Allowed

National Thermal Power Cor. Ltd. v. Regional Provident Fund Comm. and Ors.

Chhattisgarh HC20 Apr 2023WPL/2762/2011

Case brief

AI extract

What is this about?

High Court held that EPF dues cannot be assessed without identifying beneficiaries. It quashed a non-speaking tribunal order and affirmed cooperative society members are employees, remitting the matter for fresh assessment within six months.

What did the court decide?

Petition allowed; TRF order quashed; matter remitted to Assistant PF Commissioner for fresh assessment after identifying beneficiaries.

National Thermal Power Cor. Ltd. Vs… — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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W.P.(L) No. 2762 of 2011

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National Thermal Power Cor. Ltd., Korba Super Thermal Power Station, PO: Vikas Bhawan, Distt. Korba

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-----Petitioner

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Versus

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Regional Provident Fund Commissioner, Nav Bharat Press Complex Rajbandha Maidan, Raipur(C.G.)

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Asst. Provident Fund Commissioner, Nav Bharat Press Complex Rajbandha Maidan, Raipur(C.G.)

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Employees Provident Fund Appellate, Tribunal, Through the Presiding Officer,

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Skylark Building, Nehru Place, New Delhi

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----Respondents

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Cause Title taken from CIS system

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For Petitioner : Dr. N.K. Shukla, Sr. Advocate along with Shri Mayank Mulchandani and Shri Vinod Deshmukh, Advocates

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For Respondent No. 1 and 2 : Shri Sunil Pillai, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

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20.04.2023

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The petitioner has filed present writ petition assailing the order dated 09/08/2010 (Annexure P/1) passed in appeal No. ATA No. 62(8)/2003 passed by the learned Employees Provident Fund Appellate Tribunal, New Delhi and against the Interim order dated 17/04/2002 (Annexure P/3) by which the respondent No.2 has assessed the P.F. dues of Employees working in the Cooperative Society working with the petitioner to the tune of Rs.15,30,766/- under Section 7 A of the E.P.F

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Act, 1952 (for short, the Act ‘1952’)

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Brief facts reflected from the record are that the petitioner is a Government undertaking and is involved in power manufacturing sector. The respondent initiated proceeding under section 7 A of the Act, 1952 vide notice dated 11/11/1991 issued by the Regional Provident Commissioner, Indore. The Regional Provident Fund Commissioner Indore vide its order dated 11/04/1997 has rejected the prayer of the petitioner for grant of relaxation from applicability of Act, 1952. Therefore, it is directed petitioner to comply with the provisions of Act, 1952, thereafter, the proceeding were transferred to Regional Provident Fund Commissioner, Raipur.

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The proceedings under section 7(a) of Act, 1952 was initiated by the Assistant Provident Commissioner, Raipur for assessment of P.F. dues of the Members of the Cooperative Society who are land displaced persons. The petitioner submitted his reply contending no employer employee relation exists between the society and its member as the members themselves are the workers and they share the profit earned by the societies among themselves. It has also been contended that the societies are registered under the M.P. Cooperative Act, 1960 which is an independent legal entity and juristic person. Therefore, the provisions of E.P.F Act are not applicable. The learned Assistant Provident Commissioner while examining the provisions of Act, 1952 particularly the definition of “Employee” as define under the Act has held that

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members of the cooperative society are employee as per the provisions of Act, 1952, thus the Act, 1952 is applicable. Thereafter, he has assessed the sues to the tune of Rs.15,30,766/-. These orders are being challenged by the petitioner in the writ petition.

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Learned Senior Advocate for the petitioner would submit that in the garb of Interim Order dated 23/12/2002 the Assistant provident Fund Commissioner has passed the final order without identifying the beneficiaries, without assessing the actual contribution of employees as such the impugned order is bad in law. He would further submit that against that order the petitioner has preferred an appeal before the Employee Provident Fund, Appellate Tribunal, New Delhi, which has been rejected mechanically without considering the grounds raised in the appeal. Learned Senior counsel would further submit that a non speaking has been passed. He would further submit that the both the orders may be quashed.

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Learned counsel for respondent No.1 and 2 would submit that the impugned order passed by the authority as well as order passed by the Tribunal is legal, justify and does not warrant any interference.

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I have heard learned counsel for the parties and peruse the record.

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On the other hand learned senior counsel appearing for the petitioner would submit that the assessment of due without

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identification of beneficiaries is illegal and against the law laid down by the Hon’ble Supreme Court in this regard. He would further submit that before assessing the dues the identifications of the persons, their wages and contribution should be assessed which has not been done and would submit that so far as impugned order passed by Assistant Provident Commissioner with regard to assessment of dues without identification of the beneficiaries is illegal and would pray for quashing of order. He would further submit that the member of the cooperative society will not the employee for the purposed of E.P.F. Act. As such he would pray for quashing of the impugned order.

