Calcutta High Court (Appellete Side)
Madhab Shaw & Ors vs Radhey Shyam Sharma & Ors on 24 April, 2012
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 3914 (W) of 2009
Madhab Shaw & Ors.
v.
Radhey Shyam Sharma & Ors.
Mr Soumya Majumdar and Mr Amit Ranjan Roy, advocates, for
the petitioners. Mr Ayan Banerjee, advocate, for the first
respondent. Mr A. Sengupta, advocate, for FCI. Mr S.C. Prasad,
advocate, for the P.F. Authority.
Heard on: April 24, 2012.
Judgment on: April 24, 2012.
The Court:- The two hundred seventy-one petitioners in this WP under art.226 dated February 24, 2009 are questioning an order of the Employee's Provident Funds Appellate Tribunal ( in short EPFAT) dated August 18, 2008 (at p.182).
Food Corporation of India (in short FCI) is an establishment to which the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act) and the schemes made thereunder were applicable at the relevant point of time and are still applicable. Representative of some persons working through contractors in connection with the work of the establishment of FCI submitted a representation to the Assistant Provident Fund Commissioner (in short APFC) concerned that provident fund and other statutory dues payable for them were not deposited by the persons liable to deposit them.
Alleging inaction a WP was moved. This Court directed consideration of the representation. Accordingly the APFC, Regional Office, Kolkata initiated proceedings under s.7A of the Act against one M/s. Radhey Shyam Sharma. It was alleged that for engaging workers during the period from January 1986 to September 2002 in connection with the work of the establishment of FCI, Radhey Shyam, the contractor, was liable to pay provident fund and other allied dues not paid by it.
2In the proceedings the APFC passed the final order dated February 15, 2007 (at p.171) determining Radhey Shyam's liability. Feeling aggrieved, Radhey Sham filed an appeal under s.7I of the Act. By the impugned order the EPFAT allowed the appeal. The EPFAT has held that without making proper inquiry for identifying the persons whom FCI contractors engaged during the period in question for working in connection with the establishment of FCI, the APFC passed the order. The Tribunal, however, did not remand the matter.
The question, therefore, is whether the APFC passed the final order in the s.7A proceedings without making necessary inquiry for identifying the workers who were engaged by FCI contractors during the period from January 1986 to September 2002 in connection with the work of the establishment of FCI.
Counsel for the petitioners has conceded that the order does not reveal whether the APFC made necessary inquiry for identifying the workers who were engaged by FCI contractors during the period in question in connection with the work of the establishment of FCI.
Counsel for the provident fund organization has sought to justify the order of the APFC saying that the order was passed after examining the records produced by Radhey Shyam. He is not in a position to say whether the APFC admitted the records in question in evidence and took down oral evidence for identifying the persons who were engaged during the period in question by FCI contractors in connection with the work of the establishment of FCI.
Counsel for Radhey Shyam has submitted that it will not be incorrect to say that the APFC passed the order without making necessary inquiry for identifying the workers who were engaged during the period in question by FCI contractors in connection with the work of the establishment of FCI. His submission is that Radhey Shyam cannot be held responsible for the entire period, because, admittedly, during some portion 3 of the period, the persons concerned were engaged by some other FCI contractors for doing the same work for which Radhey Shyam had initially engaged them.
In my opinion, the EPFAT was justified in holding that the APFC passed the order dated February 15, 2007 without making necessary inquiry for identifying the persons for whose benefit the s.7A proceedings had been initiated. But the EPFAT finding deficiency in the inquiry made by the APFC did not say anything why it was not remanding the matter for fresh order after making necessary inquiry. In my opinion, the EPFAT was under an obligation to remand the matter for fresh order after making necessary inquiry.
An order under s.7A of the Act must be based on evidence taken down by the authority conducting the inquiry. For the purpose he must ask the Enforcement Officer to produce the seized records which are the fundament of his report leading to initiation of the s.7A proceedings, and give oral evidence in proof of the allegation of evasion. The authority is also under an obligation to call upon the principal employer, the contractor and the likely beneficiaries to produce all relevant records and give oral evidence so that he may make a detailed inquiry.
Documents admitted in evidence must form part of the records of the proceedings. After taking down evidence and giving opportunity of cross-examination to the parties interested, he has to pass the final order identifying the beneficiaries, the period during which they were engaged and determining the liability. These essential things are absent in the process through which the APFC passed the order dated February 15, 2007. I am, therefore, of the view that it is necessary to ask him to pass a fresh order after making a detailed inquiry.
For these reasons, I dispose of the WP ordering as follows. The order of the EPFAT dated August 18, 2008 quashing the order of the APFC dated February 15, 2007 is upheld with the 4 direction that the APFC shall pass a fresh s.7A order, after making necessary inquiry, within four months from the date this order is served on him. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.) ss.