IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3635 of 2010 1. M/S Shiva Agro Industries Pvt. Ltd. through its Director, Sri S.P.Narayan, S/O Late Ram Prasad, Sah R/O Vill./Mohalla- Bajrangpur, P.S.- Alamganj, Distt.- Patna. Versus 1. The Employees Provident Fund Organization, through its Commissioner, Bihar, Patna, Having its Office at Provident Fund Building, R.Block, Road No. 6, Patna 2. The Regional Provident Fund Commissioner-1, Bihar, Patna 3. The Assistant Regional Employees Provident Fund Organization, Bihar, Patna. ---------------------------------- For the petitioner : M/s. Ashok Kumar Choudhary Shailendra Kumar Jha, Advocates. For the respondents : Mr. R.S.Pradhan Senior Advocate. ----------- 5. 19.9.2011. Heard learned counsel appearing on behalf of the parties. The writ petition has been filed questioning the assessment order dated 23.11.2004 passed by the Assistant Provident Fund Commissioner in purported exercise of powers vested under section 7A of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the Act’) as communicated by letter dated 29.11.2004. The facts of the case in brief is that the petitioner is a partnership firm having its factory in the town and district of Patna. Pursuant to an enquiry made by the Enforcement 2 Officer on 13.4.1998 recommending for enforcing the provisions of the Act on the establishment of the petitioner as contained in Annexure-A series of the counter affidavit, a proceeding was initiated against the petitioner under the provisions of Section 7A of the Act and in which, a direction was issued on 9.8.2001 requiring the petitioner to furnish the relevant records/documents. Following the directions, a second notice was issued on 8.12.2003 fixing 26.12.2003 as the date of hearing. The relevant notices have been placed at Annexure-1 series. In response to the notices aforementioned, the petitioner, vide letter dated 26.12.2003 (Annexure-2), addressed to the Provident Fund Commissioner, Bihar, Patna, while referring to the documents submitted by him, raised an objection as to the applicability of the Act on grounds that the establishment did not have more than 20 employees. A further prayer was made requesting the respondent Commissioner to inform as to whether they would like to verify the position by any other documents. Notwithstanding the objections raised by the petitioner regarding the non-applicability of the Act, the respondents continued with the 3 proceedings. The petitioner, on his part, submitted the following documents in support of his contentions: (i) Photo copy of audited annual accounts for the year 1997-98, 1998-99, 1999-2000, (ii) Photo copy of attendance register for the period January 1998 to December 1998, January 1999 to December, 1999, January 2000 to December 2000 and January 2001 to March, 2001, (iii) Photo copy of wage register for the period January 1998 to December, January 1999 to December 1999, January 2000 to December 2000 and January 2001 to March, 2001, (iv) Photo copy of the return filed at ESIC for the relevant period, (v) Photocopy of the chalan regarding amount deposited with ESIC for the relevant period (vi) Photocopy of the statement of inspection by ESIC Inspector.” It is not in dispute that the petitioner initially participated in the proceeding but later chose to abstain from the same for reasons that documents so submitted by him confirmed that the Act was not applicable on his establishment and that his establishment had finally closed its 4 operation since 2001. The petitioner by letter dated 15.9.2004 (Annexure-3) even drew the attention of the Assistant Provident Fund Commissioner informing him that the unit had closed its operations by reason of a fire which had taken place in the establishment in 1998. Learned counsel for the petitioner has relied upon a report of the Fire Station Officer dated 24.11.1998 (Annexure-4) in support of the contention that a fire had taken place in the establishment on 10.10.1998 and in which, the entire establishment had been gutted. It is the contention of the petitioner that as the records of the establishment were gutted in the fire, the petitioner had produced the wage registers, the attendance register together with the audited accounts for the period subsequent thereto, before the Assistant Provident Fund Commissioner for consideration. The Assisting Provident Fund Commissioner concluded the proceedings and by an ex parte order dated 23.11.2004 placed at Annexure-5 to the writ petition held the Act applicable on the petitioner establishment with effect from November 1997 to March, 2001. It is this order of assessment which is put to challenge before this court 5 No doubt the writ has been filed after a considerable lapse of time but considering the issues raised in the writ petition, this court has ventured into the merits of the case. Learned counsel for the petitioner submits that the proceeding is not sustainable in view of the statutory provisions of Section 16(1)(d) of the Act, as it stood on the date on which the proceedings was initiated pursuant to the confidential enquiry report dated 13.4.1998. It is stated that section 16(1)(d) of the Act, as it then existed, exempted an establishment from the coverage of the Act for the initial three years of its establishment. Learned counsel, with reference to the statement made in paragraph-27 of the writ petition submits that the factory was established on 25.12.1995 and thus in view of the provisions of Section 16(1)d) of the Act as it stood prior to amendment by Act 10 of 1998, the petitioner establishment was entitled for exemption until 24.12.1998 being the period of infancy. Learned counsel, in support of his submissions, has relied upon a judgment of the Supreme Court rendered in the case of Sangam Spinners Vs. The Regional Provident Fund Commissioner & ors reported in (2008) 1 SCC 391. 