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On the other hand learned counsel for the respondent would submit that the assessment order is legal and on the basis of the information collected from the department only and on the basis of the payment made to the society, they have assessed and it is the duty of the establishment to furnish their records which they fail to do it. Therefore, this impugned orders are legal and justified and would pray for dismissal of the writ petition.

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From the impugned order it is vivid that the respondent has assessed the dues on the basis of some information supplied by the petitioner without any identification as such the assessment of dues without identification of the beneficiary, is illegal as law laid down by the Hon’ble Supreme Court in the case

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of H.P. State Forest Corporation Vs. R.P.F.C. reported in

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2009 (1) LLJ 141 SC wherein the Hon’ble Supreme Court has held as under:

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“We accordingly dismiss the appeal but reiterate the recommendation that the amounts due from the corporation will be determined only with respect to those who are identifiable and whose entitlement can be proved on the evidence and that in the even the record is not available with the corporation (at this belated stage), it would not be obliged to explain its loss or that any adverse inferences be drawn on this score. With this very small modification, we dismiss the appeals.

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From the records it is vivid that the assessment of proceedings was carried out with regard to the member of the cooperative society and the records are being kept by them, therefore, it is expedient for the respondent No.3 to summon the officer bearer of the cooperative society for assessment of dues and to identify the persons for whom the P.F. dues to be assessed. The respondent No.3 without summoning the society has assessed the dues which is illegal and against the Judgement passed by Hon’ble Supreme Court in case of Food Corporation of India Vs. Regional Provident Fund Commissioner, reported in 1990 (1) SCC68 .The Hon’ble Supreme Court has held as under:-

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The question, in our opinion, is not whether one has failed to produce evidence. The question is whether the Commissioner who is the statutory authority has exercised powers vested in him to collect the relevant evidence before determining the amount payable under the said Act.

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It is of importance to remember that the Commissioner while conducting an inquiry under Section 7-A has the same powers as are vested in a court under the code of Civil Procedure for trying a suit. The S. reads as follows:

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“7-A Determination of moneys due from employer (1) The central Provident Fund Commissioner, any Deputy Provident Fund Commissioner or any

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Regional Provident Fund commissioner may, by order determine the amount due from any employer under any provision of this Act (the scheme or the family Pension Scheme or the Insurance Scheme as the case may be ) and for this purpose may conduct such inquiry as he may deem necessary.

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From the records it is crystal clear that assessment order has been passed without any material on record regarding names, numbers of the earnings of the employees per day. Eligibility for P.F. Act as such assessment order is illegal and contrary to the judgment passed by the Hon’ble Supreme Court in case of Food Corporation of India V/s Union of India and others reported in A.I.R. 1998, S.C 2841. The Hon’ble Court has held as under:- “In the absence of material we are of the view that the High Court was not justified in assuming certain factors to fix the liability on the FCI without appreciating the relevant provisions in the act. Likewise, in the absence of the material before us we do not want to decide the issue finally and therefore we set aside the order under the appeal and remit the matter to the division bench for fresh hearing.

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Now coming to the judgment passed by the Employees Provident Fund Appellate Tribunal, New Delhi (Annexure P/1) it is quite vivid that the order is non speaking order as law has been well settled by the Hon’ble Supreme Court that the quasi Judicial authority should pass a reasoned order. From the bare perusal of the order it is quite reflect that there is no discussion how the assessment order is legal and justify as such the

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impugned order Annexure P/1 being non speaking order deserves to be quashed, accordingly it is quashed.

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Considering this aspect of the matter and law laid down by the Hon’ble Supreme Court the impugned order dated 09/08/2010 Annexure P/1 and order dated 17/04/2002 so far as assessment is concerned the finding with regard to applicability of of E.P.F Act to the members of cooperative society is affirmed as they are employees for the purpose of E.P.F. Act, 1952.

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Now the matter is remitted back to respondent No.3 for assessment of E.P.F. dues, it is directed whatever record are available with the petitioner will be produced before the authority and for actual assessment of members/ employees of the cooperative society the authorities will issue the notices to the societies for determination of dues after identifying them, so that the actual determination of the dues may be carried out and beneficiaries are being benefited of the P.F. Act which is social welfare legislation. It is also directed that the petitioner will submit the list of society which is working with them to the E.P.F. Authority who in turn will issue notice to the society. It is directed that the respondent will conclude the assessment proceeding afresh after identifying the beneficiaries within six month from the date of receipt of copy of the order.

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With aforesaid direction, the writ petition is allowed. Matter is remitted back to the Assistant Provident Fund Commissioner,

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Raipur, with above stated directions. No order as to costs.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Ashish

National Thermal Power Cor. Ltd. v. Regional Provident Fund Comm. and Ors.

Case brief

What is this about?

What did the court decide?

National Thermal Power Cor. Ltd. v. Regional Provident Fund Comm. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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