IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.1229 of 2011 Date of decision : 21.1.2011 The Ambala Bus Syndicate Pvt.Ltd. ....Petitioner Versus Union of India and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Baldev Kapoor, Advocate for the petitioner. ..... MAHESH GROVER, J. The petitioner has impugned the assessment made by the respondent authorities against him which was finally determined against him by the Appellate Authority under the Employees Provident Funds & Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act') vide order dated 31.8.2010 (Annexure P-5). The grievance as raised by the learned counsel for the petitioner while impugning the aforesaid assessment and its culmination by way of Appellate Authority's order is that as per para 26 of the Employees' Provident Funds Scheme, 1952, an employee was required to have completed 240 days during the period of 12 months or less in a factory or establishment against whom such a demand is raised. It is his contention that this para 26 of the Scheme as it existed at the time of coming into force of the Act was C.W.P.No.1229 of 2011 -2- subsequently amended on 31.8.1974 and then in 1981. Para 26 (1)(a) as it existed and as amended in 1981 are extracted hereunder :- “26(1)(a) Every employees employed in or in connection with the work of a factory or other establishment to which this Scheme applies, other than an excluded employee shall be entitled and required to become a member of the Fund from the beginning of the month following that in which this paragraph comes into force in such factory or other establishment, if on the date of such coming into force he has completed one year's continuous service or has actually worked for not less than 240 days during a period of twelve months or less in that factory or other establishment or in any other factory or other establishment to which the Act applies under the same employer, or partly in one and partly in the other”. Amended Para “Every employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies, other than an excluded employee shall be entitled and required to become a member of the Fund from the beginning of the month following that in which this paragraph comes into force in such factory or other establishment, if on the date of such coming into force he has completed three months' continuous service or has actually worked for not less than 60 days within a period of three months or less in that factory or other C.W.P.No.1229 of 2011 -3- establishment or in any other factory or other establishment to which the Act applies under the same employer, or partly in one and partly in the other or has been declared permanent in any factory or other establishment whichever is earlier.” With reference to the order of the Provident Fund Commissioner passed while conducting an inquiry under Section 7-A of the Act, learned counsel for the petitioner contended that there was absolutely no material before it on the basis of which the said assessment could be made against him. It is his contention that there was no record which indicated that the employees regarding whom the demand had been raised upon the petitioner had ever completed 240 days in the establishment. He thus contends that for this reason the entire proceedings are based on conjectures and the orders are thus unsustainable in the eyes of law. I have heard the learned counsel for the petitioner and have perused the relevant material which has been produced before this Court. The first order which comes into existence against the petitioner is 9.2.1978. The period to which the petitioner has been assessed pertains to the years 1970-71, 1974-75 and 1976-77. The petitioner was required to produce the record during these proceedings which he initially failed to do and it is after much delay and after sufficient opportunities that he eventually produced some record by way of register of wages of about 150 temporary employees for the years 1970-71, 1973-74, 1974-75 and 1976-77 on C.W.P.No.1229 of 2011 -4- various dates which have been indicated therein. The Provident Fund Commissioner noticed that the record reveals that the petitioner had contravened the provisions of the Act and had failed to deposit the provident fund in respect of 150 employees varying from month to month as is evident from the register of wages. The petitioner during the course of proceedings agreed to deposit his own share of the contribution and accordingly deposited a sum of Rs.36,870/-. The Commissioner concluded on the basis of the register of wages produced by the petitioner that the petitioner was liable to pay Rs.4,47,722.10 on account of liability to deposit the amount in lieu of the share of the employees. The following were the details of the assessment made against the petitioner :- “I find that on the basis of the year wise amount of wages for the year 1970-71 to 1971-72 as given in the Provident Fund are payable by the above establishment for period in question :- i) Provident Fund Contributions 379754-50 (Employees' & Employer's Share) ii)Administrative charges 10072-50 iii) Family Pension Fund Contributions 56396-50 iv) Insurance Fund Contributions 1249-50 v) Insurance Fund Administrative Charges 249-10 .................. Total : 447722-10” ................... The petitioner thereafter assailed this order by filing a civil suit which was dismissed prompting him to file an appeal and C.W.P.No.1229 of 2011 -5- regular second appeal, which were dismissed. After filing of the regular second appeal in which the defect of jurisdiction of the civil court was noticed, the petitioner availed of the remedy of filing an appeal before the Appellate Tribunal under the Act which has also been determined against him. The plea of the petitioner that there was no material regarding the tenure of the employees having worked with the petitioner establishment so as to enable the Provident Fund Commissioner to come to a conclusion much less a conclusion which has been arrived at, is misplaced. It is the petitioner who was required to produce the relevant record and substantiate the plea that such employees had not completed 240 days. The bona fides of the petitioner and the plea which he has raised come under sufficient cloud when the material that he has produced before the civil court is also examined. This is not to say that this Court is lending legitimacy to the proceedings which were under its jurisdiction, but since the petitioner took recourse to the proceedings before a forum before which he had sufficient opportunity to lead the evidence to show that the employees who were assessed by the Provident Fund Commissioner had not completed 240 days in order to shatter the validity of the inquiry conducted by the Provident Fund Commissioner, but strangely enough the petitioner did not produce any evidence. It is thus too late in the day to accept “the shots in the dark” that the petitioner is making. At no stage of proceedings even though the petitioner was associated but he did not make any effort to off set the proposed proceedings against him. C.W.P.No.1229 of 2011 -6- At this stage, learned counsel for the petitioner contends that according to Section 7-A of the Act, the proceedings were in the nature of civil suit and that the authority under the Act has the power to summon the witnesses and the record and, therefore, it was the duty of the Provident Fund Commissioner, who was the assessing authority in the first instance, to summon the entire record if he was not satisfied with the same. But he could not have resorted to make assessment which was based on conjectures. I have considered this aspect of the matter. There is indeed no doubt that the Provident Fund Commissioner has sufficient power to summon the record and the witnesses. In the instant case numerous opportunities were given to the petitioner to bring the record which he did. It is thus assumed that the petitioner produced the best record which was available with him and in case he had some records which he had withheld, then he cannot at this stage raise a plea that it was for the officer concerned to have summoned the record. For the aforesaid reasons, I do not want to accept the plea raised before this Court and conclude that the appellate authorities have validly made the assessment and the consequent liability upon the petitioner. No ground to interfere. Dismissed. 21.1.2011 (MAHESH GROVER) JUDGE dss