wp2244.11.odt 1/9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.2244/2011 Hotel Lahori Bar & Restaurant -vs- Regional Provident Fund Commissioner and another ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri S. S. Vodetel, learned counsel for the petitioner. Dr. R.S.Sundaram, learned counsel for the respondents. CORAM : R. M. SAVANT, J. DATED : 08/07/2011. The above petition filed under Article 227 of the Constitution of India takes exception to the order dated 09/03/2011 passed by the Employees Provident Fund Appellate Tribunal, by which order Appeal No.ATA 21 (9)/2010 filed by the petitioner came to be rejected. The controversy in the above petition as regards the coverage of the petitioner under the Employees’ Provident Fund Act and Miscellaneous Provisions Act, 1952. The petitioner is an establishment covered under the Employees’ Provident Fund and Miscellaneous Provision Act, 1952 (hereinafter referred to as the “Act”) having Code No.MH/65221 allotted to it. It was reported that the petitioner was in default in wp2244.11.odt 2/9 remittance of dues in respect of the eligible employees and also as regards the date of coverage and the assessment of dues towards the provident fund, family pension fund and insurance fund for the period from the date of coverage to 2008/09. Accordingly, a summons under Section 7-A of the Act was issued to the petitioner to appear before the Assistant Provident Fund Commissioner with supporting documents, records, etc. From the record, it is disclosed that the said proceedings were adjourned from time to time. The petitioner was put to notice that if it failed to attend the enquiry/represent its case, the issue would be decided considering the material available on record. The case was accordingly taken up for final hearing by the Assistant Provident Fund Commissioner on 26/08/2009. It is required to be noted that prior thereto, the Enforcement Officer of the Department has submitted an Inspection Report dated 10/07/2009, the same was made part of the enquiry. Despite ample opportunities, in fact, at the request of the petitioner, a letter dated 11/08/2009 came to be issued to the petitioner with a direction to produce all required records on the next date of hearing, but the said letter addressed by the Authorities to the petitioner came back with the remark ‘refused’ wp2244.11.odt 3/9 and no one attended the enquiry on behalf of the petitioner which was fixed on 26/08/2009. Hence, despite ample opportunities, accorded to the petitioner, the petitioner did not produce any record. The Assistant Provident Fund Commissioner, therefore in exercise of the powers conferred on him under Section 7-A of the said Act, issued a letter to the Deputy Director of Employees State Insurance Corporation, Nagpur on 17/04/2009 inter alia asking the said office for the record of the petitioner establishment and to submit it to their office, which were the following documents, copies of code draft, copy of half yearly returns, in response to the said letter dated 17/04/2009, the Employees State Insurance Corporation office has forwarded Memorandum No. 23-2434-112, showing the number of employees employed by the petitioner as 20 on 01/02/1989. It is on the basis of the said material that the Enforcement Officer submitted his report dated 10/07/2009 with the recommendation that the date of coverage of establishment of the petitioner may be preponed from 29/12/2005 to 01/02/1989 as the establishment is covered under the ESIC Act with effect from 01/02/1989 for 20 employees and also recommended to assess the dues at Rs.16,82,028/- considering the wp2244.11.odt 4/9 payments made by the establishment for the period 01/02/1989 to 2008-09. The Assistant Provident Fund Commissioner also took into consideration the attendance/wages register seized by the Enforcement Officer from the petitioner from which it is disclosed that the petitioner had covered 5 to 8 regular employees whereas it has been employing 29-32 employees during the period 29/12/2005 to 01/02/2006, which fact according to the Assistant Provident Fund Commissioner confirms the fact that more than 20 employees were employed by the petitioner from the given date. Since the petitioner did not controvert or rebut the case as made out by the Enforcement Officer in his report, which report was served upon the petitioner, the Assistant Provident Fund Commissioner placing reliance on the Enforcement Officer’s report dated 10/07/2009, preponed the date of coverage of the petitioner from 29/12/2005 to 01/02/1989 and directed the petitioner to remit provident fund and allied dues to the extent of Rs.16,82,028/- for the period 02/1989 to 03/2009 and accordingly disposed of the proceedings under Section 7-A of the said Act. Aggrieved by the said order dated 18th September, 2009, the petitioner filed an appeal before the Employees Provident Fund Appellate Tribunal. In the said appeal, the petitioner sought to urge that no wp2244.11.odt 5/9 opportunity was given to it to place its case. The Appellate Tribunal recorded that in spite of notice and repeated adjournments, the petitioner, who was the appellant had failed to produce the relevant material before the Provident Fund Authority and thereby had failed to cooperate with the Authorities during the 7-A proceedings