HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.21841 of 2005 Date : 06.10.2009 Between : The Assistant Provident Fund Commissioner ( ENF), Employees Provident Fund Organisation, Hyderabad. …..Petitioner And The Employees Provident Fund Appellate Tribunal & another. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.21841 of 2005 ORDER : This writ petition is filed by the Assistant Provident Fund Commissioner of the Employees Provident Fund Organisation, questioning the validity of the order, dated 18.04.2005, passed by the Appellate Tribunal, allowing the appeal preferred by the 2nd respondent- establishment. 2. The Enforcement Officer of the petitioner- Organisation has visited the 2nd respondent- establishment on 29th of January 1999 and found that 28 persons were working in the said school as on that date. Based on the report submitted by him, initially, a coverage notice, dated 28th July 1991, was issued to the 2nd respondent under the provisions of the Employees Provident Fund and Miscellaneous Provsions Act, 1952 (hereinafter referred to as ‘the Act’), and a code number was also allotted to it. After receipt of the said coverage notice, the 2nd respondent has started complying with the provisions of the Act, with effect from 29th January 1999. 3. The Provident Fund Commissioner has conducted inquiry under Section 7-A of the Act to pre-pone the date of applicability of the Act. On the ground that the 2nd respondent-establishment has failed to participate in the inquiry inspite of giving opportunity, an order was passed by the said authority, by recording a finding that the 2nd respondent-school had started functioning with effect from 08.06.1991 and had completed the infancy period by 07.06.1994, therefore, it was liable to comply with the provisions of the Act with effect from 08.06.1994. After passing of the said order, the 2nd respondent has approached the authority under Section 7-A of the Act, by making a representation. Considering such representation, the inquiry was reopened and it was considered as a review application within the meaning of Section 7-B of the Act, and inquiry was proceeded with. In the process of inquiry, the 2nd respondent-establishment has produced certain records relating to the period from January 1999 onwards, but it has failed to produce any records or registers pertaining for the period prior to January 1999. The primary authority, observing that as two sets of registers are maintained for the period from January 1999 onwards, has drawn the presumption that such records would have been maintained even for the period prior to January 1999, and therefore, has passed orders, determining the liability of the 2nd respondent-establishment under Section 7-A of the Act, as Rs.3,85,577/-, and also interest of Rs.1,39,370/- as provided under Section 7-Q of the Act. 4. Aggrieved by the said order of the primary authority, dated 13.02.2001, the 2nd respondent- establishment has preferred an appeal before the 1st respondent-Appellate Tribunal. The Tribunal has recorded a finding that the record produced by the 2nd respondent-establishment shows that the strength of its employees between June 1994 and January 1999 was ranging only from 13 to 15 and that there was no record at all to arrive at the conclusion that there were more than 20 or above employees worked at any time prior to January 1999, and therefore, it has allowed the appeal preferred by the 2nd respondent-establishment. 5. In this writ petition, it is contended by Sri R.N.Reddy, learned Standing Counsel appearing for the petitioner- Organisation, that the 2nd respondent-establishment itself has produced two sets of records for the period from January 1999 onwards, and there is no reason or justification for not producing the entire records for the period from 1994 to 1999. In that view of the matter, the primary authority has rightly drawn adverse presumption and passed orders, but the Appellate Tribunal, without recording valid reasons, has allowed the appeal preferred by the 2nd respondent. 6. On the other hand, it is submitted by Sri V.Venkat Rami Reddy, appearing for the 2nd respondent- establishment that there is no record at all to show that more than 20 persons are employed in the 2nd respondent-establishment prior to January 1999. It is submitted that it was the specific case of the 2nd respondent that in view of the extra premises taken for the educational needs, it has employed more than 20 persons only from January 1999, and there was no material before the primary authority for pre-poning the applicability of the Act from June 1994. It is submitted that in view of the finding of fact recorded by the Appellate Tribunal, there are no grounds to interfere with the order passed by it. 7. I have perused the orders passed by the primary authority as well as the appellate authority. Even the primary authority has recorded its findings only on the ground that the 2nd respondent has failed to produce the records pertaining for the period prior to January 1999. Except the said circumstance, which was made basis for drawing presumption against the 2nd respondent- establishment, there is no other material before the authority to record a finding that there were more than 20 persons employed by the 2nd respondent-establishment so as to pre-pone the applicability of the provisions of the Act from June 1994 onwards. Further, the Appellate Tribunal, having considered the material on record, has rightly recorded a finding that the strength of the employees of the 2nd respondent-establishment was ranging only from 13 to 15. In the absence of any other material, only on the ground that the records for the period prior to January 1999 were not produced, the primary authority ought not to have come to the conclusion to pre- pone the applicability of the Act from June 1994 onwards. The Appellate Tribunal, having considered the material on record, has rightly come to the conclusion that there was no basis for the primary authority to pre-pone the applicability of the Act to the 2nd respondent- establishment from June 1994 onwards. In any event, having considered the material on record, the Appellate Tribunal has recorded its findings by allowing the appeal preferred by the 2nd respondent. In that view of the matter, I do not find any ground to interfere with the order of the Appellate Tribunal, in this petition filed under Article 226 of the Constitution. 8. For the aforesaid reasons, the writ petition is dismissed. No order as to costs. It is needless to observe that if any amounts are deposited by the 2nd respondent before the appellate authority, in view of allowing of appeal by the Tribunal and dismissal of this writ petition, the 2nd respondent is entitled for refund of such amounts. ______________________ R. SUBHASH REDDY, J 6th October 2009 ajr