CWP No. 1302 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1302 of 2010 Date of decision: 27.01.2010 Batta Public School through its Principal Madhu Bala ...... PETITIONER VERSUS Employees Provident Fund Appellate Tribunal, Connought Place, New Delhi and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Rajesh Punj, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. Through this writ petition, the challenge has been posed to the order dated 31.03.2005 (Annexure P-13) passed by the Assistant Provident Fund Commissioner-respondent No. 2 holding therein that the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short 'the Act') is applicable to the petitioner upholding the coverage of the establishment CWP No. 1302 of 2010 2 under the Act and further directing the petitioner to comply with the provisions of the Act w.e.f. 10.04.2003 and the order dated 24.11.2009 (Annexure P-19) passed by the Employees Provident Fund Appellate Tribunal-respondent No. 1 dismissing the appeal of the petitioner. Counsel for the petitioner submits that on 21.11.2003, the authority under the Act inspected Batta Public School and New Batta Public School. New Batta Public School and Batta Public School are two different units. The authority under the Act has merely relied upon a list prepared on the dictates of the authority under the Act and in active connivance with the Hindi Teacher, namely, Nidhi Gupta, who signed the list as Principal showing that there were 23 employees working in the establishment. He submits that the list so prepared by the authorities and signed by the Hindi Teacher Nidhi Gupta was not an authentic list. A perusal of this list, copy whereof has been placed on record as Annexure P-12, would show that name of Ms. Shallu has been mentioned at two serial numbers once as a Teacher at Sr. No. 3 and once as a Peon at Sr. No. 19. His further contention is that Sushil Kumar at Sr. No. 21 has been shown as a Chowkidar whereas he is an owner of an Atta Chakki and running the same in the name of M/s Kailash Flour Mills, Bishan Nagar, Patiala. He had never been appointed as a Chowkidar in the School. One Shiv Narain has been shown at Sr. No. 22 as Yoga Teacher (part time), whereas he is an Editor of 'Press Ki Takat” Group of Newspapers. His further submission is that at one place the name of one Ms. Simmi Bhatia has been shown at Sr. No. 23 as a Computer Teacher, whereas she is an employee of Technical World and was present in the School for repairing of the computer and imparting technical training to the students interested in the computer as Jashan Singh, Proprietor of Technical World had taken a CWP No. 1302 of 2010 3 contract from the School for a period of 7 months'. In support of this contention that Sushil Kumar, Shiv Narain and Simmi Bhatia were not the Teachers of the School, he relies upon the affidavits of Shiv Narain son of Ramji Dass, Sushil Kumar son of Late Sham Lal, Jashan Singh, Proprietor Technical World and Madhu Bala w/o sh. Madan Lal, alleged affidavits Annexures P-5 to P-8 respectively. He, on this basis, contends that with the deletion of above three names from the list of employees and by keeping the name of Shallu at one serial number, the number of employees working with the School comes down to 19 and, therefore, the establishment would not be covered by the provisions of the Act. His further contention is that Batta Public School is being run by Sh. Ram Dayal Batta whereas Sh. L.D. Batta is running New Batta Public School. New Batta Public School has classes from Nursery up to 4th whereas Batta Public School has classes from 5th to 10th. Both these Schools have separate Teachers, separate gate, separate electricity meter, separate diary and form, separate attendance register, payment register etc. His further contention is that on the day when the authority, under the Act, visited the School, the Manager of the petitioner School Sh. C.P.Batta was admitted at Batra Hospital, New Delhi because of some heart problem. The compete records were with Sh. C.P.Batta, who was custodian of the whole records and the list was prepared in the absence of Sh C.P.Batta, who was the Manager and Principal of the School. Nidhi Gupta had signed the list as Principal of the School whereas she was only a Hindi Teacher. On this basis, he submits that the impugned orders (Annexures P-13 and P-19) deserve to be set aside. I have heard the counsel for the petitioner and have gone through the records of the case. CWP No. 1302 of 2010 4 The authority, under the Payment of Wages Act vide its order dated 31.03.2005, has, in detail, gone through and considered the evidence, which was led by the parties before it. All these submissions, as have been raised by the counsel for the petitioner, were duly considered by him. The findings recorded by the Tribunal are fully justified and in accordance with law. In any case, the contentions raised by the counsel for the petitioner, do not hold water as Annexures P-7 to P-8 cannot be termed as affidavits as the same were not got attested by any competent authority. The photocopies, which have been produced by the counsel for the petitioner in the Court, also do not show the attestation of these documents either by the Oath Commissioner or by the Notary Public or the