Jharkhand High Court
Sajjan Kumar Agarwal vs Employees Provident Fund Organization ... on 16 October, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 6051 of 2015
Sajjan Kumar Agarwal, son of late Jay Chand Agarwal, Proprietor of
M/s. Ranchi Industries, Hehal, Ratu Road, Ranchi, P.O., P.S. Sukhdeo
Nagar, District-Ranchi ... ... Petitioner
Versus
1.Employees Provident Fund Organization through Regional
Provident Fund Commissioner, Bhagirathi Complex, Near Circuit
House, P.O. and P.S. Karamtoli, Dist. Ranchi
2. Assistant Provident Fund Commissioner, Bhagirathi Complex, Near
Circuit House, P.O. and P.S. Karamtoli, Dist. Ranchi
3. Shri B. N. Jha, S/o not known to the petitioner, General Secretary,
All India Trade Union Congress, Ratu Road, Bus Stand, Ranchi
... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Ms. Swati Shalini, Advocate
For the Respondents : Mr. D.K. Maltiyar, Advocate
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17/16.10.2024 Heard the learned counsel for the parties.
2. This writ petition has been filed challenging the order dated 03.11.2010 passed under section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 by the Regional Provident Fund Commissioner, Ranchi whereby he has been pleased to direct the petitioner to pay an amount of Rs. 1,42,104.00 and also Challenging the appellate order dated 17.09.2015, passed in ATA No. 100(18)2011, by the Employees Provident Fund Appellate Tribunal, New Delhi, whereby the learned Tribunal has been pleased to dismiss the appeal filed by the petitioner.
Arguments of the petitioner .
3. The learned counsel for the petitioner submits that an inspection was conducted in the premises of the petitioner and a report was prepared. The report has been placed on record by the respondents in their supplementary counter affidavit dated 02.09.2024. The report is dated 15.02.1999 as Annexure-A. She submits that in the said report it has been mentioned that 21 employees were found working, However, there is no mention that the list of employees was also prepared and the list of employees was a part of the report. She submits that the first page of the report shows the receiving of the petitioner but at the same time a list of employees has been annexed to the report said to be prepared on the same day but the list of the employees does not show any receiving by the petitioner. She has submitted that neither the report mentioned about the list of employees as enclosure nor the document of list of employees shows any receiving of the petitioner. The learned counsel has further submitted that on the face of the list of employees, only the first name of the persons has been mentioned without their parentage and their address and the identity of such persons is itself incomplete. The learned counsel has submitted that an ex-parte order under Section 7-A was passed on 30.07.2004/04.08.2004 (Annexure-5) wherein the dues of Employees Provident Fund was calculated for the period from 02/1999 to 07/2003.
4. The learned counsel for the petitioner has submitted that the said ex-parte order was challenged before this Court in W.P. (L) No. 2160 of 2007 and without entering into the merits of the case, the writ petition was disposed of enabling the petitioner to either file review or an appeal under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952. She submits that consequently a review application was filed in which it was categorically disputed that the petitioner had ever employed more than nine employees and as such employment was given per the factory license given to the petitioner in which the petitioner was entitled to employee up to 9 persons. Further it was also mentioned in the review petition that the factory of the petitioner is not covered under the Employees Provident Fund Act as the manufacturing of aluminum utensils was not mentioned in the schedule to the Act. She has further submitted that the petitioner had also produced documents to show that the factory license was surrendered and the factory was permanently closed w.e.f. March, 1999 and therefore otherwise also any liability beyond March 1999 could not have been imposed. The learned counsel submits that the aforesaid points raised in the review petition were not considered in accordance with law.
25. The learned counsel for the petitioner has submitted that the fresh order was passed on 03.11.2010 wherein the claim of the petitioner that the establishment was closed since March 1999 and intimation in F-29 given to the office of Factory Inspector regarding closure of the factory was disbelieved on the ground that the Enforcement Officer had stated that he had visited the office of Factory Inspector but could not trace the copy of F-29 in that office and the license was renewed up to 05.01.2002 and that the establishment was running up to 05.01.2002. She submits that the authority under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952 have got power to summon various persons to give their evidence but the Enforcement Officer claims to have himself gone to the office of the Factory Inspector and inspected the records in the office of the factory inspector but such inspection in the office of the factory inspector by the enforcement officer under the employees provident fund act is not supported by any material except a mere statement of the Enforcement Officer. She submits that the Factory Inspector could have been summoned and the factum of filing of closure intimation in F-29 could have been verified. She also submits that the date of renewal of factory license has also not been mentioned which may have a bearing as to whether the renewal was done after the intimation of closure or it was prior to such intimation. The learned counsel has submitted that the contention of the petitioner that they had never employed more than nine persons has also not been considered and no such finding has been recorded. The learned counsel has further submitted that so far as point of jurisdiction regarding coverage as raised by the petitioner by referring to Schedule-1 has also not been considered by the Authority.
