Calcutta High Court (Appellete Side)
M/S. Bharat Battery Manufacturing Co. ... vs Regional Provident Fund ... on 3 April, 2014
Author: Samapti Chatterjee
Bench: Pranab Kumar Chattopadhyay, Samapti Chatterjee
1
IN THE HIGH COURT AT CLACUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Samapti Chatterjee
F.M.A. 317 of 2013
M/s. Bharat Battery Manufacturing Co. Ltd. & Another.
-Vs-
Regional Provident Fund Commissioner-II & OtherS.
For the Appellants : Mr. Sardar Amjad Ali. Senior
Advocate
Mr. Subir Sabud.
For the Respondents Mr. S. C. Prasad
Heard on : 03.04.2014,
Judgment on : 03.04.2014
Pranab Kumar Chattopadhyay, J.
This appeal has been preferred assailing the
judgment and order dated 4th July, 2012 whereby a
learned Judge of this Court was pleased to dismiss
the writ petition filed by the appellant herein on
merits. While dismissing the writ petition the
learned Single Judge specifically held that most of
the allegations made by the respondents-Employees
Provident Fund Organisation authorities in the show
cause notice were admitted in the reply of the
appellant herein.
2
Going through the records we find that the
respondent no. 4 herein issued a show cause notice
to the appellant on 1st April, 2010. In the said show
cause notice certain allegations were made with
regard to functioning of the Board of Trustees and
the Establishment and the irregularities observed by
the respondent authorities were also mentioned in
the said show cause notice. The appellant herein
submitted a detailed reply in answer to the said
show cause notice. Thereafter, the respondent-
Regional Provident Fund Commissioner passed the
impugned order dated 6th October, 2010 wherein it has
been mentioned that the reply submitted by the
appellant herein was not satisfactory at all.
The relevant extracts from the aforesaid order
dated 6th October, 2010 are set out hereunder:
"Employees' Provident Fund Organisation
(Ministry of Labour: Govt. of India)
Sub-Regional Office
44, Park Street : 7th & 8th Floor
Kolkata -700016
No. SRO/PRB/WB/413 & 5667/EX/474
Dated:06.10.2010
O R D E R
WHEREAS M/s. Bharat Battery Manufacturing Company Pvt. Ltd. (hereinafter referrred to as the Establishment) is covered under the E.P.F. & M.P. Act. 1952 (hereinafter rerferred to as the Act) has been allotted P.F. Code No. WB/413 & 5667 and has been granted relaxation u/p 79 of the E.P.F. Scheme, 1952 from the provisions of the said Scheme subject to conditions governing such relaxation.
Whereas irregularities were observed in the functioning of B.O.T. & Establishment.
AND whereas a Show Cause Notice was issued vide this office letter no.SRO/PRB/WB/413 & 5667/EX/75 dated 01.04.2010 regarding the irregularities.
However, on receipt of the reply from the Establishment dt. 16.04.2010 the same has been scrutinised and is not found to be satisfactory at all and deficiencies are noticed viz.
3AND whereas the monthly/yearly return in Appendix-A & B respectively submitted belatedly.
AND whereas the F-7(PS)/F-8(PS) submitted belatedly.
AND whereas statutory dues for the period from 4/2008 to 9/2008 paid belatedly.
AND whereas there was short payment in 2008-09 which was paid belatedly.
AND whereas BOT retained un-inested Cash and Bank balance as on 31.03.2009 of Rs. 8,33,354.79.
AND whereas PF benefit have not been extended to some employees.
AND whereas investments are not made within two weeks from receipt of money by the BOT.
Now, therefore in consideration of above the relaxation granted u/p 79 of the Scheme to the Establishment is hereby withdrawn with effect from 01.11.2010 as the Establishment failed to comply the conditions governing grant of exemption u/s. 17 of the E.P.F.Act read with Para 27AA of the Scheme and the conditions governing grant of relaxation.
Therefore, the Establishment is directed to comply as an un-exempted Estt. Under the provisions of the Act & Scheme w.e.f. 01.11.2010.
.......................................................................................................................................... ......................................................................................................................................................... ......................................................................................................................................................... .............................................................
[Sudeepta Ghosh]
Regional Provident Fund
Commissioner-II."
Mr. Ali, learned senior counsel representing
the appellant submits that the respondent-Regional Provident Fund Commissioner did not assign any reason indicating why the reply submitted by the appellant herein was not satisfactory.
Referring to the impugned order dated 6th October, 2010, Mr. Ali submits that the charges mentioned in the show cause notice have only been reiterated as the grounds for not accepting the 4 reply of the appellant in answer to the show cause notice as satisfactory.
Mr. Ali also submits that appropriate explanations and reasons were duly furnished in answer to the show cause notice and the respondent- Regional Provident Fund Commissioner did not consider the said reply in an appropriate manner while coming to the specific conclusion that the said reply of the appellant was not at all satisfactory in view of the deficiencies although the said deficiencies were not explained and/or mentioned apart from reiterating the charges mentioned in the show cause notice.
Mr. Prasad, learned advocate of the respondent authorities referred to the text of the impugned judgment and order under appeal passed by the learned Single Judge and tried to justify the decision of the respondent-Regional Provident Fund Commissioner. Mr. Prasad further submits that the reasons assigned by the respondent authorities cannot be improved further at this stage.
On examination of the impugned judgment and order under appeal we find that the learned Single Judge while deciding the writ petition did not consider the aforesaid aspect and erroneously observed that most of the allegations made in the show cause notice were admitted by the appellant herein, which was not even the claim of the respondent authorities and was also not the basis of the impugned order passed by the Regional Provident Fund Commissioner.
5For the aforementioned reasons, we are of the opinion that the impugned order dated 6th October, 2010 passed by the respondent-Regional Provident Fund Commissioner cannot be sustained in the eye of law and the same is accordingly quashed.
The impugned judgment and order under appeal passed by the learned Single Judge also cannot be sustained for the reasons mentioned hereinabove and the same is therefore, set aside.
However, we make it clear that quashing of the impugned order dated 6thOctober,2010 will not prevent the respondent authorities from proceeding against the appellant herein de novo on the basis of proper materials and upon observing the prescribed procedure under the statute.
This appeal, therefore, stands allowed without any order as to costs.
Let a photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the learned advocate appearing for the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] Samapti Chatterjee, J.
I agree. [SAMAPTI CHATTERJEE, J.] akd