Allowed

M/S Pepsico India Holding Pvt. Ltd. v. Employees Provident Fund Appellate Tribunal and 2 Others

Allahabad HC1 Oct 2021WRIC/8935/2021

Case brief

AI extract

What is this about?

This writ petition challenged an order admitting an appeal with a 50% pre-deposit requirement without recording reasons for waiver. The Court held the order was vitiated by non-application of mind and set it aside, remitting the matter for reasoned consideration.

What did the court decide?

The impugned order dated 11.01.2021 is set aside; the matter remitted to the appellate authority to decide the waiver application on merits with a hearing.

M/S Pepsico India Holding Pvt. Ltd. Vs… — Pension and Retirement Benefits | Allahabad HC (2021)

AFR

Court No. - 18

Case :- WRIT - C No. - 8935 of 2021

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Petitioner :- M/S Pepsico India Holding Pvt. Ltd. Respondent :- Employees Provident Fund Appellate Tribunal And 2 Others Counsel for Petitioner :- Sunil Kumar Tripathi,Devesh Tripathi,Sandeep Pandey Counsel for Respondent :- Sachindra Upadhyay,Udit Chandra

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Hon'ble Ajay Bhanot,J.

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Heard Shri Sunil Tripathi, learned counsel for the petitioner and Shri Udit Chandra, learned counsel for the respondents.

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The petitioner is aggrieved by the order dated 11.01.2021 passed by the appellate authority/Employees Provident Fund Appellate Tribunal/CGIT, Shram Bhawan, ATI Campus, Udyog Nagar, Kanpur under Section 7-I of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, admitting the appeal of the petitioner subject to deposit of 50% of the dues.

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Shri Sunil Tripathi, learned counsel for the petitioner assailing the order dated 11.01.2021 contends that the petitioner is not liable to deposit any amount on filing of the appeal for two reasons. Firstly only conditional liability was fixed by the assessing authority /Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Varanasi. Secondly, the petitioner is not the principal employer. Thirdly, the order dated 11.01.2021 passed by the appellate authority is devoid of reasons.

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Shri Udit Chandra, learned counsel for the respondents could not dispute the fact that the order 11.01.2021 passed by the appellate authority/Employees Provident Fund Appellate Tribunal, Kanpur is not supported by any reasons. He submits that the petitioner is liable to make the pre-deposit amount in terms of Section 7-I of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

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Heard learned counsel for the parties.

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The assessing authority /Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Varanasi, by the order dated 15.01.2020 rendered in proceedings taken out under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 has found non payment of provident fund dues to the eligible employees. The assessing authority /Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Varanasi in the order dated 15.01.2020 found as follows:

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“25. Now, therefore, I, Shahid Iqbal, Assistant Provident Fund Commissioner in exercise of powers conferred on me under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, having regard to the facts of the case and considering the submissions made before me/evidence on record produced before me, hereby decide that the Establishment, M/s Nishtha Enterprises (together with M/s Nishtha Agency), Varanasi has failed to deposit Provident Fund dues in respect of its eligible employees amounting to Rs.7,84,194/- (Rs. Seven Lakhs Eighty Four Thousand One Hundred and Ninety Four only) for the period October, 2011 to December, 2015. The details of dues is delineated as under:

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Period	Total	A/c I	A/c II	A/c X	A/c	A/c	Total
10/2011	to Wages				XXI	XXII
12/2015

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Total Dues	3094782	484952	26612	257795	14525	309	784194
Total Paid Outstanding Dues	NIL 3094782	NIL 484952	NIL 26612	NIL 257795	NIL 14525	NIL 309	NIL 784194

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I further order that the above amount of Rs.7,84,194/- (Rs. Seven Lakhs Eighty Four thousand one hundred and ninety four only) assessed u/s 7A of the Act shall be paid by the Establishment within 15 days of the receipt of this order, failing which steps shall be taken to recover the same in the manner as provided u/s 8B to 8G of the said Act. As Establishment has fulfilled the criterion for coverage under the Act and has already been issued a Code Number for compliance, the Establishment shall be liable to pay the aforesaid assessed dues. In case the Establishment fails to do so, the Principal Employer shall be liable to pay the aforesaid assessed dues.”

