Gujarat High Court
Superb vs Regional on 16 June, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/6884/2010 1/ 23 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6884 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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SUPERB
CASTING CORPORATION THROUGH BINIT RAJNIKANT JOSHI - Petitioner(s)
Versus
REGIONAL
PROVIDENT FUND COMMISSIONER & 2 - Respondent(s)
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Appearance
:
MR
HRIDAY BUCH for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/06/2010
ORAL
JUDGMENT
Heard learned Advocate Mr. Hriday Buch for petitioner. Petitioner has challenged two orders before this court. One is order passed by respondent PF Authority under section 7A dated 30th April, 2007 and other is order passed by Employees' Provident Fund Appellate Tribunal, New Delhi Camp Ahmedabad in Appeal bearing No. ATA435(5)/2007 dated 16th April, 2010.
Learned Advocate Mr. Buch for petitioner has submitted that in January, 2005, respondent PF Authority has initiated proceedings under sec. 7A of PF Act on the basis of complaint received from Union. He further submitted that various documents were produced on record by petitioner including muster roll of each month from 1988 to show that at no point of time before January, 2005, establishment had engaged more than 20 employees. Petitioner has produced identity card register before PF Authority. He relied upon page 64 which is a statement showing number of employees in fact working as on 1st December, 1989 and list of employees who are believed to be working on 1.12.1989 but in fact not working which is at page 65 and submitted that PF Authority has committed gross error in relying upon list produced by union and their list has been believed by PF Authority and documents produced by petitioner have been ignored by PF authority. He further submitted that page 57 is list produced by union where number of errors are there and one name of workman has been repeated in the same list and yet that has been considered as correct and said list has not been tallied with the list produced by petitioner. He relied upon last paragraph at page 28 and that paragraph has been read over before this court. He submitted that the matter was reserved for judgment by authority on 10th January, 2006 and page 139 where rojkam is there and page 31, judgment has been pronounced on 30th April, 2007 and because of delay of more than 1 year, authority may not be remembering correct facts in his mind and might have committed error because of delay in pronouncement of judgment of about one year and three months. He submitted that appellate authority has also not considered it. Page 24 has been relied upon. In identity card register, name of employees has been mentioned as and when they have been appointed by employer but that does not mean that all these workmen whose names are mentioned in identity card register are remain continuously working with petitioner. He submitted that the muster roll produced by petitioner was signed by Government Labour Inspector and Factory Inspector and wage register also produced on record but both documents have not been considered by PF Authority. License given by Factory Inspector under the provisions of Factories Act shows less than 20 employees but that has also been ignored by PF Authority. He submitted that ultimately responsibility of more than Rs.20 lakhs is to be borne by petitioner because of erroneous order passed by PF Authority and confirmed by appellate authority. Except that, no other submission is made by learned Advocate Mr.Buch except to refer page 64 onward upto page 136 produced by petitioner. Except that, no other submission is made by learned advocate Mr.Buch and no decision has been relied upon by learned Advocate Mr.Buch before this Court.
I have considered submissions made by learned Advocate Mr. Buch. I have also perused order passed by PF Authority as well as Appellate Tribunal. I have also considered relevant record which are annexed to present petition.
Question is that whether PF authority has rightly examined matter under section 7A of PF Act or not. It is necessary to note that entire matter has been based on facts. PF authority while initiating inquiry under sec. 7A, examined facts based on record and came to conclusion that petitioner is covered by PF Act w.e.f. 1.12.1989 because at the relevant time, effective strength of more than 20 shall be attained by petitioner. For reaching this conclusion, PF Authority has considered relevant record produced by union as well as petitioner. List produced by union has also been scrutinized by PF Authority and thereafter, PF Authority has come to conclusion that at the relevant time, effective strength of 20 shall be attained by petitioner w.e.f. 1st December, 1989, therefore, provisions of the Act would accordingly be attracted w.e.f. 1st December, 1989. Relevant discussion made by PF Authority from page 28 onward is quoted as under:
The moot point to be decided in present proceedings is the date with which the Act provisions would become applicable to establishment that the establishment was earlier functional at plot no. 182, Phase 2, GIDC Vatva from the year 1984 and subsequently shifted to Plot NO. A-1-3902, Phase-IV GIDC Vatva in November, 2004 is a fact which has been consented upon by one and all. The factory license no.
