* HONOURABLE SRI JUSTICE P.S.NARAYANA +WRIT PETITION No.22516 of 2007 % 06-02-2008 # Government of Andhra Pradesh, Represented by Assistant Director of Horticulture, Kakinada, East Godavari District. …Petitioner VS. $ 1. The Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional office, Municipal Complex Building, Kambalacheruvu, Rajahmundry, East Godavari District and 2 others. …Respondents ! COUNSEL FOR THE PETITIONER: GOVT. PLEADER FOR AGRICULTURE ^ COUNSEL FOR THE RESPONDENTS: SRI R.N. REDDY < Gist : > Head Note: ? CITATIONS: [1] 2003-I-LLJ 325 2. 2005-I-LLJ 3. 1990-II LLN HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITIION No.22516 of 2007 Date: February 06, 2008 Between: Government of Andhra Pradesh, Represented by Assistant Director of Horticulture, Kakinada, East Godavari District. …Petitioner And 1. The Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional office, Municipal Complex Building, Kambalacheruvu, Rajahmundry, East Godavari District and 2 others. …Respondents * * * ORDER: Heard the learned Government Pleader for Agriculture, representing the writ petitioner and Sri R.N. Reddy, learned counsel representing the respondents. 2. This Court issued rule nisi on 25.10.2007 and granted interim suspension for a period of two weeks in W.P.M.P.No.29266 of 2007 which is being extended from time to time. 3. The writ petition is filed for a writ of certiorari to call for records pertaining to the orders passed by the second respondent dated 05.4.1999 vide orders No.AP/VP/31545/RJY.I/Enf.II/99/ 3809 as well as the orders passed by the third respondent in A.T.A.No.343(1)/2005, dated 24.5.2007 and set aside the same, as arbitrary, illegal and against the principles of natural justice and pass such other suitable orders. 4. Learned Government Pleader for Agriculture had taken this court through the contents of the impugned order and would maintain that no reasons had been recorded, much less, convincing reasons. The learned Government Pleader for Agriculture also would contend that even before the Primary Authority no proper opportunity had been given and further raising several grounds a review also had been filed and the same was not considered in proper perspective. Hence, the principal question which had been raised had not been decided at all and in a routine way even the third respondent had confirmed the orders made by the Assistant Provident Fund Commissioner, Rajahmundry and hence, the writ petition to be allowed and the impugned order to be quashed. 5. On the contrary, Sri R.N. Reddy, learned counsel representing the respondents had taken this Court to the counter-affidavit filed by R-1 and R- 2 and would maintain that in the facts and circumstances of the case, the stand taken by the writ petitioner is unsustainable. Though an opportunity had been given, the same had not been availed. Subsequent thereto the review was filed on unsustainable grounds and the same had been rejected. The learned counsel also had taken this Court through the contents of the counter-affidavit, affidavit filed in support of the writ petition and the reply affidavit as well and would maintain that in the peculiar facts and circumstances the relief prayed for in the present writ petition cannot be granted. 6. The Government of Andhra Pradesh, represented by the Assistant Director of Horticulture, Kakinada, East Godavari District, filed the present writ petition. The Assistant Director of Horticulture, Kakinada had sworn to the affidavit filed in support of the writ petition and specified that the petitioner had been officiating as Assistant Director of Horticulture, Kakinada and working from 06.9.2006 in the above capacity. It is further stated that the post of Assistant Director of Horticulture Department, Kakinada, formerly called as Deputy Director of Horticulture, Rajahmundry, East Godavari District and the petitioner is administrative head of the Horticulture Farm at Rajahmundry. The funds of the farm used to be provided by the Horticulture Development Agency, office of the Commissioner of Horticulture, A.P., Hyderabad. In this institution, there were 9 Horticulture Officers, 7 Sub-Assistants, 1 Superintendent, 1 Senior Assistant, 1 Junior Assistant, 1 Typist working as subordinate staff with regard to Class-IV and other services i.e., 1 jeep driver, 3 attenders and 1 Watchman, totally 25 employees were working under the petitioner’s control and all the employees were covered by General Provident fund. During the year 1990 to 2000 about less than 10 agricultural labour were engaged by Horticulture Farm during season for the purpose of grafting work. In fact, the said work is neither perennial nor regular in nature and engaged only on work need basis. Further, the department never engaged more than 10 workers at any point of time and that too their engagement is not continuous. Further from the year 2002, even the engagement of agricultural labour was made through contract basis. It is also averred that there was another unit called as ‘Oil Palm Seed Garden’ at Rajahmundry