JUDGMENT :- 1. Heard Mr.AR.L.Sundaresan, learned senior counsel representing Mr.D.Kothandaramasamy, learned counsel for the petitioner, Mr.K.Gunasekaran, learned counsel for the respondents 1 and 2 and Mr.B.Dhanaraj, learned counsel for the third respondent. 2. The writ petition was filed by the Ex-Director of the third respondent M/s.Madhu Spinning and Weaving Mills Private Limited, Coimbatore, challenging an order dated 22.11.2000 passed by the first respondent Recovery Officer. 3. By the impugned order, the Recovery Officer attached to the Provident Fund department, informed the petitioner that M/s.Madhu Spinning and Weaving Mills (P) Ltd, Coimbatore failed to pay a sum of Rs.28,65,157/- in respect of certificates dated 21.4.1997, 7.4.1998 and 21.4.1999 and the same was forwarded to the Recovery officer and that in default in paying the said amount, penal interest has to be levied under Section 7Q of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (herein after shortly referred to as "EPF and MP Act"). Therefore, the petitioner being a director of the defaulter establishment, she was prohibited from transferring or charging the properties set out in the said order. The properties were all situated in the Kerala State and solely belonged to the petitioner and there was no dispute regarding the same. 4. The petitioner challenging the attachment notice issued by the first respondent, filed this writ petition and contended that she ceased to be the Director as well as on 30.9.1991 and the resolution of the company will clearly show the same and that she was not in-charge of the administration of the Mill and there was no justification for attaching her property and the third respondent Mill has already gone into liquidation and the Official Liquidator is in-charge of the said Mill. Therefore, the petitioner sought to challenge the order of attachment. 5. The writ petition was admitted on 13.4.2005. Pending the writ petition, only notice was ordered in the application filed for grant of stay. 6. In response to the challenge made in this writ petition, respondents 1 and 2 have filed a counter affidavit dated 27.4.2011. With reference to the liability payable by the Company to the department, it was averred at para nos. 9 and 10 as follows: "9. It is submitted that the petitioner was the Director of the company till winding up. In response to the challenge made in this writ petition, respondents 1 and 2 have filed a counter affidavit dated 27.4.2011. With reference to the liability payable by the Company to the department, it was averred at para nos. 9 and 10 as follows: "9. It is submitted that the petitioner was the Director of the company till winding up. It is pertinent to mention that the petitioner has been cited as a Director and included as the sixth respondent in the Original Application filed by M/s.ICICI Bank Ltd, formerly Bank of Madura Ltd. before the DRT in the year 1998. It is submitted that based on the orders of the DRT dated 25.6.2001, the third respondent adjudicated a sum of Rs.17,10,22,550/-as the dues towards the secured creditors. It is humbly submitted that the petitioner has not made any iota of protest for including her name as a respondent in the capacity of Director of the company. It is also submitted that the petitioner held 1500 shares out of issued quantity of 10005 shares by the company. In addition the husband of the petitioner Shri K.P.Sethuramalingam also held another 1500 shares and both of them were in control of the business of the company till it was wound up." "10. The respondent submits that the averments made in para 4 and para 5 of the affidavit are denied as false and the petitioner is put to strict proof of the same. In para 5 of the affidavit, the petitioner has stated "Sri.K.P.Ramalingam stated that Smt.Kamalam Sethuramalingam is not seeking appointment as Director". It is submitted that the careful reading of the above statement will reveal that there was no relinquishment of the Directorship by the petitioner by herself. The statement is made by the husband of the petitioner. The petitioner has not filed any proof for her claim of resignation from the directorship through Form-32 filed before the Registrar of companies. Therefore, the present submission made by her for ceasing to be a Director, is only to extricate her from the liabilities of the provident fund dues, charged on her as 'employer' under EPF Act." 7. The petitioner has not filed any proof for her claim of resignation from the directorship through Form-32 filed before the Registrar of companies. Therefore, the present submission made by her for ceasing to be a Director, is only to extricate her from the liabilities of the provident fund dues, charged on her as 'employer' under EPF Act." 7. Therefore, the only issue raised herein for consideration is, as to whether the petitioner, who was a former Director of the Company and subsequently ceased to be its Director, was in any way personally held liable to pay provident fund dues payable by the company and for which the Provident Fund Department issued notice attaching the individual properties of the said Director? 8. Mr.AR.L.Sundaresan, learned senior counsel for the petitioner referred to the definition of term "employer" under Section 2(e) of EPF and MP Act which reads as follows: "2(e) Employer means- (i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manger of the factory under clause (f) of sub section (1) of section 7 of the Factories Act, 1948 (63 of 1948), the person so named; and (ii) in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent." The learned senior counsel contended that there is a distinction in the term "employer" found in Section 2(e)(i) and 2(e)(ii). In respect of a factory, it is the owner or occupier or the legal representative of a deceased owner or occupier is set out as the employer; whereas, in respect of any other establishment, the person who or the authority which, has the ultimate control over the affairs of the establishment, will be held responsible. The 3rd respondent Mill being a factory, if the properties of the company are not sufficient towards the dues, then in terms of the Act, it is the occupier notified will be held to be responsible and not every Director of the Company owning the factory. 