098863 utilized by M/s. Superb Casting Corporation has been issued by Factory Inspector Office on 30.12.1982 with address as Plot NO.
182, Phase II GIDC Vatva. The details of employees submitted by establishment also confirms continuation of employment of certain employees after 15.11.2004 at new site at plot no. A-1-3902, Phase IV. The continuity of employment, management or for that matter, continuity of business itself not being in dispute, the only crucial consideration for applicability of Act would be the fact of employment strength as envisaged under section 1 (3) of the Act.
As per section 1(3)(a) of the Act, the provisions of EPF and MP Act become applicable to an establishment which is a factory engaged in any industry as specified in Schedule 1 of the Act and employing 20 or more persons. The establishment is engaged in Engineering industry which is a specified one in Schedule-I. The material consideration for applicability, therefore, remains only the yardstick of employment strength.
The extracts of identity card registers which mentions date of joining and dates of leaving in respect of employees engaged by establishment after 1.4.1986 have been submitted by establishment.
The status of employees listed in union's complaint has also been clarified by establishment. Analyzing the over all position emanating therefrom, the employment particulars would be as follows:
Sr. No. Name of Employee Date of Joining Date of leaving
1.
Ramkhiladi Tejsingh 1.4.1986 Still in employment
2. Dashrathprasad Ramasry 1.4.1986 8/10/1986
3. Sudama Bagodham Thakore 1.4.1986 Not Available
4. Gulamnabi D. Mailk 1.4.1986 Not Available
5. Chhotelal Bhawat Prasad 1.4.1986 Not Available
6. Vidhyasagar Naresh Yadav 2.5.1986 Not Available
7. Vind Parmeshwar Pradad 2.5.1986 8/10/1986
8. Sureshpradas Swarupprasad 2.5.1986 8/10/1986
9. Madanlal Kamlesh 2.5.1986 Not Available
10. Surajbhan Maturaprasad 1.7.1986 Not Available
11. Chandravadan Bhajansing 1.7.1986 8/4/1998
12. Bagabhai Chanabhai 1.7.1986 Not Available
13. Bahadur Baivanath 1.9.1986 Not Available
14. Dinesh Premabhai 1.9.1986 31/10/2004
15. Nannumiya Dilkashmiya 6.11.1986 Not Available
16. Chhotelal Tejsing 1.12.1986 Still in employment.
17. Mukundi Keshram 1.12.1986 30/11/1990
18. Gayanprasad Nimajirao 1.1.1987 24/10/1997
19. Puransingh Jagjitsing 1.1.1987 24/10/1997
20. Sakrabhai Visalbhai 1.1.1987 24/10/1997
21. Dineshbhai Haribhai 1.1.1987 2000
22. Kanubhai R. Parikh 1.1.1987 Still in employment
23. Vijaykumar Chunilal 1.4.1988 2000
24. Rajkumar Rajdev 1.4.1988 2000
25. Vinod M. Patel 1.4.1988 2000
26. Dildar Umakha 1.4.1988 10/6/1997
27. Gajanand Vasanti 1.4.1988 Still in employment
28. Ramnivas Bradriprasad 1.4.1988 11/7/2000
29. Ramnarayan Ramsahay 1.4.1988 23/8/1993
30. Balakram Kashiram 1.4.1988
31. Gambhir Shanabhai 1.4.1988 Still in employment
32. Baldevbhai Mangaldas 1.4.1988 Still in employment
33. Ramkeshprasad Baramprasad 1.9.1988
34. Govindsinh Badrisingh 1.9.1988 1999
35. Dinesh Premabhai 2.8.1990 1/1/2004
36. Dulabhai Harisingh 1.4.1991 6/1/2002
37. Ramesh Ambikaprasad 1.8.1992 6/1/2002
38. Motibhai Bijiya 1.4.1993 Still in employment
39. Dineshbhai Bhimjibhai 1.4.1994 30/5/1997
40. Rajbahradur Rameshwar 1.7.1996 Still in employment
41. Rameshsing Ganpatsing 1.7.1996 18/12/2002
42. Mukesh Jairam 1.4.1998 Still in employment
43. Jaising Tuversing 1.4.2001 29/11/2003
44. Ramchandra Halwaprasad 1.4.2001 Still in employment
45. Ramsajivan Raghuraj 1.4.2001 Still in employment
46. Arvind Ramanbhai 1.4.2003 Still in employment
47. Ramesh Ramanbhai 14.2003 Still in employment
48. Babu Bharwad 1/2002 Still in employment
49. Rajubhai Kawabhai 1/2002 Still in employment
50. Gopalbhai 1/2002 Still in employment While deriving the above analysis, it would simultaneously be observed that
