Kerala High Court
The Central Board Of Trustees vs M/S.Tasty Nuts Industries on 9 July, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946
WP(C) NO. 17426 OF 2015
PETITIONER/S:
THE CENTRAL BOARD OF TRUSTEES, EPFO
EMPLOYEES PROVIDENT FUND ORGANISATION, REPRESENTED BY
THE ASSISTANT PROVIDENT FUND COMMISSIONER, SUB REGIONAL
OFFICE, CHINNAKKADA, KOLLAM
BY ADV SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENT/S:
1 M/S.TASTY NUTS INDUSTRIES
ODANAVATTOM, KOLLAM 691512, REPRESENTED BY THE MANAGING
PARTNER, MOHAMMED NOUFAL
2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
NEW DELHI
BY ADV MOHAN LAL B
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.07.2024, ALONG WITH WP(C).17494/2015, 17501/2015 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946
WP(C) NO. 17493 OF 2015
PETITIONER/S:
THE CENTRAL BOARD OF TRUSTEES
EMPLOYEES' PROVIDENT FUND ORGANISATION, REPRESENTED
BY THE ASSISTANT PROVIDENT FUND COMMISSIONER, SUB
REGIONAL OFFICE,CHINNAKKADA,KOLLAM.
BY ADV SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENT/S:
1 M/S.TASTY NUTS INDUSTRIES
PERAYAM, KOLLAM:673 113. REPRESENTED BY THE MANAGING
PARTNER, MOHAMMED NOUFAL.
2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
NEW DELHI,PIN:110 001.
BY ADV Mohan Lal B
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.07.2024, ALONG WITH WP(C).17494/2015, 17501/2015 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946
WP(C) NO. 17494 OF 2015
PETITIONER/S:
THE CENTRAL BOARD OF TRUSTEES
AGED 57 YEARS
EMPLOYEES' PROVIDENT FUND ORGANISATION, REPRESENTED
BY THE ASSISTANT PROVIDENT FUND COMMISSIONER, SUB
REGIONAL OFFICE,CHINNAKKADA,KOLLAM.
BY ADV SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENT/S:
1 M/S. TASTY NUTS INDUSTRIES
AMBALATHUMKALA,KOTTARAKKARA, KOLLAM:691
505,REPRESENTED BY THE MANAGING PARTNER, MOHAMMED
NOUFAL.
2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
NEW DELHI,PIN:110 001.
BY ADVS.
SRI.T.SETHUMADHAVAN SR.
SRI. JAYESH MOHAN KUMAR, SC, STATE BANK OF
TRAVANCORE
Mohan Lal B
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
ON 09.07.2024, ALONG WITH WP(C).17426/2015 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946
WP(C) NO. 17501 OF 2015
PETITIONER/S:
THE CENTRAL BOARD OF TRUSTEES, EMPLOYEES PROVIDENT
FUND ORGANISATION
EMPLOYEES' PROVIDENT FUND ORGANISATION, REPRESENTED
BY THE ASSISTANT PROVIDENT FUND COMMISSIONER, SUB
REGIONAL OFFICE,CHINNAKKADA,KOLLAM.
BY ADV SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENT/S:
1 M/S. TASTY NUTS INDUSTRIES
KAVANA,KOLLAM:673 113. REPRESENTED BY THE MANAGING
PARTNER MOHAMMED NOUFAL.
2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
NEW DELHI,PIN:110 001.
BY ADV Mohan Lal B
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.07.2024, ALONG WITH WP(C).17426/2015 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946
WP(C) NO. 26004 OF 2016
PETITIONER/S:
THE CENTRAL BOARD OF TRUSTEES
THE EMPLOYEES PROVIDENT FUND
ORGANISATION,REPRESENTED BY THE REGIONAL PROVIDENT
FUNDCOMMISSIONER (LEGAL), REGIONAL OFFICE,PATTOM,
THIRUVANANTHAPURAM -695 004.
BY ADV SRI.PIRAPPANCODE V.S.SUDHIR,SC,EPF ORGN
RESPONDENT/S:
1 M/S.AZZ PROPERTY MANAGEMENT SERVICES PVT.LTD.
SREE ASWATHY, T.C.9/734-01, RNP LANE,VELLAYAMBALAM,
THIRUVANANTHAPURAM-695 010.
2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
NEW DELHI.
