Jyotirmay Bhattacharya, JJ. ( 1 ) ADMITTEDLY, the petitioner was one of the Directors of M/s. Argosy Finance and Industrial Investments (I) Ltd. The respondent Nos. 3, 4 and 5 are the other directors of the said Company. ( 2 ) THE petitioner voluntarily resigned from Directorship of the said company on 25th July, 1989. ( 3 ) A recovery proceeding was initiated against the said Company for realization of its provident fund dues to the extent of Rs. 1,27,000/- for the period from August 1985 to August 1986. ( 4 ) VARIOUS modes are prescribed for recovery of such dues under Section 8b of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. One of such modes is by arrest of the employer and his detention in prison. Section 8g of the said Act provides that the provisions of the second and third schedules to the Income-tax Act, 1961 and the Income-tax (Certificate proceeding) Rules, 1962 as in force from time to time, shall apply with necessary modifications as if the said provisions and the rules referred to the arrears of the amount mentioned in Section 8 of the Employees' Provident Fund and miscellaneous Provisions Act instead of the Income-tax. ( 5 ) RULE 73 of the second schedule to the Income-tax Act, 1961 deals with the procedure for recovery of tax by arrest and detention of the defaulter. The power of arrest and detention can be exercised under sub-rule (1) of Rule 73 in two situations which are as follows: -" (a) The defaulter, with the object or effect of obstructing the execution of the certificate, has, after the drawing up of the certificate by the Tax Recovery Officer, dishonestly transferred, concealed or removed any part of his property, or (b) The defaulter has or has had since the drawing up of the certificate by the Tax Recovery Officer, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. " ( 6 ) THERE may be a third situation which is contemplated under Rule 73 (2)of the said Act which provides that notwithstanding anything contained in sub-rule (1), a warrant for the arrest of the defaulter may be issued by the Tax recovery Officer, if the Tax Recovery Officer is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate, the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Tax recovery Officer. ( 7 ) SINCE in the present case the Recovery Officer proceeded with under rule 73 (1) (b), this Court was called upon to examine as to whether the conditions as laid down in the said rule were satisfied in the instant case or not. ( 8 ) PURSUANT to the show-cause notice being Annexure 'p-1' to this writ petition, the petitioner appeared before the concerned authority with his reply which is appearing at page 33 to this writ petition wherein the petitioner agreed to liquidate his proportionate liability to the extent of Rs. 32,000/- by monthly instalment of Rs. 2,000/-, By an affidavit being Annexure 'p-4' to this writ petition, the petitioner also intimated the concerned authority that his monthly salary is rs. 4,000/- only and apart from the said earning, the petitioner has no other source of income. ( 9 ) THE petitioner also stated on oath by filing another affidavit being annexure 'p-11' that the petitioner does not hold or own any kind of immovable property anywhere in India. ( 10 ) THOUGH the petitioner could not deposit the monthly instalments in the manner as aforesaid, but still then, undisputedly he deposited a sum of rs. 29,750/- towards the said dues by instalments. The petitioner also offered to pay a further sum of Rs. 5,000/- by way of Bank Draft but the said payment was not accepted by the concerned authority. ( 11 ) INSTEAD of accepting the said amount, the concerned authority arrested the petitioner and has placed the petitioner under detention in civil prison pursuant to the order of arrest issued on 2nd March 2006 appearing at page 49 of this writ petition. ( 12 ) LET me now consider the legality of the said order of arrest. ( 13 ) HEARD the learned Advocates of the respective parties. Considered the materials-on-record. ( 12 ) LET me now consider the legality of the said order of arrest. ( 13 ) HEARD the learned Advocates of the respective parties. Considered the materials-on-record. ( 14 ) ON perusal of the said order, it appears that the said order of arrest was issued by the Recovery Officer on the ground that the certificate debtor had all along neglected to pay any substantial amount towards liquidation of the certificate dues, though sufficient opportunity was given to him during the course of the proceeding on different date to clear the said dues. ( 15 ) THE said order is, however, completely silent about the financial capability of the petitioner to pay the entire defaulted amount or any substantial portion thereof. The Recovery Officer did not make any attempt to find out as to whether the petitioner has the means to satisfy the certificates dues or not. ( 16 ) RULE 73 (1) (b) can be invoked only when the defaulter inspite of having sufficient means, failed and neglected to satisfy the certificate dues or any substantial part thereof. Mere failure and/or neglect to pay the certificate dues cannot attract the provision of Rule 73 (1) (b) as neglected or refusal implicates an element of bad faith reflecting a dishonest attempt to evade the payment of dues. In this regard reliance may be made on the following decisions: - (i) Bikram Poddar v. R. P. F. Commissioner and Ors. , reported in 2001 (I) CHN 476 , (ii) Kanaiyalal Prabhudas Maru and Ors. v. Regional Provident Fund commissioner, Maharashtra and Goa, reported in 2002 LLJ page 297. ( 17 ) THUS, this Court holds that in the absence of any finding of having sufficient means of the petitioner to satisfy the certificate dues and/or the substantial part thereof, the finding regarding the petitioner's neglect and/or failure to satisfy the certificate dues, becomes illusory. ( 18 ) IN the facts and circumstances, as stated above, this Court holds that order of arrest dated 2nd March, 2006 appearing at page 49 of this writ petition cannot be sustained. ( 19 ) ACCORDINGLY, the impugned order of arrest stands quashed. ( 20 ) THE concerned respondent is, thus, directed to release the petitioner immediately. ( 21 ) THE writ petition stands allowed. ( 19 ) ACCORDINGLY, the impugned order of arrest stands quashed. ( 20 ) THE concerned respondent is, thus, directed to release the petitioner immediately. ( 21 ) THE writ petition stands allowed. It is, however, made clear that this order will not prevent the Provident fund authorities from taking recourse to such other steps which are available to the Provident Fund authorities for realisation of the dues of the petitioner in accordance with law.