C.W.P. No.5563 of 1991 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.5563 of 1991 Date of Decision. 05.09.2011 M/s Indo Lowen Brau Breweries Ltd. through Deputy Personal Manager, 13/1, Mathura Road, Faridabad .....Petitioner Versus The Central Board of Trustee, through Regional Provident Fund Commissioner, Employees Provident Fund, Sector 16-A, Faridabad and others .....Respondents Present: Mr. Athar Ahmed, Advocate for Mr. Ashok Aggarwal, Senior Advocate for the petitioner. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. 1. The petition is against the order passed by the Regional Provident Fund Commissioner directing the employer's contribution of provident fund. The amount demanded was in respect of the contributions payable for the 3rd respondent, Mr. M.M. Mehta, who had entered the services of the petitioner company as Production Manager since 05.04.1983. The terms of employment had indicated that he was put on a consolidated pay of Rs.3250/-. As a defence to the action for recovery by the Providing Fund Commissioner, the petitioner had stated that the 3rd respondent was himself an "excluded employee" as per the Provident Fund Scheme, which had been approved and certified by the Authorities under the Act. The exemption was in respect of an C.W.P. No.5563 of 1991 -2- employee, whose salary was more than Rs.2500/- per month. In the enquiry held before the Regional Commissioner, the 3rd respondent had stated on 27.06.1988 that he had already withdrawn his full provident fund soon after retiring from the earlier company M/s Coca Cola and that he was to be treated as an "excluded employee." With admissions coming from the 3rd respondent about the fact that he had already received the provident fund accumulations after he left the previous employment and he also admitted to his status as an excluded employee, the proceedings ought to have gotten terminated but the Authority has relied on the details given in Form No.11, which had been produced before the Commissioner, which showed that he had not withdrawn the amount of provident fund/family pension fund. The Form also contained a reference that he had never been a member of any provident fund or family pension fund. The Commissioner went on to hold that since Form No.11 contained a reference to the fact that he had been previously employed with Coca Cola Export Corporation and that he had not withdrawn the amount of the provident fund and that would make the petitioner company liable. This, in my view, is wholly an untenable reasoning. If the employee himself has admitted to his status as an 'excluded employee' and he had also admitted before the Regional Commissioner that he had withdrawn the provident fund after the termination of employment from the previous employer, nothing further remained for adjudication. 2. The assessment made by the 1st respondent directing the amount of Rs.23,744.85 as payable is clearly untenable. The impugned order is quashed and the petition is allowed. It bears out from the C.W.P. No.5563 of 1991 -3- docket order passed by the Court that the recovery was stayed subject to deposit of the amount in the Nationalized Bank in the form of FDR hypothecated to the Commissioner of Provident Fund. The hypothecation shall be discharged and the petitioner will be entitled to liquidate the said deposit, if not already done. (K. KANNAN) JUDGE September 05, 2011 Pankaj*