IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12826 of 2010 R.P.S. RESIDENTIAL PUBLIC SCHOOL, NEW BAILEY ROAD, PATNA-801503 THROUGH ITS SECRETARY SRI SAKALDEO SINGH ……………………………PETITIONER VERSUS 1. THE REGIONAL PROVIDENT FUND COMMISSIONER, BIHAR AT PATNA 2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, BIHAR AT PATNA 3. SRI BIMAL KISHORE JHA, S/O SRI SAHDEO JHA, R/O FLAT NO.202, DEOKI NANDAN APARTMENT, MAGISTRATE COLONY, P.O.- ASHIYANA NAGAR, P.S.- RAJIV NAGAR, PATNA-800015 4. THE UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF LABOUR & EMPLOYMENT, NEW DELHI. ………..RESPONDENTS. For the petitioner : M/s D. Choubey and Pramod Pandey, Advocates. For the respondents : Mr. R.S. Pradhan, Sr. Advocate. ----------- 03/ 09.11.2010 Heard learned counsel for the petitioner and learned counsel for the Regional Provident Fund Commissioner and Assistant Provident Fund Commissioner. 2. The petitioner is a Residential Public School of Patna and it is aggrieved by order dated 25.05.2010 (Annexure-14) by which the Employees Provident Fund Appellate Tribunal rejected its appeal bearing A.T.A. No.420(3) 2007 and is also aggrieved by order dated 26.02.2007 (Annexure-9) passed by the Assistant Provident Fund Commissioner allowing the claim of respondent no.3 who was a teacher of the petitioner school. 3. The claim of the petitioner is that the petitioner appointed respondent no.3 as teacher of the school on 01.12.1999 and on the same date notice was issued to him for - 2 - production of documents. It is also claimed that respondent no.3 did not produce any document till 2002 and only on 01.04.2002 he approached the school with the required papers and thereafter he was duly appointed in April 2002 and in May 2002 (Annexure-2) Form-5 of the Provident Fund Scheme was sent by the school to the respondents, whereafter respondent no.3 duly worked in the school till his service was finally terminated in January, 2005. On 22.08.2005 respondent no.3 withdrew all the provident fund amount. 4. Learned counsel for the petitioner further submits that all of a sudden on 10.08.2006 the petitioner received show-cause notice from the respondents with regard to initiation of a proceeding against it on the complaint of respondent no.3, whereafter the petitioner filed its reply on 31.08.2006 (Annexure-3) but in spite of that another notice was received on 26.10.2006 (Annexure-4) also. Learned counsel for the petitioner submits that thereafter the petitioner sent letters dated 10.11.2006 and 11.12.2006 before the Assistant Provident Fund Commissioner for providing copies of the documents submitted by respondent no.3, whereas on 11.01.2007 (Annexure-7) an application was filed for accepting its contention and to provide opportunity to substantiate the same. Immediately thereafter on 12.01.2007 (Annexure-8) another application was filed by the petitioner before the authority concerned to supply copy of the report and the materials given to inspect the same for meeting and - 3 - explaining the same. 5. It transpires that finally order dated 26.02.2007 (Annexure-9) was passed by the Assistant Provident Fund Commissioner allowing the claim of respondent no.3. The petitioner challenged the said order before the Employees Provident Fund Appellate Tribunal, New Delhi vide A.T.A. No.420(3) 2007 but the said appeal was rejected by the said Tribunal vide its order dated 25.05.2010 (Annexure-14). 6. Learned counsel for the petitioner challenges the said orders of the authorities concerned stating that the authorities concerned had passed their orders only on the basis of appointment letter dated 29.11.1999 issued by the petitioner in favour of respondent no.3 but failed to appreciate that the question with regard to Employees Provident Fund was not concerned with the letter of appointment, rather it was concerned with the payment of salary and deduction of Provident Fund therefrom but there was no material at all to show that any salary was paid by the petitioner to respondent no.3 from December, 1999 to March 2002 nor there was any material to show that any provident fund was deducted from his salary. 7. Learned counsel for the petitioner further avers that it will be apparent from the records of the case that the number of Employees Provident Fund Account was given in the year 2002 and hence respondent no.3 was entitled to Employees Provident Fund only after that date. Learned - 4 - counsel for the petitioner refers to Clause 26A (2) of the Employees‟ Provident Funds Scheme which provided that every member/employee shall contribute to the said fund, whereas Clause 36 provides the duty of the employer with respect to the submission of Employees‟ Provident Fund Form but the main clause with respect to the duty of the Employees‟ Provident Fund Authority is Clause 37 of the Scheme, namely the allotment of account number which also showed that salary was paid from April 2002. 