which is to be looked after by a separate authority namely, the Assistant Director of Horticulture, Oil Palm Seed Garden, Rajahmundry formerly known as Assistant Director of Horticulture (PMOPDP), Rajahmundry. In the Seed Garden, Rajahmundry, the Project work, the labour used to be engaged in this unit to remove the waste on the land of the garden and the removal of waste which is also neither perennial nor regular in nature. Further, the funds to this garden used to be released by separate funding agency which will mainly comes under Centrally Sponsored Scheme. As such, both the units are separate and distinct and not interrelated with each other. It is also averred that as labour engaged in the Horticulture Farm do not exceed more than 10 persons, the provisions of Section 1 (3)(a) of E.P.F. Act 1952 do not apply to the Horticulture Farm and therefore the petitioner-department is not liable to pay any employees Provident Fund contribution. While that being so, all of a sudden the second respondent i.e., Regional provident Fund Commissioner, Visakhapatnam issued notice in the name of M/s Horticulture Farm and Seed Garden, Rajahmundry vide No.AP/31545/SRO/VSP/Enf.II/RJY/97/1656, dated 06.11.1997 stating that the said establishment had employed 20 persons on 01.6.1997 and based on the records submitted by the Enforcement Officer dated 2.7.1997, M/s Horticulture Farm and Seed Garden was liable to pay E.P.F. and E.D.L.I. dues for the period from 01.6.1997 to 31.10.1997 and further directed to pay the said arrears on or before 15.11.1997. In pursuance of the same, the Deputy Director of Horticulture, Rajahmundry had submitted a reply on 16.3.1998 stating that as per the notification issued by the Ministry of Labour, New Delhi, contribution of Employees Provident Fund to the casual labour working in the Horticulture Farm is exempted. Subsequently the concerned Deputy Director of Horticulture failed to produce such documents and accordingly after adjourning the matter and eventually orders were passed by the Assistant Provident Commissioner, Visakhapatnam on 05.4.1999 under Section 7 (A) of Employees Provident Fund & Miscellaneous Provisions Act 1952 directing the Deputy Director of Horticulture of M/s Horticulture Farm and Seed Garden, Rajahmundry to pay Employees Provident Fund Contribution to the respective Employees Provident Fund Account numbers de-linked contribution and other charges to an extent of Rs.2,08,902/- within a period of 7 days from the date of receipt of the assessment order, failing which action will be initiated by filing prosecution complaints. It is also stated that subsequently the Regional Provident Fund Commissioner, Visakhapatnam had issued a notice dated 16.7.1999 directing the Deputy Director of Horticulture of Horticulture Farm and Seed Garden, Rajahmundry to appear before him on 18.8.1999. Subsequently the petitioner-department addressed letter dated 28.02.2000 to Assistant Provident Fund Commissioner, Rajahmundry stating that the orders passed under Section 7A of the Employees Provident Fund Act was not correct as there were no such number of casual labour working in the Horticulture Farm, Rajahmundry and further the very notice as well as the orders passed against two separate units which altogether under separate administrative controls and different units and authorities cannot pass orders by fixing liability treating two independent units as one unit and therefore, the very report submitted by the Enforcement Officer initially on 06.11.1997 was not based on records and accordingly requested to revoke the orders dated 5.4.1999. Again on 8.8.2001, an application was submitted to the Assistant Provident Fund Commissioner, Rajahmundry requesting to review the order dated 5.4.1999 passed under Section 7 A of the Act. In the review petition, it was categorically urged that the orders were passed against two different units treating as one unit. There was no list of names of the members. The said application was filed under Section 7B of the Act. In pursuance of the same, the Assistant Commissioner, provident Fund, Rajahmundry passed orders on 31.12.2002 rejecting the application stated that the power of review was restricted (1) to the extent of discovery of new fact and important matter of evidence which was not in the knowledge of the employer or could not be produced by him at any time in exercise of the due diligence and (2) a mistake or error apparent on the face of the record. As the reviewing authority did not find any such contingencies and accordingly there was no mistake or error apparent on the face of the record and accordingly passed orders rejecting the review application under Section 7 B of the Act. While passing the orders rejecting the review application, the Assistant Provident Fund Commissioner, Rajahmundry mentioned the name of the department as Assistant Director of Horticulture only. Subsequently, another notice was issued directing the Horticulture Farm and Seed Garden, Rajahmundry to pay an amount of Rs.2,08,902/-. Thereafter, notices