Assistant Provident Fund Commissioner Compliance Employees Provident Fund Organization Vs St Arvindo Academy Through Its Secretary Sri Rajkumar Sahu

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 2461 of 2017

Assistant Provident Fund Commissioner (Compliance), Surjeet Kumar, s/o Sri Virendra Singh, Employees’ Provident Fund Organization, Regional Office, Ranchi at Bhagirathi Place, Near Circuit House, Karamtoli, P.O. & P.S.-Lalpur, Dist.-Ranchi

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.... Petitioner

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St. Arvindo Academy, through its Secretary, Sri Rajkumar Sahu having its Office at Opposite-Ashok Nagar, Near-Dibdih Over Bridge, P.O. & P.S.-Doranda, Dist.-Ranchi

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…. Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Petitioners : Mr. Rupesh Singh, Advocate : Mr. Jagdeesh, Advocate For the Respondents : Mr. Mitul Kumar, Advocate

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By the Court:-

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Heard the parties.

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This Writ Petition has been filed under Article 226 of the

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Constitution of India with the prayer to issue of appropriate writ(s), order(s), direction(s) to quash the order dated 23.02.2017 passed by the Employees’ Provident Fund Appellate Tribunal (EPFAT), New Delhi in A.T.A. No. 684 (18) 2012 whereby the learned Tribunal has set aside the order of assessment against the respondent dated 26.04.2012 issued on 27.04.2012 and order dated 27.06.2012 passed under Section 7 A and Section 7 B of

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W.P. (C) No.2461 of 2017

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Employees’ Provident Fund and Miscellaneous Provisions Act, 1952.

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The brief fact of the case is that the respondent school which was established in the year 2007 was inspected by the officers of the petitioner organization for assessing as to whether it fulfills requirement to be brought under the ambit of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952. A report was submitted in July, 2008 by the Enforcement Officer stating therein that the respondent school was having a total strength of 28 employees and based upon such report, the respondent was brought under the coverage of the Act. The director of the respondent under his signature submitted the list of employees employed by the establishment in the month of July, 2008 indicating that at least 28 persons were in employment of the school premises. The secretary and president of the respondent produced attendance register of several months as well as the cash book of several months and submitted that establishment is not fit to be brought under the coverage of the E.P.F. Act upon which Smt. P.S. Naidu, Enforcement Officer was directed to visit the establishment. Smt. Naidu submitted her report on 20.04.2012 in which it was mentioned by her that employment strength consisting of teaching and non-teaching staff has not reached 20 as per the documents produced by the respondent. It was also mentioned by her that the respondent did not furnish the relevant documents to trace out the outgoing teaching and non-teaching

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staff of the respondent. Upon receipt of report of Smt. P.S. Naidu as well as the earlier report of the Enforcement Officer submitted in July, 2008, the Assessing Officer proceeded with the assessment finding default on the part of the establishment and accordingly calculated the default amount under Section 7 A totaling to Rs.4,32,280/-. The interest portion under Section 7 Q was applied on the default period amount totaling Rs.1,50,760/- vide order dated 26.04.2012 and issued on 27.04.2012.

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Being aggrieved by the said order of the Assessment, the respondent moved in Review under Section 7 B of the Act. The review petition of the respondent was rejected on 27.06.2012. The respondent then preferred an appeal under Section 7 I before the appellate tribunal though it has erroneously been printed as Section 7 B in paragraph no. 12 of the writ petition. The petitioner put appearance before the appellate tribunal and furnished the relevant document and vide order dated 23.02.2017 the appellate tribunal allowed the appeal.

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It is submitted by the learned counsel for the petitioner that the appellate tribunal has completely misconstrued the inspection report dated 20.04.2012 by Smt. P.S. Naidu and on such misconception allowed the appeal. It is next submitted by the learned counsel for the petitioner that the finding of the appellate tribunal that there is no document on record to reveal that the establishment was having 20 or more employees is an error of record as the list of employees furnished by the respondent on

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19.08.2008 goes to show that there were more than 20 employees in fact 28 to be exact. Hence, it is submitted that the prayer as made in this writ petition be allowed.