1) In case of employees listed at sr. no.1, 16, 22, 27,31,32, 38, 40, 42, 44 to 46 in the establishment has mentioned their date of leaving as 31.10.2004 in the remarks column of identity card register. However, this statement of establishment is self-contradictory as while clarifying their status in reference to list of employees furnished by union, they are mentioned as still continuing in employment. The names of these employees also find mention in the list of employees submitted by squad as found working on the date of their visit i.e. 5.1.2005. As such, they are considered as still in employment of establishment.
2) The date of leaving in respect of employees listed at sr. no.3 to 6, 9, 10,12,13,15,30 and 33 are not recorded in the identity card register submitted by establishment. The names of these employees are neither mentioned in the list of employees submitted by union, nor reflected in the list of employees reported by Enforcement Officers' Squad. As such, they would be deemed to have left employment at a prior date.
Examining tabulated analysis above which is derived on the basis of details submitted by establishment itself, and even if, the employees at (2) above are not counted to obviate any conflict or dispute, the employment strength of establishment first reaches 20 on 1.9.1989 All of these 20 employees have simultaneously continued in employment upto 30.11.1990 and none of them has left employment prior to that date. The first of these 20 employees to have left employment is Shri Mukundi Keshram (Sr.No.17), whose date of leaving employment is 30.11.1990. Nothing regarding discontinuity or break of service of any of the employee is submitted by the establishment. Taking into consideration the criteria of three months' service as condition precedent for eligibility membership of the Fund prevailing at the relevant time, the effective strength of 20 shall be attained on 1.12.1989. Consequently, the applicability of Act would accordingly be attracted from 1.12.1989.
The Act is a piece of beneficial social legislation enacted by legislature with a viw to extend social security benefits to poor workers. The sanctity of the statute has been upheld in various pronouncements of Hon'ble Court also. The applicability of the Act is not subservient to the will of the employer and it will apply on its own force. That the establishment has not come for coverage under the Act on its own volition and act has been applied in January,2005 only after detection by Departmental Squad does not absolve the establishment of its lawful liability. However, now that the substantiating evidences and documents have been brought on record, there forms a cogent case for making applicable the Act Provisions with effect from the date with which they should have come into force and to extend consequential benefits to the concerned employees.
Now, therefore, in the lights of foregoing, analyzing the documents / material adduced during proceeding and after applying my mind to the facts of the case, I, Dhanwant Singh, Assistant Provident Fund Commissioner, Ahmedabad, Gujarat, hereby hold that the Act would become applicable to M/s.Superb Casting, Vatva, Ahmedabad, with effect from 1/12/1989. The date of coverage of establishment under the Act is accordingly shifted backwards from 5/1/2005 to 1/12/1989. The employer in relation to establishment M/s.Superb Casting is directed to report compliance to the Act with effect from 1/12/1989.
Aforesaid order passed by PF Authority was challenged by petitioner before appellate tribunal. Finding given by appellate tribunal after considering reasoning given by PF Authority which has been based on facts and relying upon documentary evidence produced by both parties have been considered by appellate tribunal. There was no oral evidence led by petitioner before PF Authority. Reasoning given by Appellate Tribunal, page 24, are quoted as under:
Since, the strength of the establishment was questioned, it was to be decided first. The licence and muster roll filed by the appellant supports his case. But the list which is signed by the appellant shows the appointment of more than 20 persons. The identity card issued by the appellant shows the engagement of 50 persons. These card were issued by the appellant much prior to the litigation. So its genuineness cannot be questioned which clearly shows that the appellant engaged 50 persons.