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Relevant provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'Act') read with the Tribunal (Procedure) Rules, 1997 (hereinafter referred to as the 'Rules'), which govern and regulate the filing and processing of appeals, are extracted hereunder:

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“ Section 2(e) of the Act of 1952 “employer” means-

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(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 manager 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

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(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.”

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“ Section 7-I of the Act of 1952. Appeals to Tribunal .- (1) Any person aggrieved by a notification issued by the Central Government, or an

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order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub-section (4) of section 1, or section 3, or sub-section (1) of section 7A, or section 7B [except an order rejecting an application for review referred to in sub-section (5) thereof], or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order.

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(2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.”

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“ Section 7-O of the Act of 1952. Deposit of amount due, on filing appeal .- No appeal by the employer shall be entertained by a Tribunal unless he has deposited with it seventy-five per cent of the amount due from him as determined by an officer referred to in section 7A:

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Provided that the Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section.”

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“ Rule 7 of the Rules of 1997. Fee, time for filing appeal, deposit of amount due on filing appeal .- (1) Every appeal filed with the Registrar shall be accompanied by a fee of two thousand rupees to be remitted in the form of crossed demand draft on a nationalised bank in favour of the Registrar of the Tribunal and payable at the main branch of that Bank at the station where the seat of the said Tribunal is situated."

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(2) Any person aggrieved by a notification issued by the Central Government or an order passed by the Central Government or any other authority under the Act, may within 60 days from the date of issue of the notification/order, prefer an appeal to the Tribunal:

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Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days :

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Provided further that no appeal by the employer shall be entertained by a Tribunal unless he has [deposited with the Tribunal a Demand Draft payable in the Fund and bearing] 75 per cent of the amount due from him as determined under Section 7-A :

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Provided also that the Tribunal may for reasons to be recorded in writing, waive or reduce the amount to be deposited under Section 7-O.”

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The Employees' Provident Funds Scheme, 1952 also

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has a bearing on the controversy, inasmuch as, it contemplates responsibility of the principal employer to pay the employer's contribution and also on behalf of the employees employed by or through a contractor. The provision is extracted hereunder:

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“ Para 30 of the Scheme of 1952. Payment of contribution .-(1) The employer shall, in the first instance, pay both the contribution payable by himself (in this Scheme referred to as the employer’s contribution) and also, on behalf of the member employed by him directly or by or through a contractor, the contribution payable by such member (in this Scheme referred to as the member’s contribution).

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(2) In respect of employees employed by or through a contractor, the contractor shall recover the contribution payable by such employee (in this Scheme referred to as the member’s contribution) and shall pay to the principal employer the amount of member’s contribution so deducted together with an equal amount of contribution (in this Scheme referred to as the employer’s contribution) and also administrative charges.

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(3) It shall be the responsibility of the principal employer to pay both the contribution payable by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor and also administrative charges.

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[Explanation- For the purposes of this paragraph the expression administrative charges” means such percentage of the pay (basic wages, dearness allowance, retaining allowance, if any, and cash value of food concession admissible thereon) for the time being payable to the employees other than an excluded employee, and in respect of which provident fund contributions are payable, as the Central Government may, in consultation with the Central Board and having regard to the resources, of the fund for meeting its normal administrative expenses, fix.]”

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The provision for pre-deposit amount is a mandatory pre-requisite for entertaining the appeal. However, the appellate authority/Employees Provident Fund Appellate Tribunal/CGIT, Nagar, Kanpur has been vested with powers under Section 7-O of the Act of 1952 read with

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Rule 7 of the Rules of 1997 to waive or reduce the amount.

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In the impugned order dated 11.01.2021, the appellate authority/Employees Provident Fund Appellate Tribunal/CGIT, Nagar, Kanpur admitted the appeal subject to deposit of 50% of the dues.

