Disposed

N P Construction through Its Manager Ajit Kumar Singh v. Employees Provident Fund Organization

Jharkhand HC10 Dec 2018WPC/2341/2018

Case brief

AI extract

What is this about?

High Court quashed the writ petition maintaining the statutory remedy under Section 7-I of the EPF Act, despite the Tribunal's non-functionality. The Court granted liberty to file an appeal and stay application within 30 days, directing the Tribunal to decide first. Failure to file attracts recovery action.

What did the court decide?

Petitioner granted liberty to file appeal and apply for stay before Central Government Industrial Tribunal-1 at Dhanbad within 30 days. Respondents directed not to take coercive steps until stay order

N P Construction through Its Manager Ajit… — Pension and Retirement Benefits | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 2341 of 2018

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N. P. Construction, Chas, Bokaro, through its Manager, Ajit kumar Singh

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….. Petitioner

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Versus

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Employees’ Provident Fund Organization (Ministry of Labour, Government of India), through its Regional Provident Fund Commissioner, Ranchi 2. The Regional Provident Fund Commissioner-II, Employees’ Provident Fund Organization (Ministry of Labour, Government of India), Ranchi 3. The Assistant Provident Fund Commissioner, Employees’ Provident Fund Organization (Ministry of Labour, Government of India,), Ranchi

….. Respondents

CORAM

HON’BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner: Mr. Ashutosh Anand For the Respondents: Mr. Rupesh Singh

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06/10.12.2018 The present writ petition has been filed for quashing the order dated 24.04.2018 (Annexure-4 to the writ petition) passed by the Regional Provident Fund Commissioner-II, Employees’ Provident Fund Organization (Ministry of Labour & Employment, Government of India), Regional Office, Ranchi, Jharkhand (respondent No.2) under Section 7C of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (in short ‘the Act, 1952’) directing the petitioner to pay the PF liability within a period of 15 days on the ground that the overtime allowance was not considered earlier while determining the same.

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The factual background of the case, as stated in the writ petition, is that a proceeding was initiated under Section 7A of the Act, 1952 by the Assistant Provident Fund Commissioner, Regional Office, Ranchi (respondent No.3) and vide order dated 28.05.2009, the petitioner-organization was directed to deposit a sum of Rs.3118/- over and above an amount of Rs.63,73,319/- deposited by the petitioner as dues and further Rs.64,382/- as interest under Section 7Q of the Act, 1952. The petitioner deposited Rs.67,500/- on 10.07.2009 through demand draft. Subsequently, a vigilance inquiry was held and in pursuance of submission of the report, a notice dated 04.07.2011 under Section 7C(a) of the Act, 1952 was issued by the respondent No.2 to the petitioner-firm to appear on

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02.08.2011 and adduce evidence/statement as well as to produce all relevant

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records for conducting an enquiry and determination of the escaped amount. The petitioner appeared on 02.08.2011 and produced all the documents, however, on 22.11.2017, a commission was ordered to be constituted to verify the documents and to submit a detailed report. The said commission visited the petitioner-firm on 19.12.2017 and submitted its report on 21.02.2018 observing that overtime allowances have not been added while making computation of wages which needs to be added, moreover, the payment shown to have been made to several employees are less than the minimum wages. In the meantime, on 31.01.2018, the petitioner-firm requested for summoning 3 officers of the department for cross-examination who were engaged in preparation of the vigilance report, which was denied by the respondent No.2. However, the finding was given by the respondent No.2 on the basis of the said vigilance report itself.

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The petitioner has contended that though it repeatedly requested the respondent No.2 for providing all necessary documents and to provide sufficient opportunity of hearing to explain the allegation, yet the same was not considered and vide the impugned order dated 24.04.2018, the respondent No.2 held as under:-

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“a. Overtime allowances paid to the employees are more than the wages on which PF contribution has been deducted from 07/07 to 03/08.

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b. Establishment has not paid wages to the employees as per the Minimum Wages Act, 1948 and has split up wages to reduce the quantum of benefit to the employees.

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c. I do not find any rationality on the report dt. 21.02.2018 as Over time Allowances as per Law and as per Factory Act, 1948 was not considered by the Enforcement Officers.

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d. Assistant Director (Vigilance), East Zone, Kolkata had stated that the then assessing officer had under assessed a sum of Rs.46,48,877/-.

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e. The report of Assistant Director (Vigilance), East Zone, Kolkata is more reasonable to arrive at a conclusion.”

