A Director of a company who is liable to pay provident fund dues at the time the default was committed cannot absolve himself from liability even if he is not in present management.

( 1 ) THIS writ petition has challenged the validity, legality and the propriety of the arrest effected by the Respondent No. 2, the Recovery Officer, in a proceeding initiated under section 8c of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter be said as the said Act ).

( 2 ) THE petitioner has, inter alia, claimed to have been appointed as paid Director in M/s. Loomtex Engineering (P) Ltd. , sometimes in the month of July, 1997 registered under the Companies Act, 1956 having its registered office at 16, Bonfield Lane, 3rd floor, Calcutta-1. The Loomtex Company had taken the Caladonia Jute Mills, on licence, of Chittragunj pursuant to the order of this Court dated 21st November, 1997. It has been claimed by the petitioner that he had never any control over the affairs of the Loomtex Company and was merely a name lender to act as a Director of the said Company. Undisputedly the M/s. Loomtex Engineering (P) Ltd. has committed default in payment of provident fund dues. But the petitioner having no ultimate control over the affairs of the said Company, therefore, the Provident Fund authorities could not/cannot proceed to recover the provident fund dues from the petitioner pursuant to a proceeding for recovery of the provident fund dues to the tune of Rs. 1,36,45,860/ -. The Recovery Officer passed an order of attachment on movables lying in the godown of the said Company on 14. 1. 1999 and kept the attached movables under the jimma of the Chief Security Officer, Mr. Trivedi. A sale/proclamation notice was issued by the Recovery Officer to show cause as to why the finished goods lying inside the godown which was attached before should not be put to sale. In the meanwhile from the report of the said Recovery Officer it has appeared that at present only worth of Rs. 60,000/- finished products are lying inside the godown and the rest of the materials have been stolen from the campus.

( 3 ) IN the meanwhile the Recovery Officer, the Respondent No. 2, directed the petitioner to be arrested for the recovery of the provident fund dues to the tune of Rs. 1,36,45,860/- under section 8b of the said Act. After the petitioner was taken into custody, this application has been filed for appropriate direction to the Respondent No. 2 for the release of the writ petitioner.

( 4 ) SINCE time was short, Mr. Mullick, learned Advocate appearing for the respondents, has however submitted that instead of filing Affidavit-in-opposition, he would produce the relevant documents on the basis of which the case may be disposed of.

( 5 ) IN the warrant of arrest it has been shown that the petitioner and also the Loomtex Company are liable to pay the amount of Rs. 1,56,01,102/- and the same has not yet been recovered. Therefore, in exercise of power under section 8b of the said Act, the warrant of arrest was issued and accordingly the petitioner was taken into custody.

( 6 ) MR. Mitter, learned Advocate appearing for the petitioner, has advanced a serious contention by stating that the petitioner being not in charge of the Company is not liable to make good of the amount payable to the respondents. In support of his contention, he has stated that one of the Directors, Satish Kumar Samanka, had written a letter to the petitioner as well as Titagarh Jute Mill that since the petitioner was taken as a Director, being the friend of Santilal Surana, he was not given any power under any resolution to take decisions on behalf of the Company. Reliance has been placed on another notice issued by one of the Directors, Satish Kumar Samsuhka, where it has been stated that the power of the petitioner was restricted. Therefore Mr. Mitter wanted to contend that since it would appear from the above documents that he was not a person in charge of the Company, therefore to make himself liable to pay the provident fund dues.

( 7 ) MR. Mullick, learned Advocate, on the other hand has submitted that the petitioner was a Direct