1 jg.wp3232.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 3232 OF 2015
Global Engineering Services,
Through its proprietor S. V. Raut,
Aged about-46 years, Occu-Business,
having its office at Mukta Plaza,
Near Income Tax Square,
Gorakshan Road, Akola. ... Petitioner
// VERSUS //
(1) The Employees Provident Fund Appellate
Tribunal, New Delhi, Scope Minar, Core-2,
4th Floor, Laxmi Nagar, District Centre,
Delhi-110092.
(2) Assistant Provident Fund Commissioner,
S.R.O, Akola, Raguraj Archade, Civil Lines,
Akola, Tq and Dist. Akola. ... Respondents
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Shri A. R. Deshpande, Advocate for the petitioner
Shri H. N. Verma, Advocate for the respondent no. 2
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CORAM : PRASANNA B. VARALE, J.
DATE : 15-12-2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith.
2. Heard Shri Deshpande, learned counsel for the petitioner and Shri Verma, learned counsel for the respondent no. 2.
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3. The petitioner challenges the order passed by the Employees Provident Fund Appellate Tribunal, New Delhi dated 14-5-2015. The facts which are not in dispute are :
The petitioner is a proprietary concern. The Assistant Provident Fund Commissioner by exercising powers vest with him initiated an enquiry under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for the sake of brevity) against the petitioner. By conducting enquiry as well as on verification of record, the Assistant Provident Fund Commissioner passed order dated 1-4-2014. The said authority i.e. Assistant Provident Fund Commissioner was of the opinion that the petitioner was liable to pay the dues payable for the period from 2005-
2006 to 2010-2011 to the tune of Rs. 37,88,108/-.
4. It was the case of the petitioner that as the order passed by the Assistant Provident Fund Commissioner dated 1-4-2014 was an ex parte order, the same authority was again approached in view of the provisions of the Act. The Assistant Provident Fund Commissioner by order dated 21-8-2014 found no reason to entertain the application made by the petitioner, resultantly, the attempt of the petitioner ::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:30:51 ::: 3 jg.wp3232.15.odt approaching the authority again failed. Being aggrieved by the said order, the petitioner approached the appellate forum i.e. Employees Provident Fund Appellate Tribunal. Various grounds are raised in challenge to the order passed by the Assistant Provident Fund Commissioner including the ground that the Assistant Provident Fund Commissioner passed the order without application of mind and the order was passed only on assumptions and presumptions without identifying the names of beneficiaries. The appellate forum on hearing the appellant directed the petitioner to deposit 50% of the assessed amount. The appellate forum then stated in the order that if order complied, then matter be listed before the Tribunal on 20-8-2015 for consideration of application for condonation of delay.
The petitioner being aggrieved by the said order approached this Court by present petition.
5. This Court while issuing notice on 10-6-2015 protected the petitioner by order that till returnable date, the appeal filed by the petitioner shall not be dismissed in terms of order dated 14-5-2015.
This Court further directed the petitioner to deposit a sum of Rs. 5,00,000/- within a period of three weeks from the date of order ::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:30:51 ::: 4 jg.wp3232.15.odt and further directed no coercive action shall be taken against the petitioner on the basis of the impugned order till the returnable date.
Though the petitioner was directed to deposit amount of Rs. 5,00,000/- within stipulated period of three months, the petitioner failed to deposit the said amount. On 1-7-2015, time was sought for by filing civil application for depositing the amount and this Court extended the time as a last chance by two weeks. In spite of extension of time granted to the petitioner, the amount was not deposited within stipulated period of two weeks. Matter was listed on 14-12-2016 and the same was adjourned to 15-12-2016. Today, Shri Deshpande, learned counsel for the petitioner made an attempt to submit before this Court that appellate forum ought not to have directed the petitioner to deposit 50% of the amount. It was the submission of Shri Deshpande, learned counsel that the relevant provisions of the Act, namely, Section 7-O gives a power to the Tribunal to waive the amount to be deposited. It was the further submission of learned counsel Shri Deshpande that as the petitioner has raised the ground in the appeal that the Assistant Provident Fund Commissioner failed to ascertain the beneficiaries and ::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:30:51 ::: 5 jg.wp3232.15.odt identification of employees is mandatory and as the Assistant Provident Fund Commissioner failed to undertake such exercise, the order passed by the Assistant Provident Fund Commissioner thus is unsustainable. It was the submission of Shri Deshpande, learned counsel that considering the grounds raised in the appeal, the appellate forum ought to have waived the amount of deposit.
