Calcutta High Court (Appellete Side)
Hindustan Steelworks Construction ... vs Regional Provident Fund Commissioner ... on 13 August, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Tapash Mookherjee
A.S.T. 365 of 2014
(ASTA 265 of 2014)
With
W.P. No.22389 (W) of 2014
Hindustan Steelworks Construction Limited
versus
Regional Provident Fund Commissioner (I)
For the Writ Petitioner/ : Mr. Arijit Chowdhury,
Appellant Mr. Arunava Ghosh,
Mr. Ashoke Dhar,
Mr. Soumya Majumdar,
Ms. Sarmistha Dhar,
Mr. Somnath Roy.
For the Respondent : Mr. Shiv Chandra Prasad.
Judgement On : 13-08-2014.
Jyotirmay Bhattacharya, J. : This mandamus appeal is directed against an
order passed by a Learned Single Judge of this Court on 7th August, 2014 in
W.P.No. 22389(W) of 2014 by which the interim relief which was prayed for by
the writ petitioner was refused by the Learned Single Judge. Direction was given
to the parties for filing affidavits. The writ petition was directed to be listed for
final disposal after exchange of affidavits between the parties.
The legality and/or propriety of the said order of the Learned Single Judge
of this Court has been challenged by the writ petitioner/appellant. In case the
question which is raised in this appeal is decided by this Court, then there will
be nothing left to be considered by the Writ Court in the pending writ petition. As
such, we are requested by the learned counsel appearing for the parties to decide
the appeal as well as the writ petition itself. Accordingly, we have considered the
instant appeal as well as the writ petition.
Heard the learned counsel of the parties. Considered the materials on
record.
A question was raised in connection with a proceeding under Section 7A of
the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 as to
whether service of summons to the witnesses can be effected by the Regional
Provident Fund Commissioner ?
It is alleged by the appellant that the Regional Provident Fund
Commissioner, instead of discharging his responsibility of effecting service of
summons upon the witnesses for procuring their attendance before him for
giving evidence in connection with the said proceeding, directed the writ
petitioner to effect service of summons upon the witnesses for ensuring their
attendance before the Regional Provident Fund Commissioner for giving evidence
and/or for production of documents in the said proceeding. This part of the
order passed by the Regional Provident Fund Commissioner (I) on 7th July, 2014
appearing at page 78 of the Stay application is under challenge in the writ
petition.
We are informed by Mr. Chowdhury, learned senior counsel appearing for
the appellant that the names of the witnesses whom his client wants to examine
in connection with the said proceeding have already been disclosed before the
Regional Provident Fund Commissioner (I).
By relying upon a decision of the Hon'ble Supreme Court in the case of
Food Corporation of India Vs. Provident Fund Commissioner & Ors. reported in
(1990) 1 SCC 68, Mr. Chowdhury submits that it is the responsibility of the
Commissioner to summon the named witnesses of the petitioner for giving
evidence and/or for production of documents in connection with the said
proceedings. He thus invited us to interfere with the impugned order passed by
the Commissioner.
In this context, we have considered the said decision of the Hon'ble
Supreme Court wherein it was held as follows :-
"9. It will be seen from the above provisions that the Commissioner is authorised
to enforce attendance in person and also to examine any person on oath. He has
the power requiring the discovery and production of documents. This power was
given to the Commissioner to decide not abstract questions of law, but only to
determine actual concrete differences in payment of contribution and other dues
by identifying the workmen. The Commissioner should exercise all his powers to
collect all evidence and collate all material before coming to proper conclusion.
That is the legal duty of the Commissioner. It would be failure to exercise the
jurisdiction particularly when a party to the proceedings requests for summoning
evidence from a particular person.
After considering the said decision, we have no hesitation to hold that the
service of summons upon the witnesses for ensuring their presence before the
Regional Provident Fund Commissioner (I) either for recording their evidence or
for production of documents by them, is the duty of the Commissioner.
