Rajasthan High Court - Jaipur
Vardhman Polymers Pvt. Ltd vs Regional Provident Fund ... on 10 September, 2021
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 3301/2020
Vardhman Polymers Pvt. Ltd., Gram Dadhar, Rajgarh Road, Alwar
Through Its Director Shri Ashok Kumar Jain S/o Late Shri Jayanti
Prasad Jain, R/o Village Dadhar, Rajgarh Road, Alwar, Rajasthan.
----Petitioner
Versus
Regional Provident Fund Commissioner-I, Employees Provident
Fund Organization, Regional Office, Nidhi Bhawan, Jyoti Nagar,
Jaipur, Rajasthan
----Respondent
For Petitioner(s) : Mr. Himanshu Jain.
For Respondent(s) : Mr. Deepak Goyal.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
10/09/2021
This writ petition has been filed by the petitioner aggrieved against the order dated 16/7/2019 (Annex.1) passed by the Employees Provident Fund Appellate Tribunal, Jaipur ('the Tribunal'), whereby, the appeal filed by the petitioner under the provisions of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 ('the Act') has been rejected as not maintainable.
The authority under the Act initiated proceedings against the petitioner Company under Section 7A of the Act and came to the conclusion that as the petitioner was engaging 20 employees in its establishment, the provisions of the Act were applicable. The petitioner company disputed the issue of coverage as well as assessment of dues, however, by order dated 2/3/2009 (Annex.2), (Downloaded on 17/09/2021 at 09:12:03 PM) (2 of 6) [CW-3301/2020] the assessment order was issued determining the liability of the petitioner company.
Aggrieved against the said order, the petitioner company filed appeal before the Tribunal. The appeal came to be decided by order dated 19/2/2010 (Annex.3), with the following direction:
"Hence ordered. The appeal is allowed and the matter is remanded to the authority to ascertain the strength of employees by giving opportunity to the employer to place his case and the appellant is directed to appear within one month from the date of this order.
Enquiry has to be done by officer who had not conducted inspection of establishment."
Again an order post remand came to be passed on 20/5/2013 (Annex.4), whereby, it was held that the establishment was rightly covered under the provisions of the Act w.e.f. 22/4/2004 and require compliance.
Again an appeal was filed by the petitioner company, which came to be decided by order dated 16/8/2016 with the following direction:
"10. Considering all the facts of the case, by setting aside impugned order dated 20.05.2013, matter is remanded back to respondent for fresh consideration. Respondent is directed to examine those four persons (whose name mentioned in para No. 6.10 at 7 of the appeal) to ascertain whether they actually worked in the appellant establishment or not. Further respondent is directed to reconsider the Scheduled Head for coverage of appellant establishment. File be consigned to record room after due compliance."
Pursuant to second order of remand dated 16/8/2016, the authority again passed order dated 31/7/2018 (Annex.7), wherein, it was inter alia ordered as under:
"Therefore having considered all aspect of the case, I am inclined to agree with findings of previous assessing officers and on Enforcement Officer's report as well for the reasons cited therein and accordingly uphold that establishment is coverable w.e.f. 22.04.2004.(Downloaded on 17/09/2021 at 09:12:03 PM)
(3 of 6) [CW-3301/2020] Now, I shall proceed with determination of dues. Separate notice be issued for that fixing new date of hearing."
The petitioner, aggrieved by the order dated 31/7/2018 (Annex.7), again filed appeal. The appellate authority by the impugned order, relying on the judgment of this Court in Autogrinx Engineers Pvt. Ltd. vs. Regional Provident Fund Commissioner : 2004 (2) WLC 681, came to the conclusion that as there was no order of determination of amount of dues passed under clause (b) of sub-section (1) of Section 7A of the Act, the appeal was premature and consequently dismissed the same by observing as under:
"The out-come of this discussion clearly leads to the conclusion that unless there is an order of determination of amount of dues passed under clause (b) of sub-sec.(1) of Section 7 of the Act, which is subsequent to the order of coverage or applicability of the Act passed under lause (a) of sub-Sec.(1) of Sec.7 of the Act, 1952, the appeal is premature and cannot be admitted for consideration by this Tribunal. Thus, the appeal is not admitted and dismissed for the reasons mentioned above. Order pronounced. May be consigned to records after due formalities."