had been issued from time to time reiterating the same demand. It is also averred that aggrieved by the action of the respondent authorities in passing the orders and treating both the different units in the Department as one unit and without conducting any inquiry and inspite of the fact that the review application had been filed without taking into consideration of the same, the same was rejected and accordingly approached this Court by filing a writ petition against the orders passed by the Assistant Commissioner, Provident Fund Rajahmundry. The said writ petition W.P.No.25469 of 2002 had been dismissed at the stage of admission by following the decision of Division Bench of this Court in W.P.No.15970 of 1992 dated 28.3.2002 wherein the Division Bench of this Court directed the petitioner to avail alternative remedy of appeal to the Appellate Tribunal, New Delhi. It is also averred that as per the directions of this Court, an appeal was filed before the Employees Provident Fund Appellate Tribunal, New Delhi in A.T.A.No.343 (1)/2005, dated 05.4.2005, challenging the orders passed by the Assistant Provident Fund Commissioner, Rajahmundry. In the memorandum of appeal it was categorically urged that the orders of the Assistant Provident Fund Commissioner, Rajahmundry were arbitrary and illegal, as the same was passed by treating two different administrative units i.e., Horticulture Farm Unit, Rajahmundry and Seed Garden unit, Rajahmundry as one unit and directing to pay Employees Provident Fund contribution to its employees, though both the units are different or distinct and do not interrelated. Inspite of the same, the original authority failed to take into consideration. Further in the Horticulture Farm, which was under the control of the petitioner- authority i.e., Assistant Director of Horticulture, Kakinada, there were not more than 10 agricultural labourers had worked and therefore, the Department of Horticulture, Kakinada do not come under the provisions of the Employees Provident Fund Act. Without properly considering the same, the staff of the second respondent issued cyclostyled notices. Therefore, the orders passed by the original authority are liable to be set aside. Curiously, the respondent-department had filed counter-affidavit in the appeal and the copy of the same had been placed before this Court. Even in the counter-affidavit, respondent-department failed to meet the specific averments that the orders passed by the original authority treating two different units as one unit and, therefore, the very orders of the original authority directing the Assistant Director of Horticulture of Horticulture Farm and Seed Garden, Rajahmundry to pay the EPF arrears was bad. But in the counter-affidavit, the respondent-department failed to give any specific reply. Further, even the Appellate Tribunal also failed to consider the very important fact whether there are two units or one unit, but the Appellate Tribunal had passed orders contrary to the provisions of the Act, stating that “between M/s. M.V. Prasad Rao, Asst. Director of Horticulture, Govt. of A.P. and APFC, Guntur, a similar order was passed by this Tribunal on 5.8.2005 holding therein that as per para 26 of the Employees Provident Fund Scheme, the casual labourers working in the establishment had to be enrolled as employees Provident Fund Member and were eligible for P.F. benefits. When the order passed in A.T.A.No.386 (1)/01 was similar and, therefore, the said orders were squarely applicable to the present case also”. By observing the same, the third respondent Appellate Tribunal dismissed the appeal. But while passing the order the Tribunal failed to consider whether the orders passed by the original authority in treating the two different administrative units as one unit and the respondent-authorities had no right to treat the two different units as one unit. Therefore, the order passed by both the authorities was perverse and not based on the records. Therefore, the impugned orders are liable to be set aside. It is also averred that after passing the orders, the second respondent passed attachment orders under Section 8(1) of the Act and by seizing the bank account of the petitioner-department. The copy of the attachment order had been placed before this Court. Several specific grounds also had been raised in the affidavit filed in support of the writ petition. 7. In the counter-affidavit filed by respondents 1 and 2 it is averred that the Employees Provident Fund and Miscellaneous Provisions Act, 1952 applies as soon as the employer starts employing 20 persons and that the definition ‘employee’ under Section 2(f) of the Act includes all kinds of employees and it do not discriminate between regular and daily wage earners. However, the petitioner himself agreed that they employed 25 regular employees and 10 agriculture labourers. Further it is stated that the Horticulture Farm and Oil Palm Seed Garden were not different, but they are only two farms under the control of the petitioner and they were not different and independent. Admittedly, the petitioner did not prove these allegations by producing any evidence either before the primary authority or before Appellate Tribunal. 