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Learned counsel for the respondent on the other hand opposes the prayer made in this writ petition. It is next submitted by the learned counsel for the respondent that in the year 2008 maximum 12/13 employees were working under the respondent. It is then submitted by the learned counsel for the respondent that when reinspection was made in the year 2012 then also as per the report of the enforcement officer vide Annexure-2/2 of the counter affidavit the number of employees were less than 20. It is next submitted by the learned counsel for the respondent that a demand has been raised on the basis of faulty assessment and a hefty penalty for the period July, 2008 to February, 2010 has been slapped. The Assistant P.F. Commissioner in an order vide Annexure-2/3 dated 27.04.2012 indicated and referred the report of Smt. P.S. Naidu and also admitted the fact that attendance and salary register of the establishment was produced but without giving any reasoning, exercising its power conferred under Section 7 A assessed dues of Rs.4,32,280/- It is further submitted by the learned counsel for the respondent that no illegality has been committed by the appellate tribunal. Hence, it is submitted that this writ petition being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here

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that it is a settled principle of law that scope of interference with an order in exercise of the power vested upon constitutional courts for certiorari is a very limited one and the finding of fact recorded by the court below cannot be interfered with in exercise of such writ jurisdiction. It is pertinent to refer here to the judgment of Hon’ble Supreme Court of India in the case of CENTRAL COUNCIL FOR RESEARCH IN AYURVEDIC SCIENCES

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& ANR. VERSUS BIKARTAN DAS & ORS. reported in 2023 INSC 733 , paragraph 53 and 77 of which reads as under:

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53. Relying on T.C. Basappa (supra) , the Constitution Bench of this Court in the case of Hari Vishnu Kamath (supra) , laid down the following propositions as well established:

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“(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.

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(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

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(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.”

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77. It being open to the tribunals to come to one or the other conclusion on the materials before them, it cannot by any means be said that the decisions are incorrect so as to attract the extraordinary jurisdiction for interference by a writ of certiorari. In a King's Bench decision in R. v. Brighton and Area Rent Tribunal, (1950) 1 All England Reporter 946, Lord Goddard, CJ. observed that: “… As the tribunal had observed all the formalities of the Act, had offended against none of its provisions or against the regulations made under it, there was no ground for holding that the tribunal's determination was not in accordance with law, and, therefore, the motions for certiorari and mandamus should be refused”. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law

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committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed: “26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases 61where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.” (Emphasis supplied)

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thus, the law is well settled that t he court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One of the consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they are erroneous.

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Now coming to the facts of the case the appellate tribunal has considered that Smt. P.S. Naidu-enforcement officer has categorically mentioned that after verification of the record of the respondent of this writ petition who was the appellant before the appellate tribunal, employment strength comprising teaching and non-teaching staff not reached 20. The appellate tribunal also considered that the assessing officer disbelieved the report dated 20.04.2012 submitted by the enforcement officer and held that the respondent of this writ petition comes under the coverage of the

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E.P.F. Act though there was no document in the case record filed before the assessing officer, which could reveal that appellant establishment was having 20 or more than 20 employees in its establishment. So far as the Annexure-2 is concerned, the same is the list purportedly under the signature of director St. Arvindo Academy. The respondent has taken a plea that there is no post of director in the academy and drawn several anomaly as in serial no.18- Kolha Ram (House Rent) cannot be termed as a post rather it can at best be shown as a expense. Similarly, at serial no. 27 and 28, president and secretary have been mentioned and no employee can be designated as president and secretary.

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Under such circumstances, this Court is of the considered view that within the limited scope of writ of certiorari, there is no justifiable reason to interfere with the impugned order passed by the Employees’ Provident Fund Appellate Tribunal (EPFAT), New Delhi in A.T.A. No. 684 (18) 2012 as there is no apparent illegality

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nor any lack of jurisdiction or violation of any principle of natural justice made by the appellate tribunal.

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Accordingly, this writ petition being without any merit is dismissed.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 20^th June, 2024 AFR/Sonu-Gunjan/-

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W.P. (C) No.2461 of 2017 7

Assistant Provident Fund Commissioner Compliance Employees Provident Fund Organization v. St Arvindo Academy Through Its Secretary Sri Rajkumar Sahu

Case brief

What is this about?

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Assistant Provident Fund Commissioner Compliance Employees Provident Fund Organization v. St Arvindo Academy Through Its Secretary Sri Rajkumar Sahu

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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