6 Learned counsel submits that in view of the aforesaid position, the Act could not have been made applicable on the establishment for the period November 1997-December 1998 and even the subsequent period has to be tested against the strength available in the establishment which was below 20 and a specific statement to that effect was made by the petitioner as back as on 26.12.2003 when it had received notice in this regard. It is contended that in absence of any cogent material, the statement of the petitioner that the strength of his employees were below 20, cannot be disbelieved. It is contended that the petitioner had submitted the relevant attendance and wage register in support of his contentions and which has been rejected as being fictitious without substantiating the charge. Mr. R.S.Pradhan, learned Senior Counsel, appearing on behalf of the respondents, contested the position and with reference to the enquiry report placed at Annexure-A series submits that the finding of the Enforcement Officer, upon an enquiry made in this regard, demonstrates that there were no less than 40 persons, who were working in the petitioners’ establishment at the relevant time. It is contended that despite 7 issuance of notice, the petitioner failed to participate in the proceedings. Learned counsel, with reference to the order sheet placed at Annexure-C series to the counter affidavit, submits that the petitioner had been given 44 opportunities to respond to the issues but he having failed to appear before the Assistant Provident Fund Commissioner, cannot be allowed to raise those issues in the present proceedings. It is the contention of the learned counsel for the respondents that the Act is a beneficial legislation and it was the duty of the respondents to enforce the provisions of the Act on every such establishment, who despite possessing statutory number of employees, are not honouring their obligations and deprive the workers from the benefits arising under the Act. It is further contended that as the relevant documents produced by the petitioner were not found to be genuine rather found fictitious, hence, the Assistant Provident Fund Commissioner, has rightly proceeded to determine the dues in the backdrop of the enquiry report and the complaint made by the General Secretary, Labour Union, as placed at Annexure-B to the counter affidavit. Learned 8 counsel further submits that the issue having been raised after such long lapse of time, should not be entertained and the writ petition be dismissed. I have heard learned counsel for the parties and have perused the materials available on the records. The applicability of the Act on an establishment is an issue fact and law both and thus has to be determined on the basis of the facts available on the records of the proceedings. A plain reading of the enquiry report which is the sole basis of the Section 7A proceedings, simply mentions the numbers in numerical form without any details. The Enforcement Officer has not even mentioned the name of these workers, leave alone the parentage and the addresses. The determination of strength in any establishment is a sine qua non to the applicability of the Act and which is manifestly missing in the present proceedings. A proceeding conducted under the provisions of 7A of the Act is a quasi judicial proceeding and has to be conducted in a judicious manner and not in a whimsical manner. Even while the enquiry report mentions an employment of 40 persons in the petitioner’s establishment, their names are missing. This 9 issue having been raised by the petitioner as back as on 26.12.2003, it needed a positive determination by the Assessing Officer, who instead of asking for the details of the employees, has simply accepted the confidential report which nowhere contains any details of the workmen. The records produced by the petitioner in support of the contention regarding the strength of the establishment being below 20, has been brushed aside by holding them to be fictitious. The basis for such finding can nowhere be found in the impugned order. Thus considering the case of the petitioner in the light of the judicial pronouncement rendered in the case of Sangam Spinners (supra), it is clear beyond any shadow of doubt that the Act could not have been made applicable on the petitioner from the date of its establishment on 25.12.1995 up to 24.12.1998 and thus the impugned order cannot be sustained. It is now to be seen whether the order can sustain the challenge for the subsequent period i.e 25.12.1998 to March 2001. In view of the complete absence of details of the workmen said to be working in the establishment of the petitioner, the order cannot be sustained simply on basis of the numerical 10 strength shown in the enquiry report. The complaint of the General Secretary of the Workers Union in absence of corroborative and a positive finding by the Assistant Provident Fund Commissioner on this aspect, cannot come to its rescue. The judgment of this court in the case of K.G. Majithia since reported in 1997 (1) PLJR 403 is very explicit on this issue and completely seals the fate of the impugned order. For the reasons aforesaid, the order impugned dated 23.11.2004 placed at Annexure-5, cannot be sustained and the same is set aside. Any consequential proceedings initiated for recovery of the amount, in furtherance of the impugned order dated 23.11.2004, is also set aside. The writ petition is allowed. ahk (Jyoti Saran, J.)