Dismissed

Institute of Career v. Asst.Pro.Fund.Commn

Orissa HC6 Aug 2015WP(C)/4333/2012

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging an order under the Provident Fund Act. The petitioner argued they were exempt due to having fewer than 20 employees, relying on documents never submitted to lower authorities. The Court held it could not entertain new evidence or revisit findings.

What did the court decide?

Writ petition dismissed being devoid of merits. No new documents entertained.

Institute of Career Vs Asst.Pro.Fund.Commn — Pension and Retirement Benefits | Orissa HC (2015)

¶1

W.P.(C) No.4333 of 2012
6.8.2015 Heard.

¶2

 The petitioner has approached this court for challenging the order of Assistant Provid
ent fund Commissioner (Annexure-2 and 3) and the order of Appellate Tribunal under Annexure-4.
 It is a case where the petitioner is a educational institution (Industrial Training In
stitute) having been set up in the year 2000 to impart technical education to the poor tribal
students in the district of Sundargarh.

¶3

 The authorities of the Employees Provident Fund has initiated a proceeding under Secti
on 7-A of EPF and MP Act, 1952 and pass an order on 14.01.2002 directing the petitioner-instit
ution to deposit the amount along with interest.

¶4

 The petitioner has assailed the order before the appellate tribunal which has been dis
missed on 12.07.2011, against this order the petitioner is before this Court.

¶5

 The ground taken by the petitioner in challenging the orders/notice is that the petiti
oner is not to be covered under the EPF and MP Act, 1952 because the working strength is less
than 20.

¶6

 This point although has been raised by the petitioner but the Asst. Provident Fund Com
missioner after verifying this aspect of the matter from the acquaintance roll and the salary
weightage, it was found that the employees have not been paid salary.

¶7

 But the authorities without taking into

¶8

consideration the applicability of the provisions of the Act has fixed accountability by passi
ng an order under Section 7-A.

¶9

 Further contention of the learned counsel for the petitioner is that this point has al
so been raised before the appellate authority but the authority has not taken into considerati
on and has confirmed the order passed by the Asst. Provident Fund Commissioner.

¶10

 On the other hand, learned counsel appearing for Provident Fund has contested the case
 by filing counter affidavit by referring to documents annexed in the counter affidavit i.e.,
declaration given by the Principal regarding working force of the employees and other document
s like Investigation Proforma mentioning therein the numbers of employees shown as 20.

¶11

 It has been contended that the petitioner has produced documents regarding employee st
rength in the proceeding under Section 7-A, which substantiate that the Act is applicable.
 It has been contended that now at this stage, the petitioner is relying upon Annexure-
5 which is the employees position which shows there are 16 employees working in the institutio
n which cannot be taken into consideration at this stage because no new document can be entert
ained after the order has been passed by the Original Authority under Section 7-A of Act and b
y the Appellate Authority under Section 7-I of the Act, 1952.

¶12

 Heard learned counsel for the parties and perused

¶13

the documents on record.

¶14

 The petitioner is a institution, having been represented through its Administrative Of
ficer, has approached this Court challenging the order passed under Section 7-A and 7-i of Act
, 1952.

¶15

 The petitioner has taken the ground that as per the Annexure-5 there are only 16 emplo
yees in the petitioner-institution as such the petitioner is not coming under the parameter of
 the Act, 1952.

¶16

 Statute provides that if the working force in the establishment will be 20 or more tha
n 20 then only the provision of the Act will be applicable.

¶17

 On specific question asked to learned counsel appearing for the petitioner whether thi
s document (Annexure-5) has ever been produced before the higher authority, he has fairly answ
ered in negative.

¶18

 In a proceeding like 7-A of the Act, 195, Asst. Provident Fund Commissioner has passed
 an order after issuing notice to the petitioner providing ample opportunity, called for recor
ds, the Principal of the Institution had appeared with the Acquaintance roll and salary detail
s of certain period.

¶19

 On its perusal, the Original Authority has passed order fixing liability under Section
 7-A of the Act, 1952.

¶20

 Order passed by the original authority was challenged by the petitioner before the app
ellate authority and after taking into consideration and on perusal of the finding given by th
e Asst. Provident Fund

¶21

Commissioner has declined to interfere by assigning reasons.

¶22

 It is the accountability of the petitioner to prove that the establishment is not comi
ng under the purview of the Act but the documents which has been filed in this regard was suff
icient to prove the applicability of the Act.

¶23

 The question is that as to whether new documents at this stage can be entertained or n
ot.

¶24

 Provision of the EPF and MP Act, 1952 has been made for providing protection to the em
ployees and to avoid unfair labour practice.

¶25

 The authorities have appointed for the said purpose to look into the matter.

¶26

 The authorities under EPF Act, after initiation of a proceeding under Section 7-A, has
 issued notice upon the petitioner-institution, the petitioner had appeared defended his case
by producing acquaintance register and the salary details. On its perusal, the authority has f
ound that the provision of the Act is applicable thereafter order has been passed which has be
en confirmed by the Appellate Authority.

¶27

 The petitioner has assailed the order by relying on Annexure-5 which is list of employ
ees and submitted that the petitioner institution is not coming under the purview of Act beca
use Act provides its applicability only when the number of employees/workers will be 20 or mor
e and Annexure-5 suggests that there are only 16 employees working in Institution.

¶28

 From perusal of pleading it reveals that the petitioner has not put reliance at any ti
me ever on Annexure-5 and as such after the order passed up to the Appellate Tribunal, no new
document can be entertained by this Court sitting under Article 226 of the Constitution of Ind
ia because of the reason that the petitioner has approached this Court in this writ petition a
ssailing the legality and propriety of the order, which can only be seen by this Court on the
basis of materials/documents produced before the authority and if not considered but certainly
 not on new documents which had never been produced before the authority.

¶29

 Moreover, this Court sitting under Article 226 of the Constitution of India cannot ass
ume the power of Appellate Court and cannot reverse the fact finding given by the authority an
d the Tribunal being a concurrent finding arrived at on the basis of material produced before
them.

¶30

 In view thereof, I find no reason to interfere with the impugned order.
 Accordingly, the writ petition is dismissed being devoid of merits.

¶31

S. N. Prasad, J.

¶32

¶33

Institute of Career v. Asst.Pro.Fund.Commn

Case brief

What is this about?

What did the court decide?

Institute of Career v. Asst.Pro.Fund.Commn

Case brief

What is this about?

What did the court decide?

What the court decided

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