Calcutta High Court (Appellete Side)
Ac Damodar Valley Corporation vs Regional Provident Fund Commissioner & ... on 10 December, 2013
Author: Harish Tandon
Bench: Harish Tandon
1
Court 10.12.2013 W.P. 35799 (W) of 2013
No.
22
Sl 38
Ac Damodar Valley Corporation
-vs-
Regional Provident Fund Commissioner & Ors
Mr. Dipak Kumar Ghosh
Mr. Ranjay De ... For Petitioner
Mr. S.C. Prasad ... For Respondents No. 1 to 3
The order passed under Section 7A of the Employees Provident fund and Miscellaneous Provisions Act, 1952 (EPF Act) is the subject matter of challenge in this writ petition.
Damodar Valley Corporation, the petitioner herein, admittedly engaged contractor for executing the work of maintenance and operation of the entire Fire Hydrant system, Pumps, Fire detection system in and around DVC Towers Building. One of the terms and conditions, as would appear from the said work order, is that the contractor has to comply with all the statutory laws and rules, including EPF rules, during the course of execution of the work.
The EPF authority initiated a proceedings under Section 7A of the EPF Act on the basis of the complaint made by the DVC Contractors Workers Union relating to default in payment of the employees' Provident Fund and allied dues.
Initially a final order, under Section 7A of the EPF Act, was passed which was assailed by the private respondent before this Court on the plea that the report, which forms the foundation of the said final order, was neither served nor was ever shown to the private respondent.
This Court set aside the said order and directed the authorities to consider the matter afresh after supplying copy of the said report.
2The petitioner challenges the said order on two fold grounds; firstly, the proceedings was not initiated against the petitioner and, therefore, to provide opportunity of hearing did not arise and thus violation of the principles of natural justice also did not arise. Secondly, recovery can be made against an employer, as defined under the EPF Act, and for taking steps in a proper manner, the statutory authority has to adhere to the procedure provided therein and cannot deviate therefrom.
According to the EPF Authority, the proceedings was initiated against the establishment wherein the DVC is also shown as a party and an opportunity to participate in the proceeding was given and, therefore, the allegation of the petitioner that there has been a clear violation of natural justice is incorrect.
Para 30 of the Employees Provident Fund Scheme 1952 casts a direct responsibility on the principle employer to pay both the contributions payable by himself directly or by or through a contractor and also administrative charges.
According to the petitioner, since proceedings has not been initiated under para 30 of the said Scheme, the order passed by the authority is vitiated and not sustainable. The Scheme is not challenged and/or assailed in this writ petition being not in conformity with the substantive statute.
This Court, therefore, does not find that any prima facie case at all is made out warranting an interim order to be passed at this stage.
The EPF authority, who is represented today, says that it initially tried to attach the bank account of the private respondent but there is no fund lying therein and the petitioner, being the principal employer, is statutorily responsible for payment of the dues under the said Scheme and, therefore, the authorities have 3 proceeded to recover the said amount.
This Court, therefore, feels that this matter should be considered upon exchange of affidavits.
Let affidavit-in-opposition be filed within one week after reopening of this Court following Christmas Vacation and reply, if any, be filed within a week thereafter.
Let this matter appear in the supplementary list under the heading 'For Orders' two weeks after reopening of this Court following Christmas Vacation.
The petitioner produces the postal article, which was sent to the private respondent, containing the remark 'Refused'. This Court, therefore, presumes that the service has been effected upon the private respondent and the writ petition is ready as regards service, so far as the private respondent is concerned.
This Court directs the petitioner to cause notice upon the private respondent intimating the order passed herein and shall file affidavit-of-service on the returnable date.
Put up the matter as directed.
(Harish Tandon, J.)