BY ADV SRI.T.M.CHANDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09.07.2024, ALONG WITH WP(C).17426/2015 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016
6
JUDGMENT
[W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016] This batch of writ petitions has been filed impugning the orders passed by the Employees Provident Fund Tribunal, New Delhi in the appeals filed by the respondents against the order passed by the Regional Provident Fund Commissioner under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 ('the EPF Act' for brevity). The Tribunal in all the orders impugned in these writ petition has set aside the order passed by the Regional Provident Fund Commissioner under Section 7A of the EPF Act.
2.The Tribunal has held that the Commissioner is required to determine the outstanding PF liability by fairly conducting an enquiry. The Commissioner did not hold any enquiry regarding non enrollment of employee as contemplated in Paragraph 26B of the Employees Provident Fund Scheme,1952 ('the Scheme' for short). It was also held by the Tribunal that the determination of the dues is to be made on average basis whereas the Commissioner has assessed the dues on omitted wages, taking average wages per day per employee for the periods multiplying with the number of man- days per month, which is accepted for the purpose of calculation of welfare fund dues and ESI dues. This is legally not sustainable. The Commissioner can calculate and quantify contributions only on the W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 7 basis of wages actually drawn by the employees whether paid on weekly, fortnightly or on monthly basis. But there cannot be any assessment of EPF contribution on the basis of "average or presumptions". It was also held that unless and until the workers were identified, determination of the amount on hypothetical basis does not serve the very purpose for which the EPF Act and Schemes have been enacted and framed, since the money would not reach to the workers for whom it is meant till the time they are identified. Therefore, the determination should be precisely based on the wages drawn by the employees as per the records.
3.The respondents have raised preliminary objection regarding maintainability of the writ petition by the Central Board of Trustees of Employees Provident Fund organization. The learned counsels for the respondents submitted that the Central Board of Trustees has no locus standi to prefer a writ petition challenging the order passed by the authorities under the EPF Act and Schemes. There is no power conferred on the Central Board of Trustees to institute legal proceedings challenging the appellate order passed by the Tribunal. It is further submitted that the Board was not a party in the proceedings either before the Regional Provident Fund Commissioner or at the appellate proceedings before the Tribunal. The Board cannot be said to be an aggrieved or affected party which enables it to challenge the impugned order passed by the W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 8 Tribunal. There is no authorization in favour of the petitioner to challenge the impugned order before this court.
4. The limited and specified power of the delegation provided under the provision of the EPF Act and the Schemes framed thereunder cannot be used to challenge the order passed by the Tribunal. Under Section 5D and 5E of the EPF Act and Schemes framed thereunder, it is clearly mandated that the Central Board of Trustees cannot delegate its power to any of the officers, who discharge the same function as that of the delegate. No authorisation is given to the Assistant Provident Fund Commissioner for filing the writ petition in the name of the Central Board of Trustees. The Central Board of Trustees cannot exercise any power, which would not fall in its jurisdiction under the provisions of the EPF Act and Schemes. It has been further submitted that the officers of the Tribunal discharging quasi judicial functions are not supposed to support their own orders, if such orders are challenged before the higher forum.
5.The Central Provident Fund Commissioner is the secretary of the Central Board. The EPF Act and the Schemes do not empower the Central Board of Trustees to challenge the orders passed by the Tribunal or any authority.
6.On merit, it has been submitted that the orders passed by the Regional Provident Fund Commissioner in Ext.P1 are based on W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 9 surmises and conjunctures without taking into account the relevant documentary evidence. No document was sought from the respondents either by the enforcement officer or the Assistant Provident Fund Commissioner. It is further submitted that the orders passed by the Tribunal do not call for any interference, and therefore, the writ petitions are liable to be dismissed.
7.The court would like to take up the first issue, ie., "the maintainability of the writ petitions on behalf of the Central Board of Trustees."
