumbrances, charges, claims or liabilities attached to the tea estate under attachment. 19. With regard to the second query, the learned Senior Counsel submits that dues other than provident fund dues are not required to be incorporated in the recovery certificate or demand notice. This, according to the respondents, is the precise reason for issuance of the C.P.-17 notice dated 18.08.2021, so that all Printed from counselvise.com Page No.# 12/22 liabilities attached to the property of the defaulter can be taken into account before finalising the sale proclamation. It is reiterated that, in the present case, the petitioner failed to respond to the C.P.-17 notice, despite the same having been duly served. 20. He submits that apart from the certified amount of Rs. 1,97,47,669.10/-, there were additional statutory liabilities, particularly: (i) Rs. 3,05,93,526.51/- towards 15% statutory interest on delayed deposit of PF contribution; (ii) gratuity (past liabilities) amounting to Rs. 72,46,948.80/- for the year 2018-19; and (iii) Rs. 16,15,645.32/- towards monthly gratuity contribution payable for the period from 01.04.2019 to 21.10.2021. According to him, the total liability, inclusive of the recovery certificate amount, thus comes to Rs. 6,09,83,517.14/-, which exceeds the auction sale proceeds of Rs. 5,97,00,000/-. He submits that in addition thereto, other statutory dues such as bonus at the rate of 20% on wages paid during the period from 01.04.2021 to 22.10.2021, gratuity dues payable to retired workers and dues of sub-staff were also outstanding. 21. He submits that the PF authorities do not adjust any dues other than statutory dues recoverable from the defaulting tea estate. Other liabilities are adjusted only after receipt of claims from the respective claimants and only statutory dues are admitted after due verification from the competent authorities. According to the respondents, all dues adjusted in the present case, other than PF dues, pertain to statutory liabilities of the petitioner. 22. Mr. N. C. Das, learned Senior Counsel, submits that after effecting attachment of the movable and immovable properties of the petitioner by following due process of law, the Recovery Officer, ATEPFO, in exercise of the powers vested in him, issued an Auction Sale Notice dated 07.09.2021 inviting bids for sale of the Balimara Tea Estate. In response thereto, two parties Printed from counselvise.com Page No.# 13/22 participated in the public auction held on 07.10.2021 by offering their respective bids. The bid of Rs. 5,97,00,000/- (Rupees five crore ninety-seven lakhs only) offered by Umatara Tea Company being the highest, the Balimara Tea Estate was sold in its favour. Upon confirmation of sale and completion of all formalities, possession of the Balimara Tea Estate was formally handed over to the successful bidder, namely, Umatara Tea Company, on 23.10.2021 and since then, the said company has been managing and looking after the affairs of the tea estate. 23. It is further submitted that the Office of the Board of Trustees, ATEPFO, by letter dated 11.08.2022, prepared a detailed statement of accounts reflecting the outstanding liabilities of the previous management of the Balimara Tea Estate. From the said statement, it is evident that the total outstanding liabilities amounted to Rs. 8,31,87,498.21/- (Rupees eight crore thirty-one lakhs eighty- seven thousand four hundred ninety-eight and twenty-one paise only), which far exceeded the auction sale proceeds of Rs. 5,97,00,000/-. The Board of Trustees, ATEPFO, is accordingly contemplating recovery of the balance outstanding dues from the petitioner tea company by initiating further recovery proceedings in accordance with law. 24. Due consideration has been extended to the submissions advanced by the learned counsel for the parties and also perused the materials available on record. 25. The issue that arises for determination is whether the respondent/ATEPF Organization has any sanction or authority under the law to adjust on its own the other dues including statutory dues like gratuity, bonus etc., when the respondent organization is empowered only to take action of recovery against Printed from counselvise.com Page No.# 14/22 the provident fund, pension fund and deposit-linked insurance dues only. The petitioner’s grievance is that beyond recovery of certificate dues, the provident fund authorities have recovered all other alleged dues without being issued any fresh notice that inadvertently total amount was not incorporated in the recovery certificate as the respondents has already utilized for payment of all the dues from the total consideration out of the sale proceeds of the tea garden of the petitioner, particularly against the recovery of certificate dues, against the arrears of recovery dues, arrears of provident fund contribution, statutory interest and against the claim of gratuity of past liabilities, monthly gratuity contribution and the bonus due to workers and staff. 26. The law regulating the recovery of dues in respect of provident fund, pension fund and deposit-linked insurance fund is regulated by the Assam Tea Plantation Provident Fund & Pension Fund & DLI Scheme Act, 1955 as amended from time to time and finally amended in 2016. 