9. The 3rd respondent Mill being a factory, if the properties of the company are not sufficient towards the dues, then in terms of the Act, it is the occupier notified will be held to be responsible and not every Director of the Company owning the factory. 9. The learned senior counsel also drew the attention of this Court to the judgement of the Supreme Court reported in 1991 Supp (1) SCC 204 in Employees' State Insurance Corporation, Chandigarh v. Gurdial Singh and others. In that case, the Supreme court dealt with the definition of the term "Principal employer" under Section 2(17) of Employees State Insurance Act, which is more or less similar to the definition found in Section 2(e) of EPF and MP Act. In paras 2 and 3 of the judgement, it was held as follows: "2. There is no dispute that clause (ii) does not apply. What is relevant to consider is whether the liability of Directors is covered under clause (i) and if it is, clause (iii) being residuary would not apply and in case it is not covered by clause (i), the matter would be regulated by clause (iii). Admittedly the company had a factory and it is not in dispute that the occupier of the factor had been duly named. It is also not in dispute that it had a manager too. In view of the clear terms in the definition, we are of the view that Directors did not come within clause (i) but the occupier being there, clause (i) applied and in that view of the matter, clause (iii) could have no application." "3. Learned counsel for the appellant relied upon two decisions as precedents. In the case of the Bombay High Court in Suresh Tulsidas Kailachand v. Collector of Bombay, the court found liability by relying upon clause (i) of the definition without first ascertaining whether the matter was covered by clause (i). Now on our finding in the instant case that clause (i) applied, we do not have to go to clause (iii) where the liability is of the person who is responsible for the supervision and control of the establishment. The other decision on which reliance has been placed is in the case of B.M.Chatterjee v. State of West Bengal. Now on our finding in the instant case that clause (i) applied, we do not have to go to clause (iii) where the liability is of the person who is responsible for the supervision and control of the establishment. The other decision on which reliance has been placed is in the case of B.M.Chatterjee v. State of West Bengal. That was a case where a learned Single judge proceeded on the footing that the Directors were owners of the company. We called upon the learned counsel for the appellant to substantiate the proposition that Directors in the absence of anything more would have to be treated owners of the company and he has candidly accepted the position that in the absence of facts and proof of actual position, Directors cannot be treated ipso facto as owners. Thus, no support is available from the precedents. We are of the view that the High Court was right in its conclusion that the liability was of the company and in the event of their being an occupier, he was liable to meet the demand." (Emphasis added) Therefore, the learned senior counsel appearing for the petitioner contended that merely the petitioner being a Director of the Company, the question of proceeding against her property is not contemplated under the said Act and therefore the impugned notice attaching her properties is liable to be set aside. 10. It has to be noted that Section 8 provides "mode of recovery of moneys due from the employers" and the term "employer" under Section 8 only referring to Section 2(e). Therefore, under no circumstances, the petitioner cannot be mulcted with the liability even though she was functioning as a Director and the said stand taken by the petitioner is well found. With reference to the contention found in paras 8 to 10 of the counter affidavit, it must be held that merely because there was a proceeding before the Debt Recovery Tribunal, in which the petitioner was arrayed as one of the respondents and there was a decree against the petitioner herein and that the petitioner was holding 1500 shares out of issued quantity of 10005 shares by itself will not make her as having ultimate control over the affairs of the company. Hence, the respondents will have to proceed against the properties of the Company and failing which, against the occupier of the factory. 11. Hence, the respondents will have to proceed against the properties of the Company and failing which, against the occupier of the factory. 11. The second contention was that there was no proof that the petitioner had resigned from the Board of Directors. The petitioner has filed typed set of papers containing the minutes of the Board Meeting at pages 12 to 15 that she was not seeking appointment of Director had been recorded. It was accepted by the third respondent and the resultant vacancy was directed to be filled up in the next meeting. 12. Therefore, the respondents cannot say that in the absence of any specific resignation, the petitioner continues to be a Director. On the contrary, though she was eligible for reappointment as a Director, but she did not seek for such appointment. That will be suffice to hold that she ceased to be the Director of the Board. Under such circumstances, the impugned order passed by the first respondent is without jurisdiction and is accordingly set aside. 13. In the result, the writ petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.