Section 5A of the EPF Act provides for the Central Board of Trustees which would read as under:-
"[5A. Central Board:-
(1) The Central Government may, by notification in the Official Gazette, constitute, with effect from such date as may be specified therein, a Board of Trustees for the territories to which this Act extends (hereinafter in this Act referred to as the Central Board) consisting of the following 2 [persons as members] namely:--
(a) [a Chairman and a Vice-Chairman] to be appointed by the Central Government;
[(aa) the Central Provident Fund Commissioner, ex officio;]
(b) not more than five persons appointed by the Central Government from amongst its officials;
(c) not more than fifteen persons representing Governments of such States as the Central Government may specify in this behalf, appointed by the Central Government;
(d) [ten persons] representing employers of the establishments to which the Scheme applies, appointed by the Central Government after consultation with such organisations of employers as may be recognised by the Central Government in this behalf; and
(e) [ten persons] representing employees in the establishments to which the Scheme applies, appointed by the Central Government after consultation with such organisations of employees as may be recognised by the Central Government in this behalf.
W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 10 (2) The terms and conditions subject to which a member of the Central Board may be appointed and the time, place and procedure of the meetings of the Central Board shall be such as may be provided for in the Scheme.
(3) The Central Board shall 6 [, subject to the provisions of section 6A 7 [and section 6C]] administer the Fund vested in it in such manner as may be specified in the Scheme.
(4) The Central Board shall perform such other functions as it may be required to perform by or under any provisions of the Scheme [the [Pension] Scheme and the Insurance Scheme].
(5) The Central Board shall maintain proper accounts of its income and expenditure in such form and in such manner as the Central Government may, after consultation with the Comptroller and Auditor General of India, specify in the Scheme. (6) The accounts of the Central Board shall be audited annually by the Comptroller and Auditor General of India and any expenditure incurred by him in connection with such audit shall be payable by the Central Board to the Comptroller and Auditor-General of India.
(7) The Comptroller and Auditor-General of India and any person appointed by him in connection with the audit of the accounts of the Central Board shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General has, in connection with the audit of Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers, documents and papers and inspect any of the offices of the Central Board.
(8) The accounts of the Central Board as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded to the Central Board which shall forward the same to the Central Government along with its comments on the report of the Comptroller and Auditor-General.
(9) It shall be the duty of the Central Board to submit also to the Central Government an annual report of its work and activities and the Central Government shall cause a copy of the annual report, the audited accounts together with the report of the Comptroller and Auditor-General of India and the comments of the Central Board thereon to be laid before each House of Parliament."
8. From the aforesaid, it can been seen that subsection 3 of Section 5A provides that the Central Board, subject to the W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 11 provisions of Sections 6A and 6C administers the funds vested in such a manner as maybe specified in the Scheme. Subsection 4 of Section 5A empowers the Central Board to perform such functions as it maybe required to perform by or under any of the provisions of the Scheme, the Pension Scheme and the Insurance Scheme.
9.Section 5AA of the EPF Act, is in respect of the Executive Committee which is constituted by the Central Government by issuance of a notification in the Official Gazatte. The executive committee is to assist the Central Board in the performance of its function. Section 5B is in respect of the State Board which is constituted by the Central Government in consultation with the Government of the State. The State board is empowered to exercise such powers and perform such duties as the Central Government may assign to it from time to time. Section 5C provides that every Board of Trustees constituted under Section 5A or Section 5B shall be a body corporate under the name specified in the notification constituting it, having perpetual succession and a common seal and shall by the said name sue and be sued.
10.Section 5D of the EPF Act deals with the appointment of officers including Central Board Provident Fund Commissioner, who would exercise general control and superintendence of the Board. General Board may appoint as many additional Central Provident Fund Commissioners, Deputy Provident Commissioner, Regional W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 12 Provident Fund Commissioners, Assistant Provident Fund Commissioners and such other officers and employees as it may consider necessary for the efficient administration of the Schemes, Pension Scheme and Insurance Scheme.
Section 5E of EPF Act, is regarding delegation reads as under:-
"5E. Delegation.
"The Central Board may delegate to the Executive Committee or to the Chairman of the Board or to any of its officers and a State Board may delegate to its Chairman or to any of its officers subject to such conditions and limitations, if any, as it may specify, such of its powers and functions under this Act as it may deem necessary for the efficient administration of the Scheme the 4 Pension Scheme and the Insurance Scheme."
11.Section 5E of the EPF Act, empowers the Central Board to delegate to the Executive Committee or to the Chairman of the Board or to any of its officers and a State Board to delegate to its Chairman or any of its officers subject to such conditions and limitations, such of its powers and functions under the Act as it may deem necessary for the efficient administration of the Scheme, the Pension Scheme and the Insurance Scheme.