27. Section 15 of the Assam Tea Plantation Scheme Amendment Act, 2016, is reproduced hereinbelow:- \"Recovery of money due from employer. 15. Any amount due from the employer in relation to a plantation to which any Scheme or the Insurance Scheme applies in respect of any contribution payable under this Act to the Fund or as the case may be to the Insurance Fund, damages recoverable under section 16, accumulations required to be transferred under section 14, statutory interest payable under section 11 (A) and sub-section 4(a) of section 3 or any charges payable by him under any other provision of his Act or of any provision of the Scheme or the Insurance Scheme, may, if the amount is in arrear, be recovered in the manner specified in sections 15B to 15G.\" Recovery of moneys by contractor and employers. 15A (1) The amount of employer's contribution as well as the employee's contribution in pursuance of any Scheme and the employer's contribution in Printed from counselvise.com Page No.# 15/22 pursuance of the Insurance Scheme and any charges for meeting the cost of administering the Fund paid or payable by an employer in respect of an employee employed by or through a contractor may be recovered by such employer from the contractor, either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor. (2) A contractor from whom the amounts mentioned in sub-section (1) may be recovered in respect of any employee employed by or through him, may recover from such employee the employee's contribution under any Scheme by deduction from the wages, if any payable to such employee. (3) Notwithstanding any contract to the contrary, no contractor shall be entitled to deduct the employer's contribution or the charges referred to in sub-section (1) from the wages, if any payable to an employee employed by or through him or otherwise to recover such contribution or charges from such employee. Issue of certificate to the Recovery Officer. 15B.(1) Where any amount is in arrear under section 15, the Authorised Officer may issue, to the Recovery Officer, a certificate under his signature specifying the amount of arrears and the Recovery Officer, on receipt of such certificate, shall proceed to recover the amount specified therein from the plantation or, as the case may be, the employer by one or more of the modes mentioned herein below:- (a) attachment and sale of the movable or immovable property of the plantation or, as the case may be, the employer; (b) arrest of the employer and his detention in prison; (c) appointing a receiver for the management of the movable or Immovable properties of the plantation or, as the case may be, the employer; Provided that the attachment and sale of any property under this section shall first be effected against the properties of the plantation and where such attachment and sale is insufficient for recovery of the whole of the amount of arrears specified in the certificate, the Recovery Officer may take such proceedings against the property of the employer for recovery of the whole or any part of such arrears. (2) The Authorised Officer shall issue a certificate under sub-section (1) notwithstanding that proceedings for recovery of the arrears by any other mode have been taken. Recovery officer to whom certificate to be forwarded. Printed from counselvise.com Page No.# 16/22 15C.(1) The Authorised Officer may forward the certificate referred to in section 15B to the Recovery Officer within whose Jurisdiction,- (a) the prime place of the plantation is situated; or (b) the employer resides or any movable or immovable property of the plantation or the employer is situated (2) Where a plantation or the employer has property within the jurisdiction of more than one Recovery Officers and the Recovery Officer to whom a certificate is sent by the Authorised Officer, - (a) is unable to recover the entire amount by the sale of the property movable or immovable, within his jurisdiction; or (b) is of the opinion that, for the purpose of expediting or securing the recovery of the whole or any part of the amount, it is necessary so to do, he may send the certificate or, where only a part of the amount is to be recovered, a copy of the certificate, certified in the prescribed manner and specifying the amount to be recovered, to the Recovery Officer within whose jurisdiction the plantation or the employer has any other property or the employer resides, and thereupon the Recovery Officer to whom the certificate is so sent shall also proceed to recover the amount due under this section as if the certificate or the copy thereof had been the certificate sent to him by the Authorised Officer under section 15B. Validity of certificate and amendment thereof. 