8. After considering the arguments raised by learned counsel for the parties and after perusing the materials on record, it is quite apparent that Clause 26A (2) of the Employees‟ Provident Funds Scheme referred by learned counsel for the petitioner is with respect to retention of membership and the said provision is not in dispute. Similarly Clause 36 of the aforesaid Scheme is with regard to the duty of the employer, namely the petitioner in which it has been provided that every employer shall send to the Commissioner within fifteen days of the commencement of this Scheme, a consolidated return in such form as the Commissioner may specify, of the employees required or entitled to become members of the Fund showing the basic wage, etc. So far Clause 37 of the aforesaid Scheme is concerned, it is merely with respect to the allotment of account numbers by the Provident Fund Authorities. In the instant case the said provisions are not in dispute as the authorities were to allot - 5 - account numbers only when the employer sends the return with regard to any employee to the authorities under Clause 36 of the Scheme. 9. The main question to be decided in such cases of Provident Fund concerns with the payment of salary and not merely the appointment letter. In the instant case the Assistant Provident Fund Commissioner while passing his impugned order 26.02.2007(Annexure-9) has found that it is an admitted fact that appointment letter was issued by the petitioner to respondent no.3 on 29.11.1999. Furthermore respondent no.3 had also furnished his joining letter dated 01.12.1999 bearing the signature of the Principal of the petitioner college with remarks “Allowed to joint on 01.12.1999 F.N”. It is supported by notice no.200 dated 01.12.1999 of the School directing the 11 newly appointed teachers, including respondent no.3 to submit documents in connection with appointment. In the said circumstances, the said authority found that respondent no.3 was appointed as Trained Graduate Teacher in the Department of Biology of the school, which is fully proved also by photographs of Std. VII Section „C‟ for Sessions 2000-2001 wherein Sri B.K. Jha (respondent no.3) is shown seated along with the Vice-Principal and the students. 10. So far the question of payment of salary is concerned, the Enforcement Officer was directed to visit the establishment of the petitioner and verify the records to enquire into the genuineness of the claim of respondent no.3, but the - 6 - establishment of the petitioner failed to produce the relevant records for the purpose of enquiry and subsequently a show- cause notice was issued on 10.08.2006 in reply of which the petitioner only stated that respondent no.3 joined and received salary with effect from April 2002, but no record of the school for the relevant period was produced. 11. The said authority very carefully considered the matter and found that it was fit and proper to conduct enquiry under Clause 7A of the Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as „the Act‟ for the sake of brevity) to ascertain as to whether respondent no.3 was in employment from December, 1999 to March 2002 and to determine the statutory contribution due, if any, in respect of respondent no.3 and hence notice under Clause 7A of the Act was sent on 26.10.2006 with a direction to produce the records mentioned in the said notice on the fixed date i.e. 10.11.2006. Although adjournments were given but the petitioner school failed to produce the records and merely submitted that Attendance Registers for only last two years were kept by the school. This contention was not acceptable and was rightly rejected. In the said circumstances, due to non-cooperation of the petitioner in providing the relevant documents specially in this case where services of respondent no.3 were already terminated, he was unable to bring on record the documents with regard to payment of salary to him during the period from December, - 7 - 1999 to March 2002. 12. Thus keeping in view the facts and circumstances of the case and specific provisions of law, the Provident Fund due in respect of respondent no.3 was determined by the authorities concerned without the employees‟ share and taking the wages of Rs.5050.00 per month which was paid to the complainant-respondent no.3 by the school authorities. Accordingly, the said authority determined that the petitioner‟s establishment was liable to pay the amount of Rs.19, 292.00 as dues for the notice period, namely December, 1999 to March 2002 as per the details laid out in the table provided in the said order. 13. The said order was rightly affirmed in appeal by the Appellate Tribunal vide impugned order dated 25.05.2010 (Annexure-14). This court does not find any illegality in the impugned order of the authorities concerned and accordingly, this writ petition is dismissed. Harish (S.N. Hussain, J.)