Calcutta High Court (Appellete Side)
Dumdum Auxilluim Educational Society ... vs The Empoloyees P. F Organisation And Ors on 9 February, 2018
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1
Sl 10
09-02-2018
ct no. 12
s.d. W. P. 11927 (W) of 2012
with
CAN 960 OF 2018
Dumdum Auxilluim Educational Society and ors.
-versus-
The Empoloyees P. F Organisation and ors.
Mr. Sandip Kumar Bhattacharyya
Mr. Bhaskar Prsad Banerjee
...for the petitioners
Mr. S. C. Prosad
.....for the P. F. Authorities.
Ms. Madhumita Patra
Ms. Swarupa Ghosh
...for the respondent no. 11.
It is submitted that the respondent no. 11 has since expired on October 30, 2017 and her legal heirs have filed CAN 960 of 2018 to bring on record proceedings mentioned in paragraph 3 at page 6 of the writ petition. The substitution application is hereby allowed.
CAN 960 of 2018 is hereby and allowed and disposed of. 2 Leave is granted to the writ petitioners to incorporate the said persons in the records of the instant writ application in course of the day and in court today.
The writ petitioner school is aggrieved by a notice under Section 7A issued by the authorities under Employees Provident Fund and Miscellaneous Provision Act, 1952 in respect of a past accumulation before coverage upto March 5, 1982 and if past accumulation after the date of accumulation from March 6, 1982 to January 31, 1988.
The notice was dated 14th March, 2011.
It is, therefore, evident that the alleged lapse for which the notice under Section 7A was issued occurred well over 33 years ago.
The learned counsel appearing for the Provident Fund Authorities stated that he is empowered to do so under Section 14B of the aforesaid act.
Reference in this regard made to the decision of the Supreme Court in the case of Regional Provident Fund Commissioner -vs- K. T. Rolling Mills Pvt. Ltd reported in (1995) vol. 1 SCC 181 in paragraph 4 of the said judgement it was, inter alia, laid down that where a power is conferred on a statue without mentioning the period within which it can be invoked the same has to be done within a reasonable period.
3
In the said case, the delay in question was 12 years but came to the knowledge of the authorities 1 and ½ years prior to the issuance of the notice.
In the instant case, it is not clear when the complainant actually came to know of an alleged discrepancy in the amounts deposited by the school in her provident fund account. The incident admittedly relates to the year 1988 and even prior thereto.
In my opinion, therefore, the Provident Commissioner should have exercised appropriate discretion before launching proceedings under Section 14B and issuance of notice under Section 7A in aid thereof.
There is no explanation from any documents on record or proceedings to explain the delay in question. It is not reasonably expected that the employer is expected to either maintain records or have actually knowledge of matters that are well over 33 years old. In those circumstances, I am not satisfied that the proceedings have been initiated on fair reading of Section 14 B of the said Act. It is also evident that the dicta of the Hon'ble Supreme Court in the case followed by the authority in question in initiating the impugned proceedings. In those circumstances, Case No. R- NE/WB/26660/SRO /BKP/CC/Cir-12/558 dated 14-11-2011 allegedly under Section 7A and 7B of the Employees Provident and Miscellaneous Provisions Act, 1952 are hereby quashed. All orders 4 passed in aid of the above number proceedings shall stand set aside.
W. P. 119279W) of 2012 is hereby allowed.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Rajasekhar Mantha, J.)