12.After the Scheme is framed under Section 5(1) of the EPF Act by the Central Government, the fund has to be established. This fund shall vest in and be administered by the board constituted under Section 5A of the EPF Act. Section 5A of the EPF Act deals W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 13 with the power of delegation and the Central Board may delegate its power to the executive committee or to the Chairman of the Board or any of its officers, subject to conditions and limitations for the efficient administration of the Scheme, the Pension Scheme and the Insurance Scheme.
13.The Division Bench of Calcutta High court in the case of Central Board of Trustees V. The Registrar,E.P.F Appellate Tribunal and another [MAT 1100 of 2017] has held that the recovery officer defined under 2(Kb) of the EPF Act, would mean any officer of the Central Government or board of Trustees constituted under Section 5A, who exercise the powers of recovery officer under the EPF Act. Therefore, the officers who are empowered to commence enquiry, determine and recover the dues cannot be seen in a water tight compartment to the exclusion of the Central Board. The Central Board of Trustees would have supremacy over the officer of the Central Government or the officer of the State Government while acting as a recovery officer. The Central Board has to exercise its power for the efficient administration of the Scheme. The powers and functions exercised by those officers as delegates are the powers and duties exercised or exercisable by the Central Board.
14.The very same question arose before the Calcutta High Court in the aforesaid bench regarding the maintainability of a W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 14 challenge to the order passed by the Tribunal and it has been held that the orders passed by the officers and Tribunal can be challenged by the Board.
Paragraphs 31,32 and 33 of the said judgment are extracted hereunder:-
"31. Thus, we are clear in our mind, that all Sub-Sections occurring in Section 5A have to be read together, more importantly Sub- Section (3) of Section 5A, and if done we have to necessarily hold that the Learned Writ Court erred in making an artificial distinction and holding that there is no power with the Central Board unless the "fund" is "vested". The Learned Writ Court has not given any opinion, as to when the "fund" gets vested with the Central MAT NO. 1141 OF 2017 & MAT NO. 350 OF 2018 Board. Hence we hold that the findings of the Learned Single Bench to be seriously flawed. Our conclusion is fortified if we note Section 5D of the Act, which deals with appointment of officers. Sub-Section (3) of Section 5D states:
32. The Central Board may appoint, subject to the maximum scale of pay, as may be specified in the Scheme, as many Additional Central Provident Fund Commissioners, Deputy Provident Fund Commissioners, Regional Provident Fund Commissioner, Assistant Provident Fund Commissioners and such other officers and employees as it may consider necessary for the efficient administration of the Scheme, the Pension Scheme and the Insurance Scheme.
33. Thus, the Officers/employees are to be appointed by the Central Board for the efficient administration of the scheme, it is impermissible, incomprehensible and erroneous to hold that the Central Board, which appoints those officers to carry out the function and duties under Section 7A or Section 14B cannot by itself maintain a challenge to the order of the Learned Tribunal, before this Court. The order passed by the Learned Writ Court has "rocked the boat" by giving an interpretation which is wholly unsustainable, ignoring the scheme of the Act and well settled rules of statutory interpretation. The Learned Single Bench, by creating an artificial distinction between the "scheme" and the "funds", erroneously concluded that unless the amounts are recovered from the employer it would not accrue to the "fund".
There is a statutory duty for the employer to comply with the terms of the scheme, which requires them to put in the contributions within the time stipulated namely MAT NO. 1141 OF 2017 & MAT NO. 350 OF 2018 their contribution as well as the contribution recovered from the employees' salary/ wages. If the scheme provides for the quantum to be deposited, there can be no escape from the liability, unless by judicial interference. This is precisely the challenge made by the appellant in the writ petition questioning the correctness of the decision of the learned tribunal."
15.I am in respectful agreement with the exposition of law by the learned Division Bench of the Calcutta High Court in respect of W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 15 the first issue regarding the maintainability of the writ petition by the Board. Therefore, the first issue is decided against the respondents and this court holds that the writ petitions are maintainable.
16.The orders passed by the Employees Provident Fund Organization would suggest that the enquiry under Section 7A of the EPF Act was initiated against the respondents on reports of the Enforcement Officer alleging dues on omitted wages, holiday wages and non enrollment of the employees. The orders passed under Section 7A by the Provident Fund Commissioner would suggest that the respondents were given full opportunity of leading their evidence and cross examination of the enforcement officer, which is evident from the order under Section 7A of the EPF Act itself.
