Himachal Pradesh High Court
Regional Provident Fund Commissioner vs Tibetans Children'S Village on 5 December, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 3040 of 2016
.
Date of decision: 05.12.2017
Regional Provident Fund Commissioner ... Petitioner
Versus
Tibetans Children's Village, Dharamshala Cant ... Respondent
Coram :
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.
For the petitioner: M/s. Rajiv Jiwan & Prashant
Sharma, Advocates.
For the respondent: Mr. S.K. Gupta, Advocate with
Mr. Bhim Raj Sharma, Advocate.
Ajay Mohan Goel, J. (Oral):
By way of present writ petition, petitioner has prayed for the following reliefs:-
(i) That the impugned order dated 22/08/2016 passed by Employees Provident Fund, New Delhi ATA No. ATA 255(17) of 2016 may kindly be quashed and set aside.1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 11/12/2017 23:00:06 :::HCHP 2(ii) That records of the case may be summoned for the kind perusal of this Hon'ble Court.
Any other and further order which this .
Hon'ble Court deems fit and proper be also passed."
2. Brief facts necessary for adjudication of the present petition are that an order dated 23.12.2015 was passed by the Regional Provident Fund Commissioner-I under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 in respect of M/S Tibetan Children's Village, Dharamshala Cantt. Distt. Kangra, H.P., having Provident Fund Code No. HP-8372 to decide applicability of provisions of EPF & MP Act, 1952.
3. Vide said order, the authority concerned held that the provisions of the EPF and MP Act, 1952 were applicable to the establishment i.e. the present respondent and that the establishment was rightly brought under the ambit of the said Act. Reasonings so assigned by the authority while arriving at the said conclusion are quoted below:-
"WHEREAS, inquiry under section 7A of the Act was initiated against establishment to decide the applicability of EPF & MP Act, 1952 and subsequently Notice No. HP 8372/EB/15833 dated 03/12/2015 ::: Downloaded on - 11/12/2017 23:00:06 :::HCHP 3 issued u/s 7A of the EPF & MP Act fixing the date of hearing on 21/12/2015 to appear before the authority either in person or through an authorized .
representative.
On 21/12/2015 Mr. Tsewang Yeshi, President and Sonam Tenzin, Account Officer appeared on behalf of the establishment and Sh. Sanjeev Sood, AEO appeared on behalf of the department. The Accounts Officer of the establishment stated that the Act is not applicable as their establishment qualifies condition for exclusion as read sub section (2) of section 16 of the EPF & MP Act, 1952 as per the Gazette of India notification no. REGD NO. D2(N) 04/0007/2003-05 and was exempted till 31/03/2015. Further Tibetan being as an international worker also qualifies for exemption from the Act till 2008. Mr. Tsewng Yeshi, President informed that however they have already transferred Rs.43 Crores approximate of EPF Accumulation to the EPFO including interest upto April 2014.
The plea of the establishment regarding exclusion/exemption was examined in details and after detailed discussions held with the representative of the establishment, it was informed that the EPF & MP Act, 1952 is applicable w.e.f. 06/03/1982 to the establishment as its satisfy the conditions of coverage on the said date. The establishment is registered under the societies Act of 1860 on 20/08/1971 and the main objective of the society is to open ::: Downloaded on - 11/12/2017 23:00:06 :::HCHP 4 school/schools at all levels to arrange, promote, encourage and control education in the Tibetan Community. The establishment is therefore coverable .
w.e.f. 06/03/1982 under schedule head "Educational Institution" (Gazette Notification 06/03/1982) as the establishment is running institution on the said date and is employing more that 19 employees also. Therefore, the establishment is required to file the statutory returns so that the dues of the outgoing persons could be settled.
The establishment informed that they have problem regarding the preparation of returns from the date of coverage and agreed to submit the prescribed returns, but they have requested for some time as they have to prepare the records on the basis of voluminous records. They have been advised in details how to prepare returns and this office will also help them in preparing the returns. They further requested that since the amount of Rs. 43 Crores have been transferred with interest, the excess if any be adjusted against other liabilities in interest and damages.