It is true that there was much delay in pronouncing the order by the authority. But the EPF Act has not prescribed any time limit within which the order has to be pronounced, so the delay does not touches the merits of the order.
No infirmity is noticed in the Order of the authority. Hence order. The appeal is dismissed.
The order of the authority is hereby confirmed.
In light of this finding of fact recorded by PF Authority while exercising powers under sec. 7A of Act which has been confirmed by appellate tribunal, according to my opinion, either of authority has not committed any error in deciding question under section 7A of PF Act. PF Authority has rightly discussed entire evidence produced by both parties and also gave reasons in support of his conclusion.
This Court is having limited jurisdiction under Article 227 of Constitution of India. This Court cannot act as an appellate court for correcting errors in the decision of subordinate courts or tribunals but is having mere powers of superintendence to be used to keep them within bounds of their authority. Recently apex court has considered scope of Article 227 of Constitution of India in case of State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March 2010.
The relevant Para 22 to 29 are quoted as under:
22.
The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.
23. More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
24. This court placed reliance on Nagendra Nath's case in a subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895. The court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority.
25. This court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 . The court observed as under:-
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority,"
and not to correct an error apparent on the face of the record, much less an error of law. for this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
This court again clearly reiterated the legal position in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
27. A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
28.In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 this court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits.
29. This court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit.
Recently, the Apex Court has examined similar aspect in the case of Harjinder Singh v. Punjab State Warehousing Corporation reported in 2010 AIR SCW page 1357. Relevant observations are in Para.10, 11 are quoted as under :
We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003 (6) SCC 675. In Syed Yakoob s case, this Court delineated the scope of the writ of certiorari in the following words:
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955 (1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168).
It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.
11.
In Surya Dev Rai s case, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions:
(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
In view of aforesaid observations made by apex court, while exercising power under Article 227 of Constitution of India, this court cannot disturb finding of fact decided by subordinate authority. In facts of this case, continuity of employment by management or for that matter, continuity of business itself not being in dispute, the only crucial consideration for applicability of Act would be the fact of employment strength as envisaged under section 1 (3) of the Act. As per section 1(3)(a) of the Act, the provisions of EPF Act become applicable to an establishment which is a factory engaged in any industry as specified in Schedule 1 of the Act and employing 20 or more persons and that aspect has been rightly appreciated by PF Authority considering identity card register which mention date of joining and date of leaving in respect to employees engaged by establishment after 1st April, 1986, which has been submitted by establishment. The status of employees listed in union's complaint as clarified by establishment has also been rightly appreciated by PF Authority. Thereafter, over all position has been discussed while scrutinizing list by PF Authority and has come to conclusion that the Act is a piece of beneficial social legislation enacted by legislature with a view to extend social security benefits to poor workers. PF Authority has considered substantive evidence and documents brought on record for making applicable the Act with effect from the date with which they should have come into force and to extend consequential benefits to concerned employees. Therefore, contentions raised by learned Advocate Mr. Buch cannot be accepted as this court cannot reappreciate same facts or documents which have been appreciated by PF Authority and thereafter reappreciated in appeal by Appellate Tribunal. This Court cannot act as an appellate authority over decision of two subordinate authorities. There are concurrent finding of fact examined by two subordinate authorities based on record. PF Authority has rightly appreciated evidence on record and in support of its conclusion, independent reason has been given by PF Authority, which has been confirmed by appellate tribunal. Therefore, it cannot be considered that finding or reason given by PF Authority is baseless or perverse or arbitrary and contrary to facts on record. Therefore contentions raised by learned Advocate Mr. Buch cannot be accepted. Hence, rejected. According to my opinion, no error has been committed either by PF Authority or appellate tribunal in passing orders which are under challenge which would require interference of this Court under Article 227 of Constitution of India and, therefore there is no substance in this petition and therefore this petition is dismissed.
(H.K. Rathod,J.) Vyas Top