Allahabad High Court
M/S Awadh Tradingh Corporation ... vs Union Of India Thru. Commissioner ... on 21 September, 2016
Bench: Amreshwar Pratap Sahi, Vijay Laxmi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?AFR
Court No. - 1
Case :- MISC. BENCH No. - 22224 of 2016
Petitioner :- M/S Awadh Trading Corporation Thru. Devendra Nath Srivastav
Respondent :- Union Of India Thru. Commissioner Ministry Of Labour & Ors.
Counsel for Petitioner :- Rajiv Srivastava
Counsel for Respondent :- A.S.G,Arpit Kumar,R.K. Verma,Shailendra Srivastava
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Dr. Vijay Laxmi,J.
This petition arises out of a dispute relating to a deposit of provident fund under the Employees Provident Fund and Miscellaneous Provisions Act, 1952.
The petitioner is a service provider to the respondent Electricity Distribution Division namely Madhyanchal Vidyut Vitran Nigam Limited, Gonda.
An agreement was entered into between the petitioner and the said respondent, a copy whereof is Annexure no. 4 to the writ petition. According to clause 2.10 of the said agreement the petitioner firm is responsible for deducting the amount of Employees Provident Fund as per rules from the wages of the skilled and unskilled labour and contribution of the firm is to be got deposited with the Employees Provident Fund Commissioner as per existing rules and regulations. As per clause 6.0 payment has to be made by the Executive Engineer of the respondent-Corporation once in a month on A certified calculation subject to availability of funds.
The contention of the petitioner is that the respondent-Corporation being the Principal Employer, the deduction of the EPF can be made only on the basis of payment received.
The Assistant Provident Fund Commissioner proceeded to pass an order under section 14-B of the 1952 Act proposing to levy a penalty as there was a default in such deposit for the period 1.8.2009 to 31.10.2014 coupled with an order under section 7-Q of the 1952 Act dated 17.7.2015, copy whereof is Annexure no. 6 to the writ petition. Since the liability had been imposed on the petitioner he moved an application under section 7-B read with B(1)(2) of the 1952 Act for review and during the
proceedings it was pointed out that a plea was set up clearly by the petitioner that it was on account of delayed receipt of payment from the respondent-Corporation that the deduction of EPF was followed thereafter. This fact of tendering of delayed payment to the petitioner by the respondent department itself was admitted by the Office Assistant of the Electricity Department Mr. Tarkeshwar Gupta who had attended the proceedings before the competent authority as is evident from the order-sheet dated 13.3.2016. The Assistant Provident Fund Commissioner accordingly reviewed the same on 25.5.2016 imposing the said liability on the respondent-Corporation, copy of the said order is Annexure no. 19 to the writ petition.
It appears that the respondent-Corporation moved an application for review instead of filing an appeal against the order dated 25.5.2016 and the said application was entertained. A copy of the said review application moved by the Electricity Department is Annexure no. 1 to the writ petition.
The Assistant Provident Fund Commissioner entertained the said application and has allowed it on 11.7.2016, impugned herein, whereupon the consequential action by the impugned realization process dated 4.8.2016 has also been challenged by the petitioner. The contention is that the order is without any notice or opportunity to the petitioner and secondly the respondent Electricity Department was bound to file an appeal instead of filing a review application.
Sri R.K. Verma has appeared for the respondent no. 3 and 4 and Sri Shri Prakash Singh has appeared for the respondent-Electricity Department namely respondents no. 4 and 5.
We have heard learned counsel for the respondents who have contended that it is the petitioner's liability to deduct and deposit the EPF and is not subject to any such payment as alleged. The petitioner is bound to make timely deductions for which the petitioner can not shift it's liability on the Corporation.
From a perusal of the impugned order dated 11.7.2016 it is clear that while proceeding to review the matter a second time, the Assistant Provident Fund Commissioner did not examine the issue of his authority to do so or the remedy of appeal being available to the respondent-Corporation. When the earlier order dated 25.5.2016 had been passed with the participation of the official of the Electricity department, then a review on it's behalf would be entertainable or not was also to be looked into.
He also did not extend any notice or opportunity to the petitioner prior to reviewing the earlier order dated 25.5.2016. Thus, the liability has been saddled without any notice or opportunity to the petitioner prior to the passing of the impugned order and initiating the process vide notice dated 4.8.2016.
Consequently, on this short ground alone the writ petition deserves to be allowed. The order dated 11.7.2016 being in violation of principles of natural justice cannot be sustained and consequently, the subsequent action dated 4.8.2016 also cannot survive. Both the orders are hereby quashed. The writ petition is allowed.
It shall be open to the Assistant Provident Fund Commissioner to examine these issues and pass orders only after giving opportunity to the petitioner.
Order Date :- 21.9.2016
Om.
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(Dr. Vijay Laxmi, J.) (Amreshwar Pratap Sahi, J.)
