M/S. Hotel Syamala Paradise vs The Presiding Officer
2023 Latest Caselaw 1579 AP

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        THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                   WRIT PETITION No.11955 OF 2011

JUDGMENT:-


      Heard Sri Shakti Niranjan Gupta, learned counsel for the

petitioner and Sri P. Ram Bhoopal Reddy, learned counsel for

2nd respondent.

2. The petitioner M/s. Hotel Syamala Paradise, Proprietor

Eswara Hotels Private Limited has challenged the order dated

08.02.2011, passed in A.T.A.No.229(1) of 2009 by the 1st

respondent - Employees‟ Provident Fund Appellate Tribunal,

New Delhi (for short, "the Tribuna") under the Employees

Provident Fund and Miscellaneous Provisions Act, 1952 (for

short, "the Act, 1952") dismissing the petitioner‟s appeal and

upholding the order dated 11.02.2009 of the Employees

Provident Fund Authority being Order

No.AP/VP/CC54/AP55054/7A/2009/5964 under Section 7-A of

the Act, 1952.

3. The petitioner is an establishment covered under the Act,

1952 and the scheme framed therein. The establishment failed

to remit the provident fund, pension fund and the insurance

fund contribution and the administrative charges towards

provident fund and insurance fund for the period as submitted

under the Employees Provident Fund Scheme, 1952 (for short,

"the Scheme, 1952"), the Employees‟ Pension Scheme, 1995,

and the Employees‟ Deposit Linked Insurance Scheme, 1976

respectively. Summons under Section 79 of the Act, 1952 were

issued to the petitioner for determination of the dues for the

period of default and was directed to appear before the Assistant

Provident Fund Commissioner (for short, "the Commissioner"),

pursuant to which written statement was filed and after

holding the enquiry on various dates the Commissioner

determined in total an amount of Rs.2,68,534.80 ps due under

the Schemes of 1952, 1995 and 1976 for the period in question,

and directed the establishment to remit the said amount, failing

which to initiate the action in accordance with the provisions sof

Section 7Q of the Act, 1952 and Penal Damages under Section

14B of the Act, 1952.

4. The plea of the petitioner that the establishment was not

covered under the Act as the strength of the employees was less

than 20 was rejected, holding that from the physical verification

of the employees strength of the establishment by Enforcement

Officer, and by the Labour Officer, Circle-II and with all the

copies of Attendance Registers produced by the workers and

also the other documents collected by the Enforcement Officer

such as in „and‟ outward‟ registers and the copies of wage

registers produced by the workers for the month of July, 2002,

October, 2002 etc., it was proved that M. Kondababu, J. Ravi

Kumar, K. Chandra Mouli, N. Adinarayana and B. Prakash were

the employees of the establishment which employed even more

than 20 employees.

5. It was further held that the Enforcement Officer during

his visit to the establishment on 03.04.2007 procured the copies

of the attendance sheet for the months of January, 2007,

February, 2007 and March, 2007 from the premises of the

establishment, according to which the strength of the employees

was 23, 21 and 18 respectively. The names of the employees as

found from the physical verification and that all the salaries

statements of February, 2007 and the copies of the attendance

registers and the report of the Labour Officer, Circle-II,

Visakhapatnam, who also visited the establishment on

20.02.2007 under the Minimum Wages Act, 1948, were crossed

verified. The strength of the employees in the establishment was

more than 20 and consequently the Act was applicable. The

petitioner was under liability for the statutory payments which

were not made.

6. The Commissioner returned the finding that it was unable

to subscribe to the case of the petitioner establishment that the

Act, 1952 did not apply to the establishment because of the

scheduled heads and there were no 20 employees which

strength of the establishment was reached in October, 2002

itself. The date of the applicability of the Act, 1952 to the

establishment, therefore from October, 2002, was confirmed by

the Commissioner.

7. The petitioner‟s Appeal A.T.A.No.229(1) of 2009 was

dismissed, finding no infirmity in the order of the

Commissioner.

8. The appellate authority, held that the evidence of the

employees and the attendance register, salary register which

were filed by the employees and was maintained by the

establishment through out, established that the establishment

engaged 20 employees and there were no material to reject

those documents. The registration certificate filed by the

establishment to show that the employees engaged were less

than 20, being in conflict with the other documents on record,

was rejected.

9. The contention of the petitioner before the appellate

authority that the petitioner‟s establishment was not the hotel

but only lodging though it was running the business in the

name of hotel and consequently the Act, 1952 was not

applicable was also rejected by the appellate authority after

holding that the establishment was providing the lodging facility

and consequently it was covered under the scheduled head of

hotel and restaurant and was covered by the E.P.F. Act.

10. Learned counsel for the petitioner submitted that to the

petitioner‟s establishment, Employees Provident Fund Act is not

applicable because it did not engate 20 employees and the

finding to the contrary is illegal, as it is evident formthe order of

the Commissioner, that on the date of inspection by the Labour

Officer, Circle-II, Visakhapatnam dated 20.02.2007 under the

Minimum Wages Act, 1948, there were only 18 employees.

11. No other submission was advanced by the learned

counsel for the petitioner to challenge the impugned orders.

12. Sri P. Ram Bhoopal Reddy, learned counsel for the 2nd

respondent submitted that from the documentary evidence on

record, as discussed by the Commissioner, finding has been

recorded that the number of the employees in the petitioner‟s

establishment is even more than 20. With respect to the

proceedings of visit of the Labour Officer, he submitted that at

the time of such visit the Labour Officer found 18 persons

present but on that ground the finding of the Commissioner

cannot be faulted when there is other documentary evidence to

prove the number of employees even more than 20.

13. I have considered the submissions advanced by the

learned counsels for the parties and perused the material on

record.

14. The finding of the Commissioner that in petitioner‟s

establishment the strength of the employees reached 20, in

October, 2002, is a finding of fact. This finding has been arrived

at on consideration of the material on record before the

Commissioner in the form of various documents as mentioned

in its order and also referred to in the earlier part of this

judgment. The finding has been affirmed by the appellate

authority after rejecting the certificate to the contrary in view

of the overwhelming documentary evidence.

15. On a specific query to the learned counsel for the

petitioner with respect to the certificate as mentioned in