Madras High Court
M/S.Thaigaraja Mills(P) Ltd vs The Presiding Officer on 14 September, 2022
Author: S.Srimathy
Bench: S.Srimathy
W.P.(MD)No.5359 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated :- 14.09.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD)No.5359 of 2013
and M.P(MD).Nos.1 of 2013 and 1 of 2014
M/s.Thaigaraja Mills(P) Ltd.,
Unit III, Kalathupatti,
Nilakottai,
Dindigul District
Rep. by its General Manager (Finance) ... Petitioner
Vs.
1.The Presiding Officer,
Employees' Provident Fund Appellate Tribunal
4th Floor, Core 2, Scope Minar,
Laxmi Nagar,
New Delhi-110 092.
2.The Regional Provident Fund Commissioner-II,
Employees' Provident Fund Organization,
Regional Office,
No.2, Lady Doak College Road,
Madurai-625 002. ... Respondents
1/9
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.5359 of 2013
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, calling for the records relating to the impugned
order dated 08.03.2013 passed by the first respondent in A.T.A. No.418(13)2011
and received on 26.03.2013 and quash the same as illegal.
For Petitioner : Mr.M.E.Ilango
For Respondents : Tribunal for R1
Mr.R.Ravikumar for R2
ORDER
This Writ Petition has been filed to quash the impugned order dated 08.03.2013 passed by the first respondent in A.T.A. No.418(13)2011.
2. The petitioner is engaged in the manufacture and sale of yarn situated at Nilakottai, Dindigul District. The second respondent inspected the petitioner unit and has passed the order under Section 7A Act insisting that contribution has to be remitted in respect of the following heads viz., 2/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5359 of 2013 SL.No. Head of A/C 2008-2009 2009-2010 Total
1. Cotton Charges 27,34, 351.00 21,74,631.00 49,08,982.00
2. Labour Welfare 3,97,112.00 2,60,165.00 6,57,277.00
3. Building Repair 2,84,673.00 1,91,056.00 4,75,729.00 Maintenance
4. Accountancy 60,000.00 60,000.00 1,20,000.00 Fees
5. Ex.Gratia 22,50,000.00 22,77,000.00 45,27,000.00
6. Escaped Wages 21,36,368.00 26,91,191.00 48,27,589.00
7. EDLI 78,023
3. The petitioner has submitted his detailed explanation, after considering the explanation, the respondent had passed an order under Section 7(A) on 31.01.2011 and the second respondent has failed to assign any reason for rejecting the claim and the order is non speaking order. Aggrieved over, the petitioner preferred an appeal before the first respondent under Section 7-I of the Act. At the time of admission of the appeal, the first respondent by an order dated 01.03.2011 granted stay of the impugned order, on condition to deposit 40% of the demand and the same was duly complied with by the petitioner. 3/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5359 of 2013
4. Therefore, the first respondent without appreciating the factual as well as legal position dismissed the appeal on 08.03.2013. Aggrieved over the same, the present Writ Petition has been filed.
5. While hearing this petition on 04.04.2013, this Court directed the petitioner to deposists Rs.8,00,000/-(Rupees Eight Lakhs only) before the second respondent within a period of four (4) weeks from the date of receipt of a copy of this order. The learned counsel for the petitioenr submitted that the above said condition also duly complied with by the petitioner.
6.The contention of the petitioner is that daily coolies are not exclusively engaged by the petitioner and they would work in different establishments, on the basis of availability of work and that the nature of work is only casual and there is no permanent employer and employee relationship between the petitioner and these daily coolies.
4/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5359 of 2013
7.The first respondent erred in failing to consider the ground raised by the petitioner as to the demand of contribution in respect of compensation paid under Voluntary Retirement Scheme and ex-gratia paid to “scheme workers”. A lumpsum payment is given to the employees as ex-gratia, who left the employment after completing the scheme in which they worked and also compensation has been paid to workmen under the Voluntary Retirement Scheme.
8. As per the VRS scheme, whenever, the employee is leaving the job, some amount will be paid to the employee in lump sum. For example, if any unmarried lady was engaged as an employee, at the time of her marriage, some amount will be paid to the above said person and that amount has been included while calculating the amount under 7(A) which can neither be treated as basic wages nor as dearness allowance.
9. As far as the apprentices employed is concerned, the petitioner establishment is providing training to the apprentices under “Standing Orders” and they are paid stipend. The petitioner has engaged persons who would impart 5/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5359 of 2013 training to the apprentices as per the syllabus prescribed. Hence apprentices should not be considered as regular employees.
10. In the counter affidavit, the learned counsel for the second respondent submitted that the contention of the petitioner that daily coolies are not directly employed is denied as false and misleading. As per the Section 2(f) of the Act, a person working in or in connection with the work of the establishment and earning emoluments for the same is to be treated as the employees of the establishment. The second respondent has determined the PF contribution payable by the petitioner except the contribution for EDLI benefits as the petitioner establishment is exempted from EDLI Scheme.
11. After hearing rival submissions and the after perusal of documents, it is seen that the respondents have not perused any of the records submitted by the petitioner establishments. Considering the facts and the circumstance of this case, this Court is inclined to set aside the order dated 08.03.2013 passed by the first respondent in A.T.A.No.418(13)2011 and also the order passed by the EPF 6/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5359 of 2013 organisation. The matter is remitted back to the concerned EPF authority for fresh consideration, the petitioner shall produce the entire records before the concerned authority and concerned authority shall pass appropriate order within a period of three months from the date of receipt of a copy of this order.
In the result, this Writ Petition is allowed. Consequently, the connected miscellaneous petitions are closed.
14.09.2022 Index : Yes / No Internet : Yes tta 7/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5359 of 2013 To
1.The Presiding Officer, Employees' Provident Fund Appellate Tribunal 4th Floor, Core 2, Scope Minar, Laxmi Nagar, New Delhi-110 092.
2.The Regional Provident Fund Commissioner-II, Employees' Provident Fund Organization, Regional Office, No.2, Lady Doak College Road, Madurai-625 002.
8/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5359 of 2013 S.SRIMATHY, J tta W.P.(MD)No.5359 of 2013 14.09.2022 9/9 https://www.mhc.tn.gov.in/judis