JUDGMENT : I.P. Mukerji, J. 1. The petitioner is a director of M/s. Jessop & Co. Ltd. Mr. Ghosh, learned Advocate for him submits that since 19th November, 2015, he is in Dum Dum Jail. He has been sent to civil prison by the Provident Fund Authority in execution of a certificate/certificates under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. 2. Mr. Dipak Das, is also in similar custody. The Provident Fund authority says that he is a director. His learned Advocate asserts that he resigned from the Board of directors on 27th May, 2015. 3. On the prayer of his learned Advocate, Dipak Ghosh is added as a party-respondent to this writ petition. The amendment is to be effected by his Advocate in course of today. 4. By an order dated 5th August, 2015, the appellate tribunal directed payment of an arrear of Rs. 7,08,61,714/- of the provident fund dues of the Company by instalments. If the instalments were punctually paid, no recovery proceedings were to be initiated. 5. Ms. Banerjee, learned Advocate for the Provident Fund authority submits that some instalments were paid. But from February 2015, the company failed and neglected to pay any instalment. Substantial dues are due and owing by them to the Provident Fund authority. 6. It appears from the records produced by Ms. Banerjee that Revenue Recovery Certificates were drawn up against the writ petitioner and the added respondent for an amount of Rs. 4,31,77,480/-. By notices to show cause they were threatened why they should not be thrown into civil prison. Ultimately warrants of arrest were issued under which the writ petitioner and the added respondent are now in jail. 7. Now the question which arises is whether the correct procedure was followed? 8. Mr. Ghosh refers to Section 8B of the said Act which inter-alia provides for the recovery of the amounts specified in a certificate. The Recovery Officer may, inter-alia, cause arrest of the employer and his detention in civil prison. He also showed me Section 8G of the said Act which provides that the provisions of the second and third schedules to the Income Tax Act, 1961 and the Income Tax (Certificate Proceeding) Rules 1962 would apply, as far as applicable, in such cases. 9. In Vikram Poddar v. RPF Commissioners & Others, reported in 2001 (1) CHN 476 Mr. He also showed me Section 8G of the said Act which provides that the provisions of the second and third schedules to the Income Tax Act, 1961 and the Income Tax (Certificate Proceeding) Rules 1962 would apply, as far as applicable, in such cases. 9. In Vikram Poddar v. RPF Commissioners & Others, reported in 2001 (1) CHN 476 Mr. Justice Bhaskar Bhattacharyya opined that in the matter of recovery the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 read with the said schedules to the Income Tax Act and the said rules had to be strictly followed. In the case of execution of certificates Mr. Justice Jyotirmay Bhattacharya in Sri Jagadish Roy v. The Regional Provident Fund Commissioner, West Bengal & Others, reported in (2006) 3 CAL LT 411 (HC) was of the view that the right to arrest the defaulter should not be exercised unless the Provident Fund authority was satisfied that he was neglecting to pay the dues, in spite of his ability to do so or was acting in bad faith. 10. Paragraph 73 of the second schedule to the Income Tax Act, in my opinion clearly provides a right of hearing to a person proposed to be committed to civil prison. That is the meaning I ascribe to the part of the paragraph stipulating that the defaulter would be "called upon to appear before the Tax Recovery Officer and to show-cause why he should not be committed to the civil prison." The order of the Officer has to contain reasons. His satisfaction has to be recorded on two points. First the defaulter with the object or intent of obstructing the execution of the certificate was dishonestly transferring the assets. Alternatively, he was refusing or neglecting to pay the amount. 11. In this case at the highest the petitioner and the added respondent are executive directors of the company. They are acting for a remuneration. The attachment proceedings have yielded nothing in the bank accounts of the company. Therefore, it cannot be said that the writ petitioner and the added respondent, as directors of the Company are refusing or neglecting to pay. The case of concealment or removal or dishonest transfer of the assets of the company has not been put before them. The attachment proceedings have yielded nothing in the bank accounts of the company. Therefore, it cannot be said that the writ petitioner and the added respondent, as directors of the Company are refusing or neglecting to pay. The case of concealment or removal or dishonest transfer of the assets of the company has not been put before them. Neither each of the two directors is supposed to bring funds from their personal resources to meet the liabilities of the company. 12. At least a hearing should have been given to them before issuing a warrant of arrest. 13. It also appears that the Provident Fund authority has merely attached the bank accounts of the company. They have not levied any attachment of the immovable properties of the company according to the submissions of Ms. Banerjee. 14. On consideration of the above authorities and the said Acts and the rules, I am of the view that unless the conduct of the employee is found to be obstructive or fraudulent in a reasoned order after hearing him, he cannot be arrested and detained in a civil prison. 15. In my opinion the Provident Fund authority should have proceeded to attach the other movable and the immovable properties of the company and put them up for sale to realise the provident fund dues, before contemplating arrest of these two executive directors. 16. The procedure of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 have been attempted to be followed by the provident fund authority, partially in my opinion, for wrong purposes. They are trying to reliase the huge provident fund liability of the establishment from professionals who are discharging functions as directors of the company or had discharged duties as such directors at a point of time. They are also punishing them by throwing them into civil prison without establishing the necessary fault on their part. 17. I do not think that any attempt has been made to effectively realise the amount or identify and bring to book the real person or persons who are in control of the company. 18. For those reasons, I immediately set aside the orders of arrest of the writ petitioner and the added respondent subject to the following conditions: It is stated that the added respondent does not have a passport. 19. 18. For those reasons, I immediately set aside the orders of arrest of the writ petitioner and the added respondent subject to the following conditions: It is stated that the added respondent does not have a passport. 19. The petitioner No. 1 will deposit his passport with the Officer-in-Charge of the local police station and each of them will execute a bond with at least two sureties for an amount of Rs. 20,000/-. On executing these documents by each of the petitioners they will be set free but they will not leave the Kolkata municipal district without informing the Officer-in-Charge of the local police station. Each of them will report once in a week to the said police station. 20. The Provident Fund authority is free to realise their provident fund dues in accordance with the said Acts and rules and the observations made in this judgment and order observing the due process of law. 21. All the papers are before this Court. Affidavits were not invited. The allegations contained in the writ petition are deemed not to have been admitted. 22. This writ application is thus disposed of. 23. Let a plain photocopy of this order, duly countersigned by the Assistant Registrar (Court) be given to the learned Advocate-on-Record for the parties on the usual undertaking. 24. Urgent certified copy of this order, if applied for, be supplied to the parties on priority basis. Writ application disposed of.