IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 10099 of 1999 Between: Nellore Thermal Station, A.P. Poweer Generation Corporation Ltd., Kovvur, Nellore District. ..... PETITIONER AND 1 The Presiding Officer, E.P.F. Appellate Tribunal, New Delhi, vth Floor, 60-Skylark Building, Nehru Place, New Delhi-9. R1 disd.for default as per Court Order dt.7.3.03as againstR1 2 The Asst.Provident Fund Commissioner, Sub Regional Office, Cuddapah, A.P. 3 The President, A.P. Contract Labour Karmik Sangh, Nellore Thermal Station, Kovvur, Nellore District. 4 The Regional Provident Fund Commissioner, Guntur. R4 impleaded as per Court order in WP 27524/01 dt.2.11.01 .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ of Certiorari calling for the records relating tothe order dt.28.8.1998 in A.T.A.1(16)/98 on the file of the Employees Provident Fund Appellate Tribunal, New Delhi and quash the same and pass. Counsel for the Petitioner:MR.K.CHIDAMBARAM Counsel for the Respondent No.: MR.R.N.REDDY (SC FOR EMPLOY'S PF ORG.) The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 10099 of 1999 ORDER: The Assistant Commissioner of Provident Fund, vide proceedings dated 22.08.1997, issued orders demanding payment of Rs. 3,95,640/- towards Provident Fund, Pension Fund, Insurance Fund etc. from April 1982 to March 1997, as per the EPF and MP. Act from the petitioner holding that it was the primary obligation of the Principal Employer to remit the contribution. Aggrieved by the said order, the third respondent Union requested the second respondent to reconsider the assessment. On 28.10.1997, the Unions filed a statement showing the dues payable by the management. Thereafter, the matter was re-opened under Section 7-B of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952. Summons were issued to the petitioner on 06.11.1997, calling upon them to attend the meeting on 17.04.1998 wherein, while disputing the rates mentioned by the third respondent Union, the petitioner also contended that the contractors were necessary parties to decide the issues involved. The second respondent assessed the liability for the period from February 1984 to April 1994. In the meanwhile the petitioner, vide memo dated 22.03.1998, absorbed 80 contract labourers who were working against 33 abolished categories of contract labour posts. On 21.04.1998, the Assistant Commissioner issued orders reviewing the earlier assessment, fixed the liability of the petitioner at enhanced rates and determined their liability as Rs.5,48,914/-. Aggrieved thereby, the petitioner preferred the appeal by depositing 75% of the assessed amount and the Tribunal, by order dated 28.08.1998, dismissed the appeal. Aggrieved thereby, the present writ petition. The 2nd respondent, by his order dated 22.04.1998, reviewed the earlier order dated 22.08.1997. In the order dated 22.04.1998, the second respondent noted that it had been decided with the concurrence of both parties that the records should be made available at the office of the Enforcement Officer, Nellore which shall be verified by the management in the presence of the Enforcement Officer, that on 17.04.1998 the statement prepared by the Enforcement Officer, in consultation with the Union, was examined and the management had informed that the rates at which the Union had calculated the provident fund dues were not on actual basis but on the basis of Irrigation and CAD Department rates which might not have been the rates approved by the petitioner in respect of various contractors. The Assistant Commissioner observed that the petitioner had failed to produce all the contract agreements for the last several years and, if they had any such agreement, it was their duty to prove that the rates were different from the one submitted by the Union, and that their contention could not be agreed to at this stage. The Assistant Commissioner noted that both the Union and the management had pointed out that the dues were payable only from 1984-85 as the management had already paid the dues upto February, 1984, and accounts slips were issued upto 1983-84, that there was no dispute for the period from 1982-83 till 1983-84 and that dues had to be assessed from March, 1984 onwards. The Enforcement Officer was directed to submit the statement prepared by him showing the dues payable from 1984-1985 to 1995-1996. He, accordingly, prepared the statement and submitted it to the Assistant Commissioner. The Assistant Commissioner, in exercise of the powers conferred on him under Section 7-B of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, determined that a sum of Rs.5,48,914/- was due from the petitioner. In appeal, the appellate authority noted that, under sub-para (3) of the para 30 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, the Principal Employer was responsible for collecting the provident fund contributions in respect of the employees, employed by contractors, and to remit it to the fund, that the Principal Employer could not disown his primary responsibility and shift the onus on to the contractors, in so far as employees employed through contractors were concerned, that the Principal Employer could not escape liability or avoid implementing the statutory provisions with regards contract employees engaged by him on the ground that the records were maintained by the contractors and, therefore, the responsibility lay on the Principal employer to comply with the statutory obligations including payment of contributions in respect of the employees employed through contractors were concerned. The appellate authority agreed with the Assistant Commissioner that the presence of the contractors was not necessary, that under Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970 the Principal Employer was required to nominate a representative duly authorizing him to be present at the time when wages were disbursed by the Contractor, that it was the duty of such a representative to certify the amounts paid as wages and, as such, the appellant, as the Principal Employer, should have known the actual rate of wages on which the payments were made to the workers and that there was no substance in the appeal. The appeal was, accordingly, dismissed. Sri K. Chidambaram, learned Standing Counsel for the petitioner, would