Magistrate. Merely the contents have been typed in the form of affidavit, which, therefore, cannot be taken into consideration. Apart from these affidavits, nothing has been brought on record to suggest that the names of Shiv Narain, Sushil Kumar and Simmi Bhatia need to be deleted from the list of Teachers employed by the establishment. No evidence was produced by the petitioner before the appropriate authority or the Assistant Provident Fund Commissioner-respondent No. 2 pushing through this claim with regard to the deletion of the names of the persons mentioned above. It has come on record that when the list was prepared and signed by Ms. Nidhi Gupta as Principal of the School, no undue demand was made by the squad as also it has come on record that there was no mala-fide intention in their efforts to collect the information. The best evidence, which the petitioner School could have produced before the authority, were Shiv Narain, Sushil Kumar and Simmi Bhatia but none of them have come present before the authority to state, what is now being CWP No. 1302 of 2010 5 tried to be projected by the petitioner by placing on record the documents, Annexures P-5 to P-8, which are without any date nor they have been attested by any authorities. Even if the contention of the counsel for the petitioner is accepted that the name of one Shallu has been mentioned twice in the list and one Shiv Narain was the Chief Editor of “Press Ki Takat” and Sh. Sushil Kumar was the owner of a Flour Mill, still the number of Teachers would be 20. The statement of Jashan Singh, Annexure P-7, cannot be taken to be correct because it has not come on record that there was any contract between the School and the Technical World, as has been asserted by Jashan Singh. No contract has been placed on record to support this contention. It would not be out of way to mention here that the contention of the counsel for the petitioner with regard to the fact that Nidhi Gupta was not the Principal of the School, cannot be accepted as it has nowhere come on the records as to who was the Principal of the School at the relevant time when the squad visited the School for inspection. No document has been placed on record nor has it been pleaded as to who was the Principal and was not present at the spot when the inspection was conducted by the authority under the Act. As regards the contention of the counsel for the petitioner that Batta Public School and New Batta Public School were two different establishments, the same cannot be accepted in the light of the fact that a finding has been returned by the authorities under the Act that even if it is accepted that Batta Public School was being run by Sh. Ram Dayal Batta and Sh. L.D.Batta was running the New Batta Public School, the Management of both the Schools were related as brothers. Sh. C.P.Batta, Honorary Chairman, was supervising both the Schools, which leaves no manner of doubt that the Management of both the Schools was a common CWP No. 1302 of 2010 6 Management. Both the Schools are situated in one building. The entry gate was common. Apart from this, electricity charges were being incurred from the account of Batta Public School and no electricity charges have been reflected in the account of New Batta Public School. New Batta Public School has classes from Nursery up to 4th class whereas Batta Public School has classes from 5th to 10th and is affiliated to the Punjab School Education Board. The students passing out from New Batta Public School are admitted in Batta Public School for pursuing further studies. This shows the managerial, functional and financial integrity of two establishments as also that there was inter-dependence between two establishments. As such both the establishments are one for all intents and purposes, therefore, the effort being made by the petitioner to wriggle out by hook or by crook from the ambit of the provisions of the Act cannot succeed. The order dated 31.03.2005 (Annexure P-13) passed by respondent No. 2 and the order dated 24.11.2009 (Annexure P-19) passed by respondent No. 1 are in accordance with law as the same are based on facts and due appreciation of the evidence led by the parties before them and thus, call for no interference by this Court in exercise of its writ jurisdiction. Finding no merit in the present petition, the same stands dismissed. Before parting with the present petition, a word of caution needs to be given to the petitioner herein. An effort has been made by the petitioner to mislead this Court by projecting Annexures P-5 to P-8 as Affidavits and the pleadings also are to this effect. A perusal of these documents would show that none of these documents were got attested in CWP No. 1302 of 2010 7 accordance with law. The photocopies produced by the counsel for the petitioner in Court during the hearing of the case also do not indicate them to be attested. In the zeal to challenge the impugned orders and to show them as illegal, an effort has been made by the petitioner to over-reach this Court. The conduct of the petitioner is wholly uncalled for and deserves to be depreciated. This Court refrains to initiate any further action except to warn the petitioner to be careful in future. ( AUGUSTINE GEORGE MASIH ) JUDGE January 27, 2010 pj