Apfc Employees Provident Funds ... vs M/S Profolab

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of Decision :- 29.11.2019
+     W.P.(C) 9029/2019 & CM No.37280/2019 (delay)
      APFC EMPLOYEES' PROVIDENT FUNDS ORGANISATION
                                                  ..... Petitioner
                  Through:   Ms. Rashmi Bansal, Adv.
                           versus
      M/S PROFOLAB                                          ..... Respondent
                           Through:    Mr. Nikhil Patnaik, Adv.
      CORAM:
      HON'BLE MS. JUSTICE REKHA PALLI
      REKHA PALLI, J (ORAL)
      1.      The present writ petition filed by the APFC Employees'
      Provident Funds Organisation assails the order dated 05.08.2011
      passed by the Employees Provident Fund Appellate Tribunal. Under
      the impugned order, the appeal preferred by the respondent-employer
      was allowed, thereby setting aside the order under Section 7A of the
      Employees' Provident Funds and Miscellaneous Provisions Act, 1952
      ('EPF Act' for short) directing the respondent to deposit the provident
      fund dues of its ex-employee Ms. Asha Nangia. The petitioner also
      assails the order dated 30.01.2017 whereby its belated review petition
      was rejected by the Tribunal.
      2.      The case of the petitioner is that one Ms. Asha Nangia, who had
      worked with the respondent organisation between 21.03.2000 to
      31.03.2008 as a Front Office Manager, on 17.08.2008 made a
      complaint to it alleging therein that even though she had worked in



     WP (C) No.9029/2019                                    Page 1 of 5
  the respondent organisation for almost 8 years, she was not made a
 member of the Provident Fund Scheme and was therefore, deprived of
 the benefits of the provident fund.        Upon receipt of the said
 complaint, the petitioner issued a show cause notice to the respondent
 and after considering its reply passed an order under Section 7A of
 the EPF Act on 10.07.2009 directing the respondent to deposit a sum
 of Rs.1,35,970/- towards provident fund dues of Ms.Asha Nangia.
 Upon a review petition being filed by respondent, the said amount
 was reduced by the petitioner to Rs.1,17,089/-.
 3.      Aggrieved by the petitioner's aforesaid direction to deposit the
 amount, the respondent preferred a statutory appeal before the
 Employees' Provident Fund Tribunal. The primary contention of the
 respondent before the Tribunal was that Ms. Nangia was an excluded
 employee in terms of Section 2(f) of the Employees Provident Fund
 Scheme, 1952 (hereinafter referred to as 'Scheme') as she was always
 drawing salary higher than the prescribed limit and was, therefore,
 rightly not enrolled as a member of Provident Fund Scheme. In
 support of its aforesaid contention, the respondent relied on
 Ms.Nangia's own complaint, wherein she had herself categorically
 stated that her salary from 21.03.2000 was Rs.7,200/- whereafter it
 kept on increasing from time to time.          Based on this position
 emerging from the record that Ms. Nangia was drawing a salary of
 Rs.7200/- in the year 2000 which was higher than the exemption limit
 prescribed in Section 2(f) of the Scheme, the Tribunal vide its order
 dated 05.08.2011 allowed the respondent's appeal.




WP (C) No.9029/2019                                    Page 2 of 5
  4.      More than 5 years after the passing of the order dated
 05.08.2011 allowing the respondent's appeal, the petitioner preferred
 a review application before the Tribunal which came to be rejected
 vide order dated 30.01.2017. Both the order dated 05.08.2011 and
 30.01.2017 are assailed by way of the present petition which has been
 filed two and a half years after the dismissal of the review petition and
 almost eight years after the passing of original order. Though an
 application seeking condonation of delay has been filed along with
 the petition, the same contains only a bald statement that this delay
 had been caused due to the shifting of the petitioner's office. Neither
 any details, whatsoever, of the alleged shifting have been provided
 nor any explanation is sought to be given for this inordinate delay.
 5.      On merits, Ms.Bansal, learned counsel for the petitioner,
 submits that the impugned order is liable to be set aside as the
 Tribunal has allowed the respondent's appeal without appreciating the
 fact that the salary of Rs.7200/- being drawn by Ms. Nangia included
 various allowances like House Rent Allowance, which allowances
 had to be excluded while calculating her salary for determining
 whether the same fell within the exemption limit under Section 2(f) of
 the Scheme. She, thus, contends that once the various allowances are
 excluded from Ms. Nangia's salary, she would no longer be treated as
 an excluded employee. She, therefore, prays that the impugned orders
 be set aside.
 6.      On the other hand, learned counsel for the respondent, who
 appears on advance notice, while supporting the impugned orders,
 submits that as per the own averments of Ms. Nangia in her



WP (C) No.9029/2019                                     Page 3 of 5
  complaint, her salary was more than the exemption limit prescribed in
 Section 2(f) of the Scheme and, therefore, she was rightly treated as
 an excluded employee. He also relies on Form-7A signed by Ms.
 Nangia on 21.03.2000 wherein she had categorically stated that she
 was not entitled to become a member of the Employees Provident
 Fund Scheme. He therefore, prays that the writ petition be dismissed.
 7.        I have considered the submissions of the learned counsel for the
 parties and with their assistance perused the record. Undoubtedly,
 there is no limitation prescribed for filing a writ petition but such an
 inordinate delay and that too without any sufficient cause cannot be
 condoned at the mere asking. In the present case, I find absolutely no
 merit in the justification sought to be given by the petitioner for this
 inordinate delay in approaching the Court and, therefore, the petition
 would be liable to be dismissed on the ground of delay and latches
 itself.
 8.        Even on merits, I see no reason to interfere with the impugned
 order.      Once Ms. Nangia had herself stated that her salary was
 Rs.7200/- or more, which was admittedly higher than the prevalent
 exemption limits both of Rs.5000/- applicable till June 2000 and of
 Rs.6500/- thereafter as also the fact that she had filled form 7A stating
 therein that she was not eligible to become a member of Scheme,
 there is absolutely no reason to rely on the petitioner's bald statement
 that her salary was in fact lesser than the exemption limit by
 excluding certain allowances.        Nothing has been pointed out by
 learned counsel for the petitioner, as to why, the allowances which
 formed an integral part of Ms. Nangia's salary should be excluded.



WP (C) No.9029/2019                                      Page 4 of 5
  9.      For the aforesaid reasons, I find no infirmity in the impugned
 order, warranting interference under this Court's writ jurisdiction. The
 petition being meritless is dismissed both on the grounds of delay as
 also on merits.




                                                    REKHA PALLI, J.

NOVEMBER 29, 2019 SDP WP (C) No.9029/2019 Page 5 of 5