contend before this Court that the scope of review under Section 7-B of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 is extremely limited and is akin to review proceedings under Order 47 Rule 1 C.P.C. Learned Counsel would state that, in the absence of any error apparent on the face of the record, it was not open to the authorities under the Act to suo motu review their earlier order. Learned Counsel would further contend that, in the review order, a period, different from the one for which the original order was passed, was taken into consideration in determining the petitioner’s liability. On a query from this Court, Sri K. Chidambaram, learned Standing Counsel would fairly state that quantum of amount determined by the Assistant Commissioner of Labour was not in dispute since the petitioner herein had failed to produce any evidence in support of their contention that the rates relied upon by the Union were different from the actual rates. The only questions which, therefore, necessitate examination is whether the Assistant Commissioner could have, in review proceedings, determined the provident fund liability for a period different from the one for which the original order was passed, whether the scope of review under the Provident Fund Act is akin to review proceedings under Order 47 Rule 1 C.P.C. and whether the order under review suffered from an error apparent on the face of the record. As is evident from the order of the Assistant Commissioner of Labour, while the original assessment was made from 1982 onwards, both the petitioner and the Union had pointed out that the petitioner had paid Provident Fund upto the year 1983-84 and that assessment was required to be made from 1984-85 til 1995-96. It is in such circumstances that the period, for which the Provident Fund dues were assessed, was not in parimateria with the period stated in the order under review. The period, for which the Provident Fund dues were assessed to be paid, has in fact been reduced which has consequently resulted in reduction in their liability in so far as the petitioner is concerned. Section 7-B of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 reads thus: 7B. Review of orders passed 7under Section 7A:- 1. Any person aggrieved by an order made under sub-section (1) of Sec. 7A, but from which no appeal has been preferred under this Act, and who, from the discovery of new and important matter, or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of such order may apply for a review of that order the officer who passed the order: Provided that such officer may also on his own motion review his order if he is satisfied that it is necessary so to do on any such ground. 2. Every application for review under sub-section (1) shall be filed in such form and manner and within such time as may be specified in the Scheme. 3. Where it appears to the officer receiving an application for review that there is no sufficient ground for a review, he shall reject the application. 4. Where the officer is of opinion that the application for review should be granted, he shall grant the same: Provided that- a. no such application shall be granted without previous notice to all the parties before him to enable them to appear and be heard in support of the order in respect of which a review is applied for, and b. no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be produced by him when the order was made, without proof of such allegation. While clause (1) of Section 7B is analogous to Order 47 Rule 1 of the Code of Civil Procedure, under the proviso thereunder an officer may also, on his own motion, review his order if he is satisfied that it is necessary to do so. It cannot be lost sight of that the Provident Fund Act is a beneficial legislation and, as the petitioner herein had failed to remit the provident fund dues of certain workers engaged by the contractor, I am not impressed by this hyper- technical plea of the limited scope of review proceedings as it is evident that the petitioner herein is only seeking to avoid payment of the provident fund dues which it is liable to pay despite their not even having disputed the quantum of liability as determined by the authorities concerned. The petitioner herein is seeking a writ of certiorari to quash the order of the appellate authority dated 28.08.1998. In certiorari proceedings, under Article 226 of the Constitution of India, this Court would neither sit in appeal over the conclusions, nor would it substitute its views for the one arrived at by the statutory authorities.. It is not in dispute that, under para 30(3) of the E.P.F. Scheme 1952, it is the responsibility of the Principal Employer to pay the provident fund contributions in respect of persons directly employed by him, and also in respect of the employees employed through a contractor. It is not in dispute that the petitioner herein is the Principal Employer and the burden is on it to ensure payment of the Provident Fund dues of persons employed by its contractors. Since the primary liability is that of the petitioner, and as the amounts determined by the respondent authorities of Rs.5,48,914/- has not been disputed before this Court by Sri K. Chidambaram, learned Standing Counsel for the petitioner, I am not inclined to take a hypertechnical view of the scope of Section 7-B of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, to deny the contract labour the provident fund dues liable to be paid by the petitioner as the principal employer. Suffice to hold that, in exercise of its certiorari jurisdiction under Article 226 of the Constitution of India, this Court would refuse to exercise its discretion to interfere save manifest injustice or larger public interest being adversely affected and, since no injustice can be said to have been caused to the petitioner herein on account of the suo motu power of review being exercised by the Assistant Commissioner of Labour and, as the liability of Rs.5,48,914/- is not in dispute, I see no reason to exercise discretion in favour of the petitioner. The writ petition fails and is, accordingly, dismissed. No costs. _______________________________ Date: 04.04.2008 RAMESH RANGANATHAN, J MRKR To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{VEENA}