and, therefore, the Tribunal was of the view that the said submission could not be entertained and, therefore, there was no breach of the principles of natural justice. The Appellate Tribunal, therefore, by the impugned order dated 09/03/2011 dismissed the said appeal. The learned counsel for the petitioner sought to contend that even though the petitioner might have not produced the material or has failed to comply with the directions of the Regional Provident Fund Commissioner, the same does not absolve the Regional Provident Fund Commissioner, who is a statutory Authority under the said Act and who is vested with the powers to collect the relevant evidence from doing so. The learned counsel to buttress the said submission, sought to rely upon the judgment of the Apex Court reported in (1990) 1 Supreme Court Cases 68 in the matter of Food Corporation of India vs. Provident Fund Commissioner and others. The wp2244.11.odt 6/9 learned counsel would then contend that the Authority has proceeded on the basis of inferences without determining as to in respect of which employees the remittances were due. It is the submission of the learned counsel for the petitioner that the Authorities were bound to identify the employees in question in respect of whom the amounts were due. In support of the said submission, the learned counsel for the petitioner relied upon the judgment of the Apex Court reported in (2008) 5 Supreme Court Cases 756 in the matter of Himachal Pradesh State Forest Corporation vs. Regional Provident Fund Commissioner. The learned counsel lastly contended that the reliance placed by the Appellate Tribunal on the judgment reported in (2000) 9 Supreme Court Cases 540 in the matter of Ramla Sahkari Chini Mills Ltd. vs. Employees’ Provident Fund Appellate Tribunal and Others was misplaced, as the directions, on which the Tribunal sought to rely, were issued in the facts of the said case and cannot be said to be a general proposition of law that has been laid down by the Apex Court. Per contra Shri Sundaram, learned counsel appearing for the authorities supported the order passed under Section 7-A of the said Act as well as the Appellate order. The learned counsel contended that in wp2244.11.odt 7/9 the absence of any material being produced by the petitioner, the Provident Fund Authorities have relied upon the material which has been procured by them and have accordingly concluded as regards the preponement of the application of the Act and the remittances due from the petitioner. Having heard the learned counsel for the parties, in my view, the petition is bereft of any merit. As the order passed under Section 7-A of the said Act ex facie disclosed that in spite of the notice dated 11/08/2009, the petitioner has refused to participate in the proceedings and in fact the said notice was returned back with the remark ‘refused’. Not only this, but earlier also in spite of the enquiry under Section 7-A of the said Act being adjourned from time to time, the petitioner did not remain present and did not produce the relevant material. In the said circumstances, the Assistant Provident Fund Commissioner had sought to collect the material from the Employees State Insurance Corporation by addressing a letter dated 17/04/2009 to which a communication was received from the ESIC showing that on 01/02/1989 the number of employees at the petitioner to be 20. Thereafter the Authority on the basis of the material in the form of attendance/wages wp2244.11.odt 8/9 registers seized by the Enforcement Officer from the petitioner came to a conclusion that though coverage was shown only of 5 to 8 regular employees, in fact, there were employees in the range of 29/32 employed by the petitioner during 29/12/2005 and 01/12/2006, which confirmed the employment of more than 20 employees. Therefore, it is not a case wherein the Authority exercising powers under Section 7-A of the said Act has not proceeded in terms of the powers vested in it. In the absence of the material produced by the petitioner, though called upon to do so, the Authority perforce had to determine the remittances due from the petitioner on the basis of such material that was made available to it. The petitioner having not rebutted the said material or questioned the said material, though opportunities were given to it, now cannot call in question, the said material. In my view, therefore, the reliance placed by the learned counsel for the petitioner on the judgments of the Apex Court supra are misplaced. The authority under Section 7-A of the said Act has recorded findings of fact based on the available material before it, which findings have been confirmed by the Appellate Tribunal. Ultimately, the legality and validity of the said orders would also have to be considered on the touchstone of the fact that wp2244.11.odt 9/9 Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 is a social welfare legislation and the benefit ultimately goes to the employees. Having considered the order passed under Section 7-A of the said Act dated 18/09/2009 and the order of the Appellate Tribunal dated 09/03/2011, in my view, they do not call for any interdiction at the hands of this Court in its writ jurisdiction under Article 227 of the Constitution of India. The writ petition is accordingly dismissed. JUDGE KHUNTE