W.P.No.66/2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.66 OF 2011 City & Industrial Development Corporation, Aurangabad Through its Administrator, “Udyog Bhavan”, CIDCO, Aurangabad ..Petitioner Versus 1. Union of India Through its Secretary Labour and Industries Department, New Delhi and ors. 2. The Officer Incharge & Assistant Provident Fund Commissioner, Employees Provident Fund Organization Sub Regional Office, Plot No.2, Town Centre, Commercial Area, CIDCO, Aurangabad 3. The Aurangabad Majdoor Union (C.I.T.U.), “CITU Bhavan”, Ajabnagar, Aurangabad through its General Secretary ..Respondents Mr A.S.Bajaj, Advocate for petitioner Mr K.B.Choudhari, Advocate for respondents 1 and 2 Mr S.S.Kulkarni, Advocate for respondent No.3, absent CORAM : K.U. CHANDIWAL, J. DATE : 23rd November 2011 ORAL JUDGMENT 1. Heard. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, heard finally at the stage of admission. W.P.No.66/2011 2 2. The City and Industrial Development Corporation (CIDCO) questions propriety of the order passed by the Employees Provident Fund Appellate Tribunal in Appeal No.ATA/413(9)/2007 dated 21.9.2010 and also the order passed by Officer in charge Assistant Provident Fund Commissioner, S.R.O. dated 6.6.2006. 3. Mr Bajaj submits that the Presiding Officer sitting in appeal while recording the judgment dated 21.9.2010 (Exh.D) did not consider submissions advanced and even the factual matrix of the matter in a casual manner order is passed to the detriment of CIDCO, which is a Government Company registered under the provisions of the Companies Act. The learned Counsel submits that the CIDCO is a statutory body as a New Town Development Authority and Special Planning Authority under Maharashtra Regional Town Planning Act with a view to plan development of the township to sub serve object of the said Act. 4. The learned Counsel has raised the question – (a) Whether the proceedings initiated under Section 7A of Employees Provident Fund and Miscellaneous Provisions Act, 1952 are bad on account of lack of jurisdiction and authority ? and (b) The period from which the demand is made extends from 1980 to 1995, while the provisions of the said Act came to be applicable to the workers of cleaning and sweeping with effect from 1.4.2001. Consequently, there could not be retrospective effect for W.P.No.66/2011 3 the period from 1980 to 2001 and such actions of respondent authorities are illegal. 5. The learned Counsel, by reading the order dated 6.6.2006 of the respondent No.2 indicated that it is manifestly arbitrary, unjust and patently violative on account of non application of mind. 6. Mr Choudhari, learned Counsel for the respondents submits that basic theme of the legislation in the implementation of the Employees Provident Fund Act needs to be seen. It is a beneficial legislation, to ensure benefits to the employees, who are rendered at loss for their requisite benefits. According to him, in spite of several reminders sent to the Officers of the CIDCO to supply list of the contractors, who had carried the activities of cleaning and sweeping in the area of CIDCO, at the material time, it was not complied and consequently, under a warrant the Administrator of the CIDCO was required to attend the office. Since no details were given, the Officer has rightly assessed the levying penalty against CIDCO, being principal employer. 7. In the order under challenge, (Exh.A, at page 15), while exercising powers under Section 7A of the said Act the Officer determined the sum of Rs.6,72,66,737/- (Rs.Six Crores Seventy-two lakh Sixty-six thousand seven hundred thirty seven only), the assessment/calculation carried by W.P.No.66/2011 4 him was straight way applying the scale of 30% as a labour component under the head of the account, E.P.F. Contributions, E.P.F. Administrative charges and E.D.L.I. Contributions Insurance/Adm. Account No.XXII. For arriving at such calculations, the learned Officer, Assistant Provident Fund Commissioner did not indicate what prompted him to do so. He did not venture rules or even the contemplated procedure in respect of workers of cleaning and sweeping in the area of CIDCO. 8. The head was given effect to, under the banner of “Building and Construction” and charging, accordingly, violates very statute and the petitioner was not having such competency. That apart, the factual aspect was not considered by the said authority, when the CIDCO was in its very pre-emptive stage at the material time i.e. 1980 to December 1985 and consequently, could not carry the activity of sweeping or cleaning. Even if some Contractor was appointed, the record could be available with the said Contractor. However, CIDCO could not inform the name of the said Contractor for such purposes, it is illogical to hold CIDCO in breach of Section 7A of the said Act and to saddle huge penalty as is indicated hereinabove. There were no details of labours before Respondent No.2, its squad too, did not get expected details or records. The respondent No.2 discovered a novel short cut referred above, to hold liability of CIDCO, without identifying the beneficiaries of such liability. W.P.No.66/2011 5 9. This Court, in Writ Petition No.70/2011 in the matter of Cable Corporation of India Ltd. Vs. Union of India and Anr., decided on 7th February 2011, has observed in paragraph 11 that, “There is enough material to hold that the Presiding Officer passes laconic, virtually unreasoned orders which exhibit complete non application of mind, as a routine. The exercise appears to dispose of pending appeals some way or the other. Even if the conclusions drawn are perfunctory and not based on any materials so also the record produced, invariably every order of the Regional Provident Fund Commissioner is upheld by the Appellate Tribunal. Consequently, the matters are carried to the higher courts in writ jurisdiction. The result is either a remand or quashing of the order of the appellate authority. This entails in the object of a beneficial and social Legislation being defeated. Even if it is assumed that an interpretation which promotes this object and purpose is to be placed on the relevant provisions, when can this principle be applied, depends on several factors. If there is absolutely no dispute on facts, then, the appellate tribunal must perform its duty. It must realise that its approach also results in hardship and tremendous financial problems and difficulties for the employees who are already suffering on account of denial of salaries and wages so also their legitimate provident fund dues and lack of any opportunity to work.” W.P.No.66/2011 6 These aspects are unfortunately reflected in questioned order. With identical zeal and zest, contrary to record and on individual whims of assessment in an uncalled direction. 10. The order of the appellate authority, as stated earlier smacks of merits, as it has not considered the defence of the writ petitioner, even if the writ petitioner is branded as a principal employer. However, for that purpose unbridled rights are not vested in authorities. The order of levying 30% as a labour component is a novel idea to avoid legal system which is without any logical calculations. This act of even the appellate authority certainly calls for interference. 11. Taking survey of the facts, both the orders questioned, being contrary to record and even law calls for interference. The order dated 20.9.2010 passed by the Employees Provident Fund Appellate Tribunal in Appeal No.ATA/413(9)/2007 and also the order passed by Officer in charge Assistant Provident Fund Commissioner, S.R.O. dated 6.6.2006 are set aside. Writ Petition is allowed. Rule made absolute. No order as to costs. ( K.U. CHANDIWAL, J. ) (vvr/66.11wp)