8. In para 2 of the reply affidavit the details of payment of GPF had been mentioned in the pay-bills had been referred to and further it was specified with regard to the daily wage labour engaged by the establishment. They did not exceed more than 10 persons at any point of time. As per the definition of ‘employee’ in Section 2(f) of the Act aforesaid, any person, who is employed for wages in any kind of manual or otherwise who gets wages directly or indirectly from the employer. The above said definition is not applicable in the case of regular employees. Further it is stated that as already stated above, the regular employees are drawing salaries every month and certain amounts had been contributed by the employer towards GPF and in proportion to that, certain amounts had been deducted from the salaries of the regular employees. But the provisions of EPF Act do not cover those regular employees. When any institution engages daily wage employees more than 20, the concerned establishments had to pay EPF matching provident fund contribution part only after getting the employee part of the contribution of EPF from the individual employee. As such the contention of the respondent that the definition of the ‘employee’ under Section 2(f) of the Act includes all kinds of employees and does not discriminate between regular and daily wage earners is not correct. It is further stated that the respondents without application of mind initiated action by clubbing the two separate establishments and passed orders determining EPF, Employees Pension Fund, Employees Deposits Delinked Insurance Fund Contributions and administrative charges under Section 7 A of the Act. The details of two establishments are submitted hereunder: “The Horticulture Farm Rajahmundry is under the control of the petitioner department, where as the Oil Palm Seed Garden, Rajahmundry is a different establishment and it is nothing to do with the petitioner department.” In fact, Horticulture Farm, Rajahmundry was under the control of Deputy Director of Horticulture, Rajahmundry until August 2002. Subsequently as per the orders of the Government in G.O.Ms.No.222, dated 19.6.2002 certain reorganizations were taken place and in view of that, the Horticulture Farm, Rajahmundry comes under the control of the Asst. Director of Horticulture, Kakinada. Accordingly, the Deputy Director of Horticulture, Rajahmundry had been re-designated as Asst. Director of Horticulture, Kakinada since August 2002. The office of the Asst. Director of Horticulture, Kakinada is a regular establishment in Horticulture Department and it had got permanent employees and Drawing Officer. In so far as the Oil Palm Seed Garden, Rajahmundry is concerned it is a centrally sponsored scheme of Govt. of India. The said scheme will be implemented by the Asst. Director of Horticulture, (Plantation Manager Oil Palm Development) Rajahmundry. In fact, this scheme is not a regular establishment/office and it is only a scheme for development of particular project and it was commended from the year 1993-94. In the scheme, there will not be any regular employees and the existing staff of the Asst. Director of Horticulture, (PMOPDP) Rajahmundry will be deployed for implementation of the scheme. The Drawing Officer for implementation of the said scheme till August 2002 was the Asst. Director of Horticulture (PMOPDP), Rajahmundry. Subsequently, in view of reorganization, the Asst. Director of Horticulture, Oil Palm Seed Garden, Rajahmundry is the Drawing Officer exclusively for implementing the scheme under his control which is entirely different and distinct with the petitioner-department. When these two units are different, but for the purpose of applying provisions of EPF Act and for claiming the amount, the respondent-authorities passed orders by clubbing different units as one unit. Even in the counter-affidavit, the respondent-department contended that the Horticulture Farm, Rajahmundry and Oil Palm Seed Garden are one unit without substantiating their stand. It is also stated that after passing the orders by the primary authority, the petitioner department filed an application under Section 7B of the Act requesting the authorities to review the matter on the sole ground that the action of the respondents in clubbing the two different units as one unit and passing ex parte orders under Section 7 A of the Act is not correct. On the said application, orders were passed by the Primary Authority on 31.12.2002 rejecting the review application stating that the review application can be filed only on two grounds i.e., one for discovery of new and important fact, which is not in the knowledge of the employee or (2) mistake or error apparent on the face of the record, but the grounds urged in the review petition is not covered by the above two grounds and accordingly the review petition had been rejected by the primary Authority without giving any opportunity. Further, when the same issue was raised by filing an appeal and as the appeal is in continuation of original proceedings and therefore, the appellate authority had to take into consideration of all the grounds urged in the appeal and pass orders, even though the respondent department files counter-affidavit but not denying the main plea of the appellant that the Oil Palm Seed Garden is not under the control of the Deputy Director of Horticulture Rajahmundry. Therefore, the provisions of the EPF Act are not at all applicable to the petitioner department. 