15D (1) When the Authorised Officer issues a certificate to a Recovery Officer under section 15B, it shall not be open to the employer to dispute before the Recovery Officer the correctness of the amount or any other materials in the certificate and no objection to the certificate on any ground whatsoever shall be entertained by the Recovery Officer. (2) Notwithstanding the issue of a certificate to a Recovery Officer under section 15B the Authorised Officer shall have power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate as may appear to him to be necessary by sending an intimation to the Recovery Officer to that effect. (3) The Authorised Officer shall intimate to the Recovery Officer any orders withdrawing or cancelling a certificate or any correction made by him under sub-section (2) or any amendment made under sub-section (4) of section 15(E) and the Recovery Officer shall immediately proceed to act according to such order of the Authorised Officer.” Printed from counselvise.com Page No.# 17/22 28. Reading of the above provisions show that any amount due from the employer in relation to a plantation to which any Scheme or the Insurance Scheme applies in respect of any contribution payable to the Fund or to the Insurance Fund, damages recoverable under section 16, accumulations required to be transferred under section 14, statutory interest payable under section 11 (A) and sub-section 4(a) of section 3 or any charges payable by him under any other provision of the Act or of any provision of the Scheme or the Insurance Scheme, may, if the amount is in arrear, be recovered in the manner specified in sections 15B to 15G. Section 15B(1) mandates issuance of a recovery certificate specifying the exact amount of arrears recoverable. Sections 15B(1)(a) to 15B(1)(c) prescribes the mode of recovery, including attachment and sale of movable and immovable properties. Section 15B shows that the Recovery Officer is empowered to recover the amount specified in the recovery certificate. 29. Sections 15B to 15G of the Act governs recovery of provident fund arrears. While Section 15B provides for issuance of the recovery certificate, Sections 15C and 15D deal with its transmission, validity, and amendment. Section 15E concerns stay or withdrawal of recovery proceedings, and Section 15F provides additional modes of recovery. On consideration it appears that none of these provisions authorise the Recovery Officer and ATEPF Organisation to utilise any surplus amount towards settlement of such claims. Section 15G incorporates certain provisions of the Income Tax Act, 1961 for recovery purposes. Thus, under the statutory scheme, in my view, respondent authorities may lacks authority to pay dues unrelated to provident fund and other statutory dues. 30. Admittedly, the petitioner has failed to deposit the amount of employer’s contribution as well as the employees contribution in pursuance of the said scheme including the insurance scheme and other charges for meeting the cost Printed from counselvise.com Page No.# 18/22 of administering the fund paid or payable by an employer in respect of an employees by the petitioner despite demand notice. The respondent organization in accordance with the law has initiated the proceedings and accordingly, the tea garden of the petitioner was put on auction sale which was sold for a consideration of Rs. 5,97,00,000/- (Rupees five crore ninety seven lakhs) only. 31. Records revealed that the respondent organization appears to have adjusted the dues out of the sale proceeds of Rs. 5,97,00,000/- (Rupees five crore ninety seven lakhs) only on the following heads:- (i) Recovery Certificate Dues of Rs. 1,97,47,669.10/- (Rupees one crore ninety seven lakhs forty seven thousand six hundred sixty nine and ten paise) only (ii) Additional Arrear P.F. Contribution up to 2019, which was inadvertently not added to the aforesaid Recovery Certificate dues of Rs. 17,97,728.21/- (Rupees seventeen lakhs ninety seven thousand seven hundred twenty eight and twenty one thousand) only (iii) 15% statutory interest due to delay deposit of PF dues of Rs. 3,05,93,526.51/- (Rupees three crore five thousand ninety three thousand five hundred twenty six and fifty one paise) only (iv) Gratuity Past Liabilities @60% of the wages paid in 2018-19 of Rs. 72,46,948.00/- (Rupees seventy two lakhs forty six thousand nine hundred forty eight) only (v) Monthly Gratuity Contribution payable from 01.04.2019 to 21.10.2021, bonus dues, gratuity dues, workers dues, staff dues, Printed from counselvise.com Page No.# 19/22 which comes to total Rs. 8,31,87,498.21/- (Rupees eight crore thirty one lakhs eighty seven thousand four ninety eight and twenty one paise) only. 32. It transpires that the respondent authority is authorized to recover the dues of Rs. 1,97,47,669.10/- (Rupees one crore ninety seven lakhs forty seven thousand six hundred sixty nine and ten paise) only, however, the mode of payment is silent under the Assam Tea Plantation Scheme Act, 2016, but obviously provides for contribution and the payable amount of recovery contributions of the provident fund and mode of recovery with its statutory interest and administrative dues etc. It is unfathomable that the authorities could show a huge amount of Rs. 8,31,87,498.21/- (Rupees eight crore thirty one lakhs eighty seven thousand four ninety eight and twenty one paise) only as arrears as nothing is discernable from the records nor the learned senior counsel for the respondents could able to show as to whether such payment is authorized under the Statute. The Statute provides for the contribution and the mode of recovery in default of contribution and payment towards provident funds and other statutory interest as well as administrative costs. 