Madras High Court
Golden Sunshine Services Llp vs Union Of India on 16 July, 2025
W.P.No.14989 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.07.2025
CORAM
THE HONOURABLE MR.JUSTICE P.DHANABAL
W.P.No.14989 of 2022
and W.M.P.Nos.14220 and 14221 of 2022
Golden Sunshine Services LLP,
Formerly known as
Burgundy Restaurants Private Limited,
Represented by its Managing Director
Mr.Vipin Sachdev .... Petitioner
Vs
1.Union of India
Ministry of Labour and Employment
represented by its Secretary,
Shram Shakti Bhawan,
Rafi Marg,
New Delhi.
2.The Regional Provident Fund Commissioner-I,
Chennai, Bavishya Nidhi Bhavan,
No.37, Royapettah High Road,
Royapettah, Chennai. .... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, for the issuance of Writ of Certiorari to call for the records in
relation to order No.CHN-1/D/26/TN/84290/Enf/Regl/2021 dated
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W.P.No.14989 of 2022
15.03.2022 passed by the 2nd respondent in proceedings under section 7B
of the Employees Provident Funds and Miscellaneous Provisions Act,
1952 and consequently quash the same as illegal, arbitrary and pass
orders.
For Petitioner : M/S.Rohini Ravikumar
For R1 : Mr.Ravi Meenakshisundaram
ORDER
This Writ Petition has been filed to quash the orders passed by the 2nd respondent in CHN-1/D/26/TN/84290/Enf/Regl/2021 dated 15.03.2022 under section 7B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.
2. The learned counsel for the petitioner would submit that the petitioner's company was incorporated on 11.01.2008 under the Companies Act and complied with the provisions of Employees Provident Funds and Miscellaneous Provisions Act with effect from September 2011. The current issue in this case is relating to coverage of one Rogar Charles Willson aka Chef Willi, who is a non Indian passport 2/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/07/2025 08:39:09 pm ) W.P.No.14989 of 2022 holder and a Director since inception in the petitioner's company. While so, an enquiry was initiated and conducted by the officials under section 7A of Employees Provident Funds and Miscellaneous Provisions Act, and they assessed Rs.35,16,696/- as dues vide order dated 16.12.2019. Against which, he preferred review petition under section 7B of Employees Provident Funds and Miscellaneous Provisions Act on 05.02.2020 and the said review was rejected without appreciating the facts of the case.
2.1. If an employee is classified as an International worker and Provident Fund contributions are payable in India, the Indian employer is required to make contributions under the EPF Act on the entire global income of such individuals. The said Rogar Charles Willson aka Chef Willi, holds Director identification Number (DIN) No.02655629 and his nationality is New Zealand. He was appointed as the Director on 27.05.2009. On 31.05.2014, he provided his resignation under section 168 of Companies Act. While so, the respondents 1 and 2 have wrongly initiated the action against the petitioner's company alleging that there are dues regarding the said employee. The main order was passed by one 3/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/07/2025 08:39:09 pm ) W.P.No.14989 of 2022 Salil Shankar on 16.12.2019 and thereafter he was transferred to head office. Thereafter, the present review order was passed on 15.03.2022 without discussing about the para 26B of the EPF Scheme. The 2nd respondent failed to take note that the Directors were not covered under the EPF Act. Moreover the High Court of Karnataka in batch of writ petitions No.18486 of 2012 vide order dated 25.04.2024 declared the para 83 of the Employees Provident Fund Scheme and para 43A of Employees pension scheme is ultra vires and violative of Article 14 of Constitution of India.
2.2. Therefore no question would arise about the contributions of EPF amount for the person namely Rogar Charles Willson aka Chef Willi. Moreover as per the scheme para 26B, both employer and employee shall be heard before passing the order in the matter. But in this case, the alleged employee namely Rogar Charles Willson aka Chef Willi was never summoned or heard by the authority before passing the impugned order. Therefore the order passed by the 2nd respondent is liable to be quashed.
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3. The learned counsel for the respondents would submit that the petitioner is a company where the employee namely Rogar Charles Willson aka Chef Willi who is international worker/employer, worked in the petitioner's company for the period from October 2008 to April 2015. An enquiry under section 7A of the Act was initiated and assessed a sum of Rs.35,16,696 as dues on account of omissions of wages vide 7A order dated 16.12.2019, in respect of the non enrolled employees. Since the employee was an international worker, they arrived the above said amount. Aggrieved by the said order, the petitioner preferred review under section 7B of the Act and an opportunity was given to the petitioner and thereafter the authority has passed reasoned order. Therefore there is no infirmity or perversity in the order passed by the 2nd respondent. Therefore the present writ petition is liable to be dismissed.
4. This Court heard both sides and perused the records.
5. In this case, there is no dispute that the alleged employee Rogar Charles Willson aka Chef Willi, who is an international worker belongs to New Zealand. According to the petitioner, he is not an employee, he is 5/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/07/2025 08:39:09 pm ) W.P.No.14989 of 2022 one of the Directors of the company; to that effect he has also produced the documents. But according to the 2nd respondent, he is not a Director, he is only employee of the petitioner's company. Therefore, enquiry under section 26B scheme was conducted. As per the enquiry, the said Rogar Charles Willson aka Chef Willi is an employee of the establishment and dues were assessed. Thereafter, the petitioner filed review petition and the same was also dismissed after hearing both the parties. Both parties participated in the enquiry proceedings under section 26B of the scheme and as per the order of the authority, it reveals that the said alleged employee Rogar Charles Willson aka Chef Willi was also appeared for the enquiry and he himself stated that he was a co- director in the establishment from the date of setting up along with Shalil Shankar and not an employee in the establishment. Inspite of that the authority has passed order holding that he was the employee of the petitioner's company. Therefore without any records the authority has passed the impugned order. More over, under para 83 of the Employees Provident Fund Scheme, only international workers were covered.
6. The High Court of Karnataka in the case of Stone Hill 6/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/07/2025 08:39:09 pm ) W.P.No.14989 of 2022 Education Foundation Vs. The Union of India, in W.P.No.18486 of 2012 etc., batch struck down para 83 of Employees Provident Fund scheme and held that para 43A of Employees Pension Scheme is violative of Article 14 and classification made is unreasonable and would repeal very intent of the Act. Therefore, the order passed by the authorities i.e., 2nd respondent by determining Employees Provident contributions amount for the international employee would not arise. Therefore, the order passed by the 2nd respondent in CHN- 1/D/26/TN/84290/Enf/Regl/2021 dated 15.03.2022 is liable to be quashed.
7. In the result this writ petition is allowed and the order passed by the 2nd respondent in CHN-1/D/26/TN/84290/Enf/Regl/2021 dated 15.03.2022 is quashed. No costs. Consequently, connected miscellaneous petitions are closed.
16.07.2025
Index : Yes/No
Neutral citation : Yes/No
mpa
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W.P.No.14989 of 2022
To
1.Union of India
Ministry of Labour and Employment
represented by its Secretary,
Shram Shakti Bhawan.
2.The Regional Provident Fund Commissioner-I, Chennai, Bavishya Nidhi Bhavan, No.37, Royapettah High Road, Royapettah, Chennai.
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mpa W.P. No.14989 of 2022 and W.M.P.Nos.14220 and 14221 of 2022 16.07.2025 9/9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/07/2025 08:39:09 pm )