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The provisions of Section 7-O of the Act of 1952 read with Rule 7 of the Rules of 1997 shall apply whenever an appeal is preferred by the employer. In fact as seen earlier the pre-deposit amount is a necessary precondition for entertaining the appeal.

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The nature of directions issued upon an appellant by the assessing authority/Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Varanasi in the first instance does not exclude the employer / appellant from the embrace of Section 7-O of the Act of 1952 requiring pre-deposit while filing the appeal.

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The assessing authority has found that the petitioner is a principal employer. The said finding is in issue before the appellate authority/Employees Provident Fund Appellate Tribunal, Kanpur and the petitioner has raised a ground to that effect in the appeal. The defence of an employer/appellant in appeal does not cease the applicability of the statutory requirement of making the pre-deposit while filing the appeal.

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Needless to add, the appellant may raise such grounds while making an application for reduction or

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waiver of the pre-deposit amount. Such application shall be considered on merits. There is one clarification. A full waiver granted by the appellate authority in the facts of a case merely reduces the pre-deposit amount to zero but the appellant remains within the ambit of Section 7-O of the Act of 1952. The first two submissions of behalf of the petitioner are decided in above terms.

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There is merit in the third submission of Shri Sunil Tripathi, learned counsel for the petitioner that the order passed by the appellate authority is a cryptic one and is non speaking. The petitioner had submitted an application containing grounds for waiving the predeposit amount.

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Under the proviso to Section 7-O of the Act of 1952, the Tribunal may waive or reduce the pre-deposit amount for reasons to be recorded in writing.

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The appellate authority/Employees Provident Fund Appellate Tribunal/CGIT, Nagar, Kanpur was under an obligation of law to apply its mind to the grounds raised by the petitioner and pass a reasoned order while determining the waiver / reduction of the pre-deposit amount as contemplated under Section 7-O of the Act of 1952.

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A perusal of the order dated 11.01.2021 passed by the appellate authority/Employees Provident Fund Appellate Tribunal/CGIT, Nagar, Kanpur shows that the appellate authority neglected to consider the grounds raised for waiver of the pre-deposit amount and failed to return any

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finding thereon. The order of the appellate authority is bereft of reasons. The order dated 11.01.2021 passed by the appellate authority is vitiated by non application of mind.

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In the wake of preceding discussion, this Court finds that while passing the order dated 11.01.2021, the appellate authority has failed to discharge its obligations under Section 7-O of the Act of 1952. The order dated 11.01.2021 passed by the appellate authority/Employees Provident Fund Appellate Tribunal/CGIT, Nagar, Kanpur is liable to be set aside and is set aside.

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The matter is remitted to the appellate authority/Employees Provident Fund Appellate Tribunal/CGIT, Nagar, Kanpur with the following directions:

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I. The appellate authority/Employees Provident Fund Appellate Tribunal/CGIT, Nagar, Kanpur, shall decide the application for waiver of pre-deposit amount made by the petitioner upon independent application of mind and consistent with the observations made in this judgement and as per law.

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II. The exercise shall be completed within a period of two months from the date of receipt of copy of this order downloaded from the official website of the High Court of Judicature at Allahabad along with fresh copy of representation. The concerned Court/ Authority/ Official shall verify the authenticity of such computerized copy of the order from the official website of High Court

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Allahabad and shall make a declaration of such verification in writing.

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III. The petitioner shall be given an opportunity of hearing before any order is passed on the application for waiver made by the petitioner.

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The writ petition is allowed to the extent indicated above.

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Order Date :- 1.10.2021 Ashish Tripathi

M/S Pepsico India Holding Pvt. Ltd. v. Employees Provident Fund Appellate Tribunal and 2 Others

Case brief

What is this about?

What did the court decide?

M/S Pepsico India Holding Pvt. Ltd. v. Employees Provident Fund Appellate Tribunal and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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