33. On the face of the recovery certificate, the dues recoverable is Rs. 1,97,47,669.10/- (Rupees one crore ninety seven lakhs forty seven thousand six hundred sixty nine and ten paise) only at the time of issuance of demand notice and as admitted by the petitioner, an amount of Rs. 1,63,82,039/- (Rupees one crore sixty three lakhs eighty two thousand thirty nine) only payable as gratuity. If taken on the face of the recovery certificate, the actual amount to be recovered is Rs. 1,97,47,669.10/- (Rupees one crore ninety seven lakhs forty seven thousand six hundred sixty nine and ten paise) only and gratuity and other statutory interests and costs. Thus, in terms of the recovery certificate Printed from counselvise.com Page No.# 20/22 and as admitted, it appears that the recoverable amount is Rs. 3,61,29,708/- (Rupees three crore sixty one lakhs twenty nine thousand seven hundred eighty) only. Therefore, the petitioner may be entitled to refund a sum of Rs. 2,35,70,292/- (Rupees two crore thirty five lakhs seventy thousand two hundred ninety two) only. As noted above, there is no clarity as regards the calculation, although a huge amount is shown to have been due for which an amount of Rs. 5,97,00,000/- (Rupees five crore ninety seven lakhs) only, stated to have adjusted, which has been received through auction sale of the Tea Garden of the petitioner. However, it is not possible for this Court to come to a conclusion as regards the claim of the respondents as except for the chart showing the dues payable by the petitioner, there is nothing on record to show that such calculation showing such dues is permissible under the law or not. Under such circumstances, the balance would tilt in favour of the petitioner as the authority is bound by the scope of the recovery certificate and cannot act contrary thereto or beyond its express terms. Under the provisions the Recovery Officer is empowered only to recover arrears relating to provident fund and allied statutory charges strictly in accordance with the recovery certificate. By paying the dues by adjusting the amount out of sale proceeds, some of which appears to be unrelated to the recovery certificate, respondent authority has acted beyond the scope of the Statute and the authority vested therein. 34. Undisputably, the tea garden of the petitioner was sold by way of auction in exercise of powers under the Assam Tea Plantation Scheme Act, 2016, following the procedure prescribed therein for recovery of provident fund dues. A certificate was issued on 01.10.2019 for an amount of Rs. 1,97,47,669.10/- (Rupees one crore ninety seven lakhs forty seven thousand six hundred sixty nine and ten paise) only towards the arrear of provident fund contribution, PF Printed from counselvise.com Page No.# 21/22 administrative costs, 15% statutory interest on delayed deposit of provident fund contribution etc. The amount due stood fully recovered through the auction sale of tea garden, which was purchased by Umatara Tea Estate for a consideration of Rs. 5,97,00,000/- (Rupees five crore ninety-seven lakhs only). The certified provident fund dues being only Rs. 1,97,47,669.10/- and other statutory dues, in terms of the provisions of the Assam Tea Plantation Scheme Act, 2016, the balance amount is required to be refunded to the petitioner and cannot be appropriated or distributed by the provident fund authorities as the power and jurisdiction of the respondent authorities is confined to provident fund, pension fund and deposit link insurance fund as well as statutory interest and administrative costs only. As admitted by the petitioner, the gratuity liability as claimed by the respondents at Rs. 1,63,82,039/- (Rupees one crore sixty three lakhs eighty two thousand thirty nine only), the total recoverable amount would come to Rs. 3,61,29,708/- (Rupees three crore sixty one lakhs twenty nine thousand seven hundred eight only). Accordingly, out of the total auction consideration of Rs. 5,97,00,000/- (Rupees five crore ninety-seven lakhs only), a surplus amount of Rs. 2,35,70,292/- (Rupees two crore thirty-five lakhs seventy thousand two hundred ninety-two only) is liable to be refunded to the petitioner as surplus sale proceeds arising out of the auction held on 07.10.2021. 35. For the foregoing reasons, I am of the considered view that the petitioner is entitled to a refund of surplus amount of Rs. 2,35,70,292/- (Rupees two crore thirty-five lakhs seventy thousand two hundred ninety-two only) as surplus sale proceeds arising out of the auction sale of the Tea Garden of petitioner held on 07.10.2021. Accordingly, it is directed that the respondent authorities shall refund the surplus amount of Rs. 2,35,70,292/- (Rupees two crore thirty-five lakhs seventy thousand two hundred ninety-two only) to the petitioner within a Printed from counselvise.com Page No.# 22/22 period of 45 days from the date of receipt of certified copy of this order. However, the respondent authorities are at liberty to recover any statutory dues from the petitioner as may be permissible under the law. 36. Writ petition stands disposed of in terms above. No order as to cost(s). JUDGE Comparing Assistant Printed from counselvise.com "