6. The learned counsel for the petitioner has submitted that an appeal was filed before the Appellate Tribunal against the order dated 03.11.2010 and the Appellate Authority after recording the submissions till paragraph 6 has not considered the fact that the list of 21 employees did not contain the receipt or signature of the petitioner and the other two aspects of the matter regarding applicability of the 3 Act and the matter regarding filing of the Form-29 under the Factories Act have also not been considered by the Appellate Tribunal. The learned counsel submits that the aforesaid plea raised by the petitioner in the review petition has not been considered by the Regional Provident Fund Commissioner while passing order dated 03.11.2010 and out of the three points only one point regarding number of employees has been considered by the Appellate Tribunal. The Appellate Tribunal has also not properly considered points of the petitioner and therefore the impugned order calls for interference and the same are fit to be set aside.
Arguments of the Respondents.
7. The learned counsel appearing on behalf of the respondents has submitted that the points which have been raised by the petitioner in the review petition if have not been considered by the authorities, at best the matter can be remanded. He submits that the matter relates to dues of provident fund which is certainly a beneficial provision for the employees. Findings of this court.
8. The matter relates to assessment of provident fund dues against the petitioner for the period from 2/99 to 7/2003. This court finds that the order dated 03.11.2010 was passed when the petitioner filed a review petition pursuant to order passed by this court in W.P. (L) No. 2160 of 2007. The petition for review reveals that interalia, all the three points as argued by the learned counsel were raised by the petitioner. A specific plea was raised that Aluminium utensils does not come within the schedule of the Act of 1952; the petitioner never employed more than nine employees and the employment was given as per the license given by the Factory Inspector and the factory of the petitioner was permanently closed w.e.f. March 1999 and the liability imposed by the Regional Provident Fund Commissioner was not maintainable. However, the aforesaid points have not been considered by the Authority.
9. The applicability of the Act is a jurisdictional point which was required to be considered by the Authority and a finding was required to be given in the light of the facts of the case but no such finding has been returned by the Regional Provident Fund Commissioner or by the Appellate Tribunal.
410. This court further finds that a dispute was raised with regard to the number of employees found working on the date of inspection but the Regional Provident Fund Commissioner has not recorded any finding with regard to the dispute regarding number of employees employed in the organization.
11. So far as closure intimation in form F-29 which is said to have been filed by the petitioner in the office of Factory Inspector is concerned, the same has been disbelieved on the statement made by the Enforcement Officer who claimed to have visited and verified the records of the Factory Inspector, but no such inspection report of the office of factory inspector has been referred in the impugned order and further it was certainly open to the Regional Provident Fund Commissioner to issue summons to the Factory Inspector who could have come and deposed regarding the correctness of filing of closure intimation in Form F-29 so that even the petitioner could have had the opportunity to cross examine the said authority as the petitioner has produced closure intimation in form F-29 before the Regional Provident Fund Commissioner claiming that the factory was closed since March 1999. The impugned order mentions that the factory licence was renewed and was valid till 05.01.2002 but the date of renewal has not been mentioned as to whether it was renewed after March 1999 or before March 1999 when the petitioner claims to have filed closure intimation in form F-29.
12. This court also finds that the aforesaid three points raised by the petitioner in the review petition has either not been considered properly or not at all considered as mentioned above and these aspects of the matter have also not been considered by the Appellate Authority.
13. It is also surprising that in the impugned order the Regional Provident Fund Commissioner has recorded that the establishment would be liable to pay the dues up to 05.01.2002 but assessment of the dues has been done up to 7/2003.
14. As a cumulative effect of the aforesaid findings, the order passed by the Appellate Tribunal as well as the order dated 03.11.2010 (Annexure-
10) passed by Regional Provident Fund Commissioner, RO, Ranchi (Annexure-8) are hereby set aside and the matter is remitted back to the Regional Provident Fund Commissioner for passing a fresh order in accordance with law after granting an opportunity of hearing to the 5 petitioner and if required summon the factory inspector with regard to the intimation in F-29 form regarding closure of factory and also verify regarding the renewal of factory license, if any, by the petitioner. The said authority would also give a specific finding in connection with the number of the employees based on the materials already available on record and also the records which may be produced by the petitioner relating to the period involved in the present case i.e. 2/99 to 7/2003.
15. The petitioner to appear before the Regional Provident Fund Commissioner Authority on 12.11.2024 at 11.00 am along with a copy of this order and a copy of the writ records and also the relevant records relating to the period 2/99 to 7/2003. The Regional Provident Fund Commissioner Authority is directed to pass a fresh order in the light of this judgment and in accordance with law after giving due opportunity to the petitioner including opportunity of hearing within a period of six months from the date of appearance of the petitioner. The petitioner is directed to co-operate in the disposal of the matter.
16. The reasoned order to be passed be forwarded to the petitioner through e-mail and also speed post, the details of which be provided by the petitioner to the Regional Provident Fund Commissioner Authority.
17. This writ petition is accordingly disposed of in the aforesaid terms.
(Anubha Rawat Choudhary, J.) Binit 6