1412lpa480.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. LETTERS PATENT APPEAL No. 480/2011 IN WRIT PETITION No. 1504/2011. M/s. Sanghvi Machineries and Fabrication Pvt. Ltd. Nagpur. -VERSUS- The Assistant Provident Fund Commissioner, Nagpur and another. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI AND P.D. KODE, JJ. DATED : DECEMBER 14, 2011. Heard Shri R.L. Khapre, learned Counsel for the petitioner and Shri R.S. Sundram, learned Counsel for the respondents. 2. It is not in dispute that in proceedings under Section 7B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as “the 1952 Act” for 1412lpa480.11 2 short), because of finding of availability of 3 employees with one supervisor, the coverage of the establishment of the appellant has been taken from 27.07.2000. The said order was assailed in appeal before E.P.F.A.T. and thereafter in Writ Petition before the learned Single Judge, by the appellants. 3. Before this Court Shri Khapre, learned Counsel has contended that the appellant was not given any opportunity in relation to Fitter Shri Sharma and his three helpers, as noticed by the department on the strength of vouchers dated 27.07.2000. It is his contention that the said vouchers at the most show work of water leveling for three days and as noticed in Section 7B inquiry, or at the most for five days i.e. from 27.07.2000 to 31.07.2000. In this situation, he argues that this voucher is insufficient to establish any relationship of the employer and employee between the appellant and these four persons. Our attention 1412lpa480.11 3 is also invited to vouchers to show that these persons have carried out work of water leveling, which is totally unconnected with the work of appellant. It is further contended that in review, scope of consideration was limited, because then appellant was trying to demonstrate that inclusion of 4 new persons who were actually Consultants, were uncalled for. That contention of the appellant has been accepted in Section 7B inquiry and for the first time, these new persons are shown and treated as employees. He contends that this has been done without proper opportunity and notice to the appellant. 4. Lastly, he has invited attention to the judgment of Hon'ble Apex Court reported at 1973 DGLS (Soft) 382 = AIR 1974 SC 337 (V.K. Bhatt .vrs. Allwin Concret Blocks and Tiles Company) to urge that such a document needed to be confronted and cannot be used unless and until 1412lpa480.11 4 explanation of employer in relation thereto is obtained. Judgment in case of The Provident Fund Inspector, Guntur .vrs. T.S. Hariharan reported at AIR 1971 SC 1519 is relied upon to urge that identification of works to whom those vouchers relate, has not been established on record. 5. To substantiate his contention, learned Counsel has invited our attention to the photostat copies of documents produced before this Court to show that the vouchers issued by M/s. Jagdamba Engineering on 10.09.2000 show payment for work of fabrication of ducts and dismantling of ducts and also towards labour charges. It is his contention that this material on record is insufficient in the light of the observations of the Hon'ble Apex Court in the case of The Provident Fund Inspector, Guntur .vrs. T.S. Hariharan (supra) to hold appellant liable under the 1412lpa480.11 5 provisions of the 1952 Act due to Section 1[3] thereof. 6. Shri Sundram, learned Counsel on the other hand has pointed out that when matter was taken up under Section 7B, fresh report was called for and that report dated 06.02.2007 given by the Enforcement Officer is duly received by the appellant. The appellant did not make any grievance about findings recorded therein, and though he was given opportunity even during Section 7B inquiry, no steps were taken to produce any material to show that work done by Shri Sharma as Fitter and three helpers under him, could not have been recognized as work of employee of appellant under Section 1[3]. He has contended that on the basis of the documents supplied by the appellant itself, the view has been taken. He points out that the appellant before this Court is engaged in Fabrication activities and the 1412lpa480.11 6 contractor M/s. Jagdamba Engineering has provided necessary labour force to the appellant. He contends that all this material has been looked into by First Authority and thereafter by the Appellate Authority and thereafter by the learned Single Judge. He therefore, prays for dismissal of the appeal. 7. Shri Khapre, learned Counsel in reply points out that the report dated 06.02.2007 was very much in dispute, as the appellants have all the while attempted to point out the undue exercise undertaken for obtaining it in the light of the earlier report. He contends that said report was procured to some how fasten the liability upon the appellant. 8. The documents on record are not in dispute. The facts show that report dated 06.02.2007 was submitted by the Enforcement 1412lpa480.11 7 Officer to Authority undertaking inquiry under Section 7B in those proceedings. The fact of receipt of that report by the appellant is also not in dispute. 9. Now, the appellant wants to demonstrate that, that said report was unnecessary or then prepared only to victimize it's establishment. It is further attempted to show that the vouchers, even if taken at their face value, do not show that work performed thereunder related to the establishment of the appellant. 10. We find all these questions basically pertain to domain of facts. The appellant was given necessary opportunity by the Authorities. It remained satisfied with the contention that report dated 06.02.2007 is unnecessarily obtained only to some how see that it's establishment is covered under the 1952 Act retrospectively i.e. from 1412lpa480.11 8 27.07.2000. The appellant could have then demonstrated to Section 7B authority, the real purpose behind 2nd report by placing necessary material and we are not in a position to find any assertion about denial of such opportunity. The impugned order passed in Section 7B inquiry shows that requisite opportunity in this respect was given to the appellant. 11. Nature of work, as disclosed on record because of said vouchers or then the voucher dated 10.09.2000 submitted by M/s. Jagdamba Engineering, could have been commented upon and appropriate evidence to show nature of work undertaken thereunder or then how that is not in consonance with the activities of the present appellant, could have been brought on record in 7B inquiry. There is no explanation as to why that has not been done. There is nothing on record to show difference in nature of working of appellant 1412lpa480.11 9 and M/s. Jagdamba Engineering. 12. We, therefore, find that in present Letters Patent Appeal effort is only to open questions of facts which are already sealed. We are therefore, not inclined to interfere in the matter. Letters Patent Appeal is, therefore, rejected. However, in the circumstances of the case there shall be no order as to costs. JUDGE JUDGE Rgd