17. The enforcement officer appointed under subsection 1 of Section 13 of the EPF Act made a visit to the petitioners' establishments and after verifying the records of the respective establishment, submitted a report that the establishment had failed to remit the corresponding EPF contribution on holiday wages for the period mentioned in the report. Certain wages were excluded from payment of the EPF contribution and no contribution was made in respect of some employees. The Regional Provident Fund Commissioner issued notice to the respective establishment. They filed their response to the notice. No fresh documents were W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 16 produced before the Regional Provident Fund Commissioner during the enquiry, despite sufficient opportunities having been given to them.
In the writ petition No. 17494 of 2015, the issue is only in respect of the holiday wages for the period from April 2011 to December 2011.
In writ petition No. 17493/2015, three issues are involved:-
"i) The dues in respect of non- enrolled temporary employees found working at the time of visit.
ii) dues arrived on holiday basis paid
iii) the dues on different of wages in comparison with existing minimum wages prevailing for a particular job in the period of instruction involved and the dues arrived on wages not forming as part of wages."
18.In W.P(C) 17501 of 2015, the issues of the non contribution of Provident Fund is on non enrollment of eligible employees and holiday wages are involved and W.P(C)No. 17426/2015, the issues of non enrollment of temporary employees found working at the time of visit for the month of May and June 2008, the issue of dues arrived on holiday wages for the period from March 2007 to May 2008 and the dues on difference of wages for the month of August 2006 to September 2006 in comparison with the payment of wages paid and contribution given to ESIC and others are concerned. W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 17 These four writ petitions are in respect of one and common respondent ie., M/S. Tasty Nuts Industries & Another.
19.The W.P (C) No. 26004 of 2016 is in respect of M/S. A2Z Property Management Service Pvt. Ltd. It is in respect of short contribution by splitting the wages to avoid payment of PF dues. In the said writ petition, the managing director of the respondent admitted before the Assistant Provident Fund Commissioner that the report of wages submitted by the enforcement officer for the period from March 2004 to February 2008 was on the basis of the original record of the respondents and the figures given were true and correct. The managing director had signed the report of the enforcement officer.
20.The orders passed by the Regional Provident Fund Commissioner as well as the Assistant Provident Fund Commissioner suggest that the issue regarding the non enrollment of temporary employees who were found physically working in the establishment, was concluded for the establishment did not submit any record in respect of the temporary employees inspite of sufficient opportunities given to them, and therefore, the dues of contribution in respect of these non enrollment of temporary employees was accepted by the Regional Provident Fund Commissioner as per the report of the enforcement officer. W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 18
21.It was further held that the PF contribution is required to be paid on holiday wages. From the records, it was found that certain amount was paid to the employees as holiday wages. The holiday wages also form part of wages of an employee, and therefore, the amount of contribution was required to be paid on the holiday wages also.
22.No finding was recorded by the Regional Provident Fund Commissioner in respect of short payment of wages as a result of lower payment of wages than the minimum wages prescribed under the statue. In respect of the said issue, the enquiry was kept pending as per the Head Office circular dated 20.12.2011.
23.The appellate authority has been of the opinion that the Regional Provident Fund Commissioner was required to conduct an independent enquiry. However, without conducting an independent enquiry, the assessment of the dues under Section 7A of the EPF Act has been made only on the basis of the report of the enforcement officer.
24.The orders passed by the Regional provident Fund Commissioner / Assistant Provident Commissioner would suggest that after submitting reports by the enforcement officer, the notices were issued to the respondents. They filed their responses. However, despite several opportunities having been granted to the respective establishment, they did not adduce evidence / documents W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 19 in support of their case, which could discredit the report submitted by the Enforcement Officer. Once the report was not disputed and discredited by leading the evidence and producing the record, I am of the view that the Regional Provident Commissioner / Assistant Provident Fund Commissioner would be justified in accepting the report of the enforcement officer, if the report has been not controverted by leading the credible evidence and producing the record.
25. The appellate authority has proceeded on the basis of the fact that the Commissioner was required to hold an independent enquiry. From the reading of the orders passed by the Regional Provident Fund Commissioner and Assistant Provident Fund Commissioner, it can be seen that the Regional Provident Commissioner / Assistant Provident Fund Commissioner did not accept the report without providing an opportunity to the owners of the establishment to dispute / discredit the report by the leading evidence and producing the record. If a person does not lead evidence, despite giving opportunity and fail to produce the record, in his possession, the adverse inference has to be drawn that he does not have to say anything to controvert the report.