It is submitted by learned counsel for the petitioner that the Tribunal was not justified in dismissing the appeal as premature inasmuch as the determination of dues was initially made by order dated 2/3/2009 (Annex.2) and despite the fact that the matter was remanded back twice by the Tribunal, the determination of dues remained unaltered and as such, the dismissal of the appeal for lack of determination of dues relying on the judgment of this Court in the case of Autogrinx Engineers (supra) is not justified.
It was submitted that the Tribunal by its order dated 19/2/2010 while remanding the matter only confined the same to ascertain the strength of employees and by second order dated 16/8/2016 directed the respondents to examine whether the four (Downloaded on 17/09/2021 at 09:12:03 PM) (4 of 6) [CW-3301/2020] persons, whose names were indicated in the order, had actually worked in the appellant establishment or not and that the determination of dues was not disturbed at any stage and in those circumstances, the dismissal of the appeal by the Tribunal as premature is not justified and, therefore, the order impugned deserves to be set aside and the matter be remanded back to the Tribunal for deciding the appeal on merits.
Learned counsel for the respondent vehemently opposed the submissions. It was submitted that the Tribunal was justified in rejecting the appeal as premature inasmuch as the authority while passing the order dated 31/7/2018 has clearly indicated that it shall proceed with determination of dues and ordered for issuance of separate notice for fixing the new date and as such for lack of determination of dues the appeal was not maintainable and consequently the writ petition also deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The provision relevant for the present purpose reads as under:
"7A. Determination of moneys due from employers - (1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order, -
(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and
(b) determine the amount due from any employer under any provision of this Act, the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary."
A perusal of the above provision reveals that in a case where a dispute arises regarding the applicability of the Act to an (Downloaded on 17/09/2021 at 09:12:03 PM) (5 of 6) [CW-3301/2020] establishment, the authorities under the Act may by order decide the dispute and determine the amount due from any establishment under the provisions of the Act.
As noticed hereinbefore, the initial determination took place on 2/5/2009 (Annex.2) regarding the applicability as well as the dues, which was a composite order. The Tribunal by its order dated 19/2/2010, wherein, the determination was challenged inter alia on the ground that officer, who inspected the establishment had decided the dispute and that the Act was not applicable, while remanding the matter for ascertaining the strength of employees by giving opportunity to the petitioner also ordered that inquiry has to be done by an officer, who had not conducted the inspection of establishment. The Tribunal also observed that no man should be a judge of his own case is the basic principle of law and relied on the judgment in A.U.Kureshi vs. High Court of Gujarat : (2009) 11 SCC 84.
Once the challenge to the determination made was inter alia on the basis that an officer, who had inspected the establishment, could not have decided the dispute, which objection was upheld by the Tribunal and a specific direction was given that enquiry has to be conducted by an officer, who had not conducted the inspection of the establishment, the order dated 2/3/2009 now cannot be relied on by the petitioner for the purpose of claiming that the determination of dues made by the said order continues to be valid, in case the Act is applicable to the petitioner.
The entire foundation of the present writ petition based on the determination of dues made by order dated 2/3/2009 is wholly non-existent, looking to the nature of order passed by the Tribunal.
(Downloaded on 17/09/2021 at 09:12:03 PM)
(6 of 6) [CW-3301/2020]
Besides the above, a look at the provisions quoted
hereinbefore would reveal that the determination of dues is consequential to the applicability of the Act to the establishment and once the aspect of applicability has been remanded back by the Tribunal to the Regional Authority, the consequential determination of dues cannot stand.
This Court in the case of Autogrinx Engineers (supra) while deciding the issue pertaining to maintainability of appeal before the Tribunal, inter alia laid down as under:
"18. We are inconformity with the decision of the learned Single Judge that the clauses (a) and (b) of sub- section (1) of Section 7-A of the Act, 1952 are not inseparable and against the order passed under clauses
(a) and (b) of sub-section (1) of Section 7-A of the Act, 1952 review or appeal is entertainable and not against the order passed under clause (a) or clause (b) of sub-section (1) of Section 7-A of the Act, 1952."
As the Regional Provident Fund Commissioner by its order dated 31/7/2018, while passing the order has rightly indicated that he shall determine the dues, on coming to the conclusion that the Act was applicable to the establishment, the Tribunal in its impugned order dated 16/7/2019 (Annex.1) was justified in coming to the conclusion that the appeal was not maintainable as laid down by this Court in the case of Autogrinx Engineers (supra).
In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.
(ARUN BHANSALI),J baweja/74 (Downloaded on 17/09/2021 at 09:12:03 PM) Powered by TCPDF (www.tcpdf.org)