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Thereafter, the petitioner-firm was directed to deposit a sum of Rs.46,48,877/-

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within a period of 15 days, failing which the same would be recovered as per the provisions of Sections 8B to 8G of the Act, 1952.

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The learned counsel for the petitioner has challenged the jurisdiction of the respondent No.2 in passing the impugned order dated 24.04.2018 under Section 7C of the Act, 1952 on the ground that the same is in the form of reassessment/review, which can only be undertaken by the same authority who has passed the order under Section 7A of the Act, 1952. It is further submitted that prior to making assessment, the respondent No.2 did not allow the petitioner to cross-examine the officials who prepared the report on the basis of which the impugned order dated 24.04.2018 was passed. Though the period fixed for preferring the appeal is 60 days, yet the petitioner has been given only 15 days’ time to make payment as per the impugned order dated 24.04.2018 which is bad in law and takes away the statutory right of preferring appeal before the Central Government Industrial Tribunal No.1 at Dhanbad which is presently non-functional for want of the Presiding Officer.

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The learned counsel for the respondents submits that the present writ petition is not maintainable in view of alternative statutory remedy available to the petitioner under Section 7(I) of the Act, 1952. Vide notification dated 23.06.2017 issued by the Ministry of Labour and Employment, Government of India, New Delhi, the power of the Employees Provident Fund Appellate Tribunal has been vested to the Central Government Industrial Tribunal and all the pending cases before the Appellate Tribunal stood transferred to the respective Central Government Industrial Tribunals w.e.f. 26.05.2017 in the light of Section 185(4) of the Finance Act, 1917. On perusal of the aforesaid notification dated 23.06.2017, it would appear that the Central Government Industrial Tribunal-1 at Dhanbad has been vested with the power and authority under Section 7-I of the Act, 1952 in respect of the dispute raised by the petitioner before this Court.

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Heard the learned counsel for the parties and perused the relevant materials available on record. At the very outset, the learned counsel for the respondents has raised objection to the maintainability of the present writ

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petition on the ground that the petitioner has an

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alternative/efficacious/statutory remedy as provided under Section 7-I of the Act, 1952 against the impugned order dated 24.04.2018 passed under Section 7-C of the Act, 1952 read with notification dated 23.06.2017 whereby the Central Government Industrial Tribunal-1 at Dhanbad has been vested with the power to hear the appeal.

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To appreciate the said contention of the learned counsel for the respondents, I have perused Section 7-I of the Act, 1952 which is reproduced hereinbelow:-

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“7 – I. Appeals to the Tribunal. –

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(1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government, or any authority, under the proviso to sub-section 3, or sub-section4, of section I, or section3, 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 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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It has specifically been provided in Section 7-I of the Act, 1952 that any order passed under Section 7C of the Act, 1952 is appealable to the Tribunal (now to the Central Government Industrial Tribunal in terms with the notification dated 23.06.2017).

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The Hon’ble Supreme Court in the case of Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement & Anr. reported in (2010)

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4 SCC 772 has held as under:-

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“39. In the instant case none of the aforesaid situations are present. Therefore, principle laid down in Ratan case applies in the facts and circumstances of this case. If the appellant in this case is allowed to file a writ petition despite the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount of penalty or fulfilment of some other conditions for entertaining the appeal. (See para 13 at SCC p. 408.) It is obvious that a writ court should not encourage the aforesaid trend of bypassing a statutory provision.”

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Thus, when there is specific provision for filing appeal, the writ Court should not normally entertain the dispute which would encourage the trend of bypassing the statutory remedies. The learned counsel for the petitioner however submits that the Tribunal is presently non-functional and as such if the present writ petition is not entertained, the petitioner will be remediless.

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Considering the facts and circumstances of the case, the petitioner is given liberty to file appeal along with an application for stay of the impugned order dated 24.04.2018 passed by the respondent No.2 before the Central Government Industrial Tribunal No.1 at Dhanbad within a period of 30 days from the date of this order. The learned Tribunal is directed to decide the petitioner’s application for stay on the very first date of hearing and till such order is passed on the application for stay, the respondents shall not take any coercive step against the petitioner. However, if the petitioner fails to prefer appeal along with the application for stay within the time fixed by this Court, the respondents shall be free to take appropriate action against the petitioner for recovery of the dues.

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The present writ petition is disposed of with aforesaid liberty and direction.

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(RAJESH SHANKAR, J)

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Satish/A.F.R

N P Construction through Its Manager Ajit Kumar Singh v. Employees Provident Fund Organization

Case brief

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N P Construction through Its Manager Ajit Kumar Singh v. Employees Provident Fund Organization

Case brief

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