The request of the establishment is considered and they are directed to submit all the statutory returns at the earliest.
Now therefore, I, Uma Mandal, RPFC-1, R.O. Shimla in exercise of powers conferred upon me u/s 7A of the Act after due application of my mind to various facts of the case, submission made and ::: Downloaded on - 11/12/2017 23:00:06 :::HCHP 5 material placed before me hereby order that the decide that EPF & MP Act, 1952 is applicable w.e.f. 06/03/1982 to the establishment and the .
establishment rightly been brought under the ambit of the EPF & MP Act, 1952.
The Applicability of the EPF & MP Act, 1952 is decided and proceedings are closed."
4. Said order was assailed by way of an appeal by the present respondent before the Employees' Provident Fund Appellate Tribunal. The grounds on which the order was assailed, inter alia, were that the establishment was running children's villages, schools on charity basis and had been providing education free of cost to the students and no fees was being charged from the student and in fact the main source of income of the establishment was foreign donors and Tibetan donors and therefore the provisions of the Act supra were not attracted upon the establishment.
5. Learned Appellate Authority vide order dated 22.08.2016 allowed the appeal so filed before it and set aside the order passed by the Regional Provident Fund Commissioner dated 23.12.2015.
6. Order so passed by learned Appellate Authority stands assailed before us.
::: Downloaded on - 11/12/2017 23:00:06 :::HCHP 67. Having heard learned counsel for the parties, we are not inclined to interfere with the order which so stands .
assailed before us. We say so for the reason that after going through the same apparently we do not find any infirmity with it. A perusal of the order so passed by learned Appellate Authority dated 22.08.2016 demonstrates that the same is not only a speaking order but it is also a well reasoned and a well objected order. Learned Appellate Authority has dealt with the respective contentions of the parties before it in its order and thereafter returned its reasonings in Para-7 thereof which reasonings, we find, are not perverse as they are duly borne out from the records of the case. It has been held by learned Appellate Authority that the records before the said authority demonstrated that the present respondent was having no income from the educational institutions being run by it. Learned Appellate Authority also held that during the course of inquiry present petitioner did not try to ascertain whether the respondent establishment was charging any fee from the students or providing education facility to the students free of cost. It has been further held by learned Appellate Authority that there was no reason to disbelieve the stand of the appellant establishment before it ::: Downloaded on - 11/12/2017 23:00:06 :::HCHP 7 that it was providing education facility to the students free of cost. It was on the basis of the findings so returned that .
learned Appellate Authority while setting aside the order impugned before it allowed the appeal so filed by the present respondent before it.
8. In the present petition, this Court cannot sit over the order so passed by learned Appellate Authority as an Appellate Court. In exercise of power of judicial review, this Court has to adjudicate the lis within the well settled canons of law as have been laid down by Hon'ble Supreme Court whereby this Court is not supposed to review the decision so taken but has to review the decision making process. We find from the records that learned Appellate Authority had heard both the parties and further had returned its findings on the basis of the material which was produced before it by the contesting parties. In this view of the matter, when the findings so returned by learned Appellate Authority are duly borne out from the records of the case and due process has been followed, the same do not call for any interference. We may also observe that in order to ascertain the validity of the order so passed by learned Appellate Authority this Court ::: Downloaded on - 11/12/2017 23:00:06 :::HCHP 8 cannot go into material which was not placed by the present petitioner before the Appellate Authority.
.
9. Therefore, as we do not find any merit in the present writ petition, the same is accordingly dismissed.
However, we may observe that in future the respondent institute shall abide by the provisions of Employees Provident Fund Act.
10. Petition stands dismissed in above terms, so also pending miscellaneous application(s), if any. No order as to costs.
(Sanjay Karol),
Acting Chief Justice
(Ajay Mohan Goel),
December 05, 2017 Judge
(BSS)
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