Now a question has cropped up as to how such duty is to be discharged by
the Commissioner ?
Such duty, in our considered view, should be discharged in the light of the
provision contained in Section 7A(2) of the said Act which provides that the
provisions contained in the Civil Procedure Code relating to enforcing the
attendance of any person or examining him on oath will apply for procuring the
attendance of the witness in connection with such proceeding under Section 7A
of the said Act. In this connection, let us now consider the relevant provisions of
the Civil Procedure Code.
Service of summons upon the witnesses for procuring their presence for
giving evidence and/or for production of documents is dealt with under Order
XVI Rule 7-Rule 10 of the Civil Procedure Code. It is provided therein that the
Court may, on the application of any party for the issue of summons for the
attendance of any person, permit such party to effect service of such summons
on such person and shall, in such a case, deliver the summons to such party for
service and in case the service of such summons upon the witnesses cannot be
effected by the party for any reason whatsoever then the Court may also on the
application of the party, re-issue such summons to be served by the Court in the
same manner as service of summons is effected upon the defendant.
In our view when the writ petitioner/appellant itself has come forward to
shorten the procedural delay which may be caused in the process of effecting
service of summons upon the witnesses in case service is sought to be effected
by the appellant itself and invites the Regional Provident Fund Commissioner (I)
for effecting such service of summons upon the named witnesses of the writ
petitioner, we feel that the proceeding can be expedited if service of summons is
effected upon those witnesses by the Commissioner. Though we do not find any
apparent illegality in this part of the impugned order, but we feel that the
process can be expedited if we accept the suggestion of Mr. Chowdhury regarding
service of summons upon the witnesses by Court.
As such, we dispose of this appeal and the writ petition by directing the
writ petitioner/appellant to furnish the names and other particulars including
the complete postal addresses of the witnesses whom it wants to examine in
connection with the said proceedings to the Regional Provident Fund
Commissioner (I) positively within a period of two weeks from date and in the
event such full particulars of the witnesses are furnished by the writ
petitioner/appellant with the Regional Provident Fund Commissioner (I) within
the period as fixed above, the Regional Provident Fund Commissioner (I) will take
all necessary steps for effecting service of summons upon those named witnesses
of the writ petitioner and in case the witnesses do not appear in spite of such
service, then the Commissioner will also take all necessary steps for procuring
their presence before him by following the provision contained in Order XVI Rule
10 of the Civil Procedure Code with this rider that in the event the writ
petitioner/appellant fails to furnish all those required particulars of their
witnesses with the Regional Provident Fund Commissioner (I) within the time as
fixed above, the Regional Provident Fund Commissioner (I) will refuse to issue
any summons for procuring the attendance of the witnesses in connection with
the said proceeding and under such circumstances the only option which will be
left open to the writ petitioner/appellant for procuring their presence, is by
following the provision contained in Order XVI Rule 7 of the Civil Procedure
Code.
The order of the Regional Provident Fund Commissioner (I) dated 7th July,
2014 appearing at page 78 of the Stay application stands modified to the above
extent. As a result, the penal provision for non-compliance of the Commissioner's
direction regarding service of summons upon the witnesses as provided in this
part of the impugned order will remain ineffective subject to compliance of our
direction given above with regard to service by the appellant.
The appeal and the writ petition being W.P. No. 22389(W) of 2014 thus
stand disposed of with the above observations.
Re: ASTA 265 of 2014 (Stay)
In view of disposal of the appeal in the manner as aforesaid, no further
order need be passed on the stay application. The stay application being ASTA
265 of 2014 is thus deemed to be disposed of.
Urgent photostat certified copy of this order, if applied for, be furnished to
the applicant as early as possible.
(JYOTIRMAY BHATTACHARYA, J.)
Tapash Mookherjee, J. :
I agree.
( TAPASH MOOKHERJEE, J. ) dc.