Orissa High Court
Paayal Engineers And Anr. vs Assistant Provident Fund Commissioner ... on 10 February, 2005
Equivalent citations: 2005(I)OLR413
Author: A.S. Naidu
Bench: A.S. Naidu
ORDER A.S. Naidu, J.
1. Heard Mr. Udgata, learned counsel for the petitioners, and Mr. Satpathy learned counsel for the Provident Fund authorities.
2. The order of assessment dated 11th July, 2003, Annexure-3, passed by the Assistant Provident Fund Commissioner in Case No. 7A/02/2003 is assailed in this Writ Petition. Mr. Satpathy raised a preliminary issue with regard to maintainability of the Writ Petition and submitted that as an Appeal is stipulated under the Act, this Writ Petition is not maintainable. Mr. Udgata at the other hand submitted that the order is palpably illegal and an apparent error has been committed apparent on the face of records for which the petitioners should not be directed to file an Appeal at Delhi, as such direction would cause irreparable loss and harassment to them. According to Mr. Udgata if a palpable illegality has been committed by the Provident Fund authorities, only because alternative remedy is available the doors of a Writ Court should not be shut.
3. In order to appreciate the submission of the learned counsel for the parties, it would be prudent to refer to some of the facts of the case.
Admittedly M/s. Himalayan Engineering Corporation, Rajgangpur is an industrial establishment covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter called 'the Act') and had been allotted a P.F. Code, being No. OR/ 720. The said establishment was certified to be closed and thereafter three separate establishments, namely, M/s. Orissa Engineering Corporation, M/s. Som Dutt Industry and M/s. Paayal Engineers started running their business within the same premises where M/s. Himalayan Engineering Corporation was running its business. Out of the aforesaid three units, M/s. Paayal Engineers has filed this Writ Petition. The grievance of the petitioner establishment is that its unit was registered with the D.I.C., Sundargarh only 31.12.1996 and was registered under the Factories Act on 27.6.2000. After fulfilling all paraphernalia and obtaining electricity connection from the Electricity Board it started its production.
4. It is submitted by the learned counsel for the petitioner company that the petitioner company is a proprietorship concern and its proprietor was never a partner of M/s. Himalayan Engineering Corporation. As such, treating its independent unit, as a branch of other units of erstwhile M/s. Himalayan Engineering Corporation by the Provident Fund authorities and assessing its liability under the Act, is unjust, illegal and contrary to law.
5. Mr. Satpathy at the other hand forcefully submitted relying upon the show-cause notice, Annexure-1, that M/s. Himalayan Engineering Corporation was the original unit and in order to befool the Provident Fund authorities, the said unit has been fragmented into three units. All the units are running in the same premises, managed by the same partners and the nature of business is the same in all the branches and, as such, on the basis of the report of the Enforcement Officer and the relevant records the Provident Fund authorities have rightly treated the three units as branches of one establishment and in consonance with the provisions of Section 2-A of the Act proceeded with assessment of liability of the petitioner. According to Mr. Satpathy the order Annexure-3 is just and proper and should not be interfered with.
6. Heard learned counsel for the parties at length and perused the materials available on record. The Assistant Provident Fund Commissioner in the order Annexure-3 has clearly arrived at the following conclusion :-
".... However in present scenario as all the three partners are separated and running their own units independently the sub code nos. as given are allotted to the units on administrative ground as the establishments are maintaining their books of accounts separately."
7. In view of the fact that the Asst. Provident Fund Commissioner on the basis of the report of the Enforcement Officer and other materials has arrived at the conclusion that all the three establishments were separate and were running their units independently, a subsequent finding that those are branches of one and the same establishment is definitely an error apparent on the face of records. If the partners have separated and they are running their own units independently considering which separate Provident Fund Code numbers were issued, it is too late for the authorities to turn back and say that the said units are branches of one establishment.
8. Be that as it may, on a reading of the entire order, I find that the authorities have not appreciated the facts and circumstances of the case in proper perspective. The order Annexure-3 even otherwise suffers from an initial defect, inasmuch as M/s. Paayal Engineers is an independent unit, as found by the Asst. Provident Fund Commissioner basing upon the documents available, and it being registered only on 31.12.1996, came into existence for all purposes from the said date. It appears that the Provident Fund authorities have assessed the liability of the petitioner from 12/1992 to 3/1994 when the said unit was never in existence. Such assessment in respect of a unit which was not in existence during the relevant period cannot be sustained in the eye of law. In view of these inherent defects in the assessment order, I find no useful purpose would be served by directing the petitioner to file an Appeal specially in view of the fact that a sum of Rs. 1.5 lakhs has already been paid by the petitioner before opposite party No. 1 pursuant to direction of this Court.
9. In view of the aforesaid observations, I allow the Writ Petition and quash the order dated 11th July, 2003, Annexure-3. I direct the Assistant Provident Fund Commissioner to dispose of Case No. 7A/02/2003 de novo after hearing the petitioner and strictly in consonance with law.
The amount already deposited by the petitioner shall remain in Fixed Deposit in any Nationalised Bank till the case is disposed of and the same shall be subject to final decision in the case. The case shall be, disposed of within a period of three months.