In view thereof, I find that the approach of the Tribunal in the impugned orders is against the law and cannot be said to be justified. The holiday wages would come within the definition of W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 20 wages as defined under Section 2(s) of the EPF Act. The orders passed by the Regional Provident Fund Commissioner / Assistant Provident Fund Commissioner are well within the powers conferred under Section 7A of the EPF Act. However, the impugned orders suffer from illegality and therefore set aside.
Accordingly, the writ petitions are allowed, however without cost.
Sd/-
DINESH KUMAR SINGH JUDGE SJ W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 21 APPENDIX OF WP(C) 17426/2015 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER NO.KR/KLM/1294/ENF.1(5) 2013 DATED 19.2.2013 EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF APPEAL NO.
ATA 192(7) 2013 FILED BEFORE THE HON'BLE
EF APPELLATE TRIBUNAL
EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY THE ASSISTANT PROVIDENT FUND
COMMISSIONER KOLLAM IN EXT.P2 APPEAL
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.11.2014 IN
ATA NO.192(7) 2013
W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 22 APPENDIX OF WP(C) 17493/2015 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER NO.KR/KLM/1271/ENF.I(1)/2012 DATED 28.01.2013 EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF APPEAL NO.ATA NO.169(7)/2013 FILED BEFORE THE HON'BLE EPF APPELLATE TRIBUNAL EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE ASSISTANT PROVIDENT FUND COMMISSIONER KOLLAM IN EXT.P2 APPEAL EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.11.2014 IN ATA NO.169(7)/2013 W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 23 APPENDIX OF WP(C) 17494/2015 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER NO.KR/KLM/1293/ENF.I(5)/2013 DATED 19.02.2013 EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF APPEAL NO.ATA NO.193(7)/2013 FILED BEFORE THE HON'BLE EPF APPELLATE TRIBUNAL EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE ASSISTANT PROVIDENT FUND COMMISSIONER KOLLAM IN EXT.P2 APPEAL EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.11.2014 IN ATA NO.193(7)/2013 W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 24 APPENDIX OF WP(C) 17501/2015 PETITIONER EXHIBITS EXHIBIT P1 EXT.P1 TRUE COPY OF THE ORDER NO.KR/KLM/1193/ENF.1(4)/2011 DATED 19/1/2001 EXHIBIT P2 EXT.P2 TRUE COPY OF THE MEMORANDUM OF APPEAL NO ATA 170(7)/2011 FILED BEFORE THE HN'BLE EDF APPELLATE TRIBUNAL EXHIBIT P3 EXT.P3 TRUE COPY OF THEORDER DATED 17/112014 IN ATA NO 170(7) /2011 W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016 25 APPENDIX OF WP(C) 26004/2016 PETITIONER EXHIBITS EXHIBIT-P1 TRUE COPY OF THE ORDER DATED 9.4.2008 OF THE 7A AUTHORITY DIRECTING THE EMPLOYER TO REMIT AN AMOUNT OF RS.6,95,314/- UNDER SECTION 7A.
EXHIBIT-P2 TRUE COPY OF THE ORDER DATED 11.7.2008 REJECTING THE PETITION FOR REVIEW UNDER SECTION 7B OF THE ACT, FILED BY THE 1ST RESPONDENT.
EXHIBIT-P3 TRUE COPY OF THE MEMORANDUM OF APPEAL ATA
NO.607(7)/2009, FILED BY THE 1ST
RESPONDENT BEFORE THE 2ND RESPONDENT,
WITHOUT ITS ANNEXURES.
EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 17.11.2014 OF
THE 2ND RESPONDENT TRIBUNAL ALLOWING THE
APPEAL FILED BY THE 1ST RESPONDENT.
RESPONDENT EXHIBITS
EXHIBIT R1 TRUE COPY OF THE REPORT DATED 09/04/2008.
EXHIBIT R1 TRUE COPY OF STATEMENT DATTED 11/07/2008.
EXHIBIT R1 TRUE COPY OF THE REGISTER OF WAGES FOR THE
PERIOD 01/12/2003 TO 31/12/2003.