Shri Deshpande, learned counsel placed heavy reliance on the judgment of this Court reported in 2012(2) Bom.C.R. 816 in the matter of Ranisati Ginning Factory (Proprietorship) through its proprietor Shri S. B. Zunzunwala Vs. Regional P.F. Commissioner and anr.
6. Shri Verma, learned counsel for the respondent no. 2 supported the order impugned in the petition. He submitted that no error is committed by the appellate forum. On the contrary, appellate forum has taken a liberal view to deposit the amount thereby giving reduction in the amount to the extent of 50%.
7. On the backdrop of the submissions of learned counsel appearing for the parties, I have gone through the material placed on record as well as relevant provisions of the Act. The submissions of ::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:30:51 ::: 6 jg.wp3232.15.odt Shri Deshpande, learned counsel for the petitioner though looks attractive at first blush, considering the order impugned in the petition passed by the appellate forum and considering the provisions, I am unable to accept the submissions of learned counsel for the petitioner.
The appeal is preferred against the order passed by the Assistant Provident Fund Commissioner. The petitioner who made an attempt to approach the Tribunal on the ground that the order passed by the Assistant Provident Fund Commissioner is without application of mind as the Assistant Provident Fund Commissioner failed to ascertain the beneficiaries and identification of employees. The appellate forum specifically referred to the submissions advanced on behalf of the petitioner-appellant and the same reads thus :
It is argued on behalf of the appellant that impugned order of the Commissioner suffers from non application of mind and that the order is bad in law, against facts and evidence so it may be stayed. It is further argued on behalf of appellant that alleged assessment is without identification of beneficiaries so appellant be exempted from pre deposit of statutory amount at the time of filing of appeal.
(emphasis supplied) The appellate forum then by referring to the provision, namely, ::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:30:51 ::: 7 jg.wp3232.15.odt Section 7-O of the Act further observed that the petitioner was seeking exemption from depositing the amount i.e. waiver was sought for.
The appellate forum, then considering the ground raised by the petitioner-appellant that the financial position of the appellant-
petitioner is not sound, was of the opinion that the pre-deposit amount can be reduced up to 50% of the assessed amount. The appellate forum further made it clear that this finding of the forum is at interim stage and it shall not effect the finding of the Tribunal at the time of disposal of the case. Thus, the appellate forum having two choices as per the provisions of the Act itself, firstly, granting the waiver and secondly, reduction of the amount to be deposited. The appellate forum by referring to the grounds raised in the appeal as well considering the ground namely, financial constraints of the appellant-petitioner, exercised the second option i.e. reduction of amount. The appellate forum committed no error nor exceeded in jurisdiction vest with it. The submission of Shri Deshpande, learned counsel that as the ground was raised by the petitioner-appellant of non application of mind by the Assistant Provident Fund Commissioner, the appellate forum was duty bound to grant waiver to ::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:30:51 ::: 8 jg.wp3232.15.odt the petitioner cannot be accepted. The acceptance of such submission would result in making the provision redundant and this neither can be the object of the Act nor this view can be taken. The learned counsel for the petitioner placed heavy reliance on the judgment of this Court in the case of Ranisati Ginning Factory (Proprietorship) through its proprietor Shri S. B. Zunzunwala Vs. Regional P.F.
Commissioner and anr. (cited supra). Perusal of the judgment of this Court clearly shows that the order passed by the appellate forum was the subject matter in the petition before this Court. Thus, it is clear that the merits of appeal were assessed by the appellate forum and the ultimate order of the appellate forum was challenged before this Court. This being clearly distinguishable fact, in my opinion, the judgment of this Court relied on by Shri Deshpande, learned counsel is of no help to the petitioner.
8. It would not be out of place to mention that the appellate forum took a liberal approach considering the financial constraints of the petitioner. Not only this, even this Court granted interim order in favour of the petitioner subject to condition that the petitioner would deposit the amount of Rs. 5,00,000/-. The petitioner failed to deposit ::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:30:51 ::: 9 jg.wp3232.15.odt that amount and request was made for extension of time. Even extension of time was granted to the petitioner, but the petitioner failed to deposit the amount in this Court. Considering all these facts, in my opinion, the petition is wholly meritless. No error is committed by the appellate forum. The petition thus, being meritless, deserves to be dismissed and the same is accordingly dismissed.
ig JUDGE
wasnik
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