IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10148 of 2008 N T P C LIMITED Versus EMPLOYEES' P.F.ORGANIZATION &ORS ----------- For the petitioner: - M/S Shivajee Pandey & Anil Kr.Sinha For the Respondents: Mr. R.S.Pradhan. ------------- 2. 25.07.2008 The matter has come up for an interim direction to the respondent no.3, the Assistant Provident Fund Commissioner, Sub Regional Office, Employees Provident Fund Organization, Bhagalpur, not to proceed further under Section 7A of the Employees Provident Fund & Miscellaneous Provisions Act against the petitioner during the pendency of the application. However, with the consent of the parties, the parties have been heard at length in the matter and it is being finally disposed of. The writ application has been filed with a prayer for quashing the order dated 2.5.2008 (Annexure-6) to the extent that respondent no. 3 has rejected the application of the petitioner for impleading the Contractor as a party in the proceeding initiated by the respondents under Section 7 A 1(b) of the Employees’ Provident Fund & Miscellaneous Provisions Act and for other consequential directions. After receipt of notice of the proceedings under Section 7A of the EPF Act the petitioner-NTPC, filed an application on 26.3.2008 before the Assistant Provident Fund Commissioner in which, inter alia, it was submitted that for the purpose of recovery of contribution etc. in respect of employees of the contractor, the contractor is a necessary party and directions be issued to the - 2 - contractor to produce the relevant records and no liability can be fastened on the Principal Employer without taking such records against the contractors. It was accordingly submitted that Section 7A proceedings should be closed and/or withdrawn against the NTPC as being without jurisdiction and/or without making the contractor as necessary party. The said application was rejected by the impugned order dated 2.5.2008. Before this Court the only contention of learned counsel for the petitioner is that the matter ought not to proceed further without impleading the contractor as a party to the proceedings. In support of the said proposition learned counsel relies upon a recent decision of the Supreme Court in the case of Bharat Heavy Electricals Ltd. Vs. ESI Corporation: AIR 2008 Supreme Court 1449, in paragraph nos. 17 and 18 of which it has been held as follows:- “17. Determination of the exact liability on the part of the contractors is necessary keeping in view the fact that they or some of them may not be under the control of the principal employer having regard to the fact that the contract has come to an end. It will bear repetition to state that the principal employers have a statutory right to recover the dues from the contractors/immediate employers. 18. It appears that the determining authority did not give an opportunity of hearing to the petitioner in regard to the names and other particulars of the contractors. The impugned judgment, therefore, cannot be sustained. It is set aside accordingly. The appeal is allowed and the matter is remitted to the ESI Corporation/determination authority for considering the matter afresh. The authority shall either implead the contractors as parties and/or summon them for producing necessary records for the said purpose. In the facts and circumstances of the case, there shall be no order as to costs.” - 3 - Learned counsel further relies on an earlier decision of the Supreme Court in the case of Food Corporation of India Vs. Provident Fund Commissioner and others: (1990) 1 Supreme Court Cases 68, paragraphs 6 and 9 of which are quoted herein below:- “6. We have carefully perused the Commissioner’s order and also the order of the High Court. The total amount ordered to be payable comes to about Rs. 22,48,000 in respect of the employees of depots namely, Udaipur, Jaipur, Ajmer, Badmer and Sawai Madhopur. The Commissioner has also directed the Divisional Officer, Jaipur to deposit the provident fund contribution i.e. Rs. 18,72,194 to the Fund being maintained by the trustees of the establishment. It is indeed a large amount for the determination of which the Commissioner has only depended upon the lists furnished by the Workers’ Union. It is no doubt true that the employer and contractors are both liable to maintain registers in respect of the workers employed. But the Corporation seems to have some problems in collating the lists of all workers engaged in depots scattered at different places. It has requested the Commissioner to summon the contractors to produce the respective lists of workers engaged by them. The Commissioner did not summon the contractors nor the lists maintained by them. He has stated that the Corporation has failed to produce the evidence. 9. It will be seen from the above provisions that the Commissioner is authorized to enforce attendance in person and also to examine any person on oath. He has the power requiring the discovery and production of documents. This power was given to the Commissioner to decide not abstract questions of law, but only to determine actual concrete differences in payment of contribution and other dues by identifying the workmen. The Commissioner should exercise all his powers to collate all material before coming to proper conclusion. That is the legal duty of the Commissioner. It would be failure to exercise the jurisdiction particularly when a party to the proceedings requests for summoning evidence from a particular person.” Faced with the aforesaid decisions, learned counsel for the Employees Provident Fund Organization, does not seriously contend - 4 - against the submissions made by the learned counsel for the petitioner. In view of the settled proposition of law on this point, the writ application is allowed. The impugned order dated 2.5.2008 passed by respondent no. 3 is set aside to the extent that it had rejected the application of the petitioner for impleading the contractor as party to the proceedings and the matter is remitted to the respondent no. 3 to pass a fresh order in accordance with law in the light of the law laid down by the Apex Court. S.Pandey (Ramesh Kumar Datta, J.)