9. These are the respective stands taken by the parties. The impugned order made by the third respondent in ATA No.343(1)/2005, dated 24.5.2007 reads as hereunder: “Notwithstanding the facts that the present appeal is barred by limitation, on merits, the case of the appellant is that the daily wage labourers were engaged by the applicant at its Oil Palm Seed Garden at Rajahmundry. Such daily labourers were not regular employees of the appellant and no rolls/list of workers was maintained since such daily wage labourers were not continued for more than one day in a week. In support of this submission no records have been produced by the appellant before the 7A authority also the appellant has failed to produce the record. Consequently the APFE, A.P. passed the order on the basis of Inspectors report. In the counter affidavit filed by the respondent, it is mentioned that in an identical matter in ATA 386(1) 2001, in the matter between M/s. M.V. Prasad Rao, Asst.Dir. Horticulture, Govt. of A.P. and APFC. Guntur a similar order has been passed by this Tribunal on 05.8.2005 holding therein that as per para 26 of the EPF Scheme, the casual labourers working in an establishment have to be enrolled as EPF member and are eligible for PF benefits. The facts of the present case as well as the facts leading the decision by this Tribunal in ATA No.386(1)/2006 are identical. Therefore I have no hesitation to follow the order of this Tribunal dated 05.8.2005 and to hold that the workers are eligible for PF benefits under the EPF & MP Act and the schemes thereunder. In the light of the above, there is no force in the present appeal and the same is being dismissed being devoid of merits. The appeal file be consigned to the record room. Copy of this order be sent to both the parties.” 10. Even in the memorandum of appeal filed before the third respondent it was specifically stated as hereunder: “It is submitted that Horticulture Farm under the control of the Additional Director at Rajahmundry and M/s. Oil Palm Seed Garden under the control of Deputy Director, are two separate wings. The M/s. Oil Palm Seed Gardens is maintained by the centrally sponsored scheme is a separate project work.” The grounds in detail raised in the review application also had been pointed out. 11. No doubt, Sri R.N. Reddy, learned counsel representing respondents 1 and 2 made elaborate submissions that inasmuch as none of the ingredients in relation to consideration of the review had been satisfied, the review had been rightly rejected. It is not in controversy that the Assistant Provident Fund Commissioner, Rajahmundry had issued cyclostyled notice by filling up the blanks in this regard and in the order made by the Original Authority or Primary Authority it was categorically stated that as per the representations made by the General Secretary of the workers union, orders were passed and the copy of such representation was never communicated to the writ petitioner. Non-furnishing of the list or non- publication of list also had been made a ground of attack. Further it is specifically stated that two separate administrative units cannot be treated as one unit. The Original Authority failed to record any finding that as to the number of employees, salaries paid to them, whether they are members of the institution. Absolutely there is no material to show any relationship, membership or control by the petitioner of the employees. It is open to an employer to raise a dispute that the Act is not applicable and therefore the Department is not liable to fill up proforma enclosed with the notice. When such a dispute is raised, the inspector has to place the order before the Authority under Section 7A of the Act together with the report. 12. Strong reliance was placed on the decisions in B.R. Spinners Private Ltd. V. Regional Provident Fund Commissioner, Sub-Regional Office, Ludhiana and another[1]; Mankoji Rao V. v. United Commercial Corporation, Madanapalle and others[2] and Karachi Bakery (represented by its Managing Partner), Hyderabad V. Regional Provident Funds Commissioner, Hyderabad[3]. 13. The relevant portion of the order made by the first respondent dated 05.4.1999 reads as hereunder: “In the matter of determination of Employees Provident funds, Employees Pension Funds, Employees Deposit linked Insurance Funds, contributions and Administrative charges due from M/s. Horticulture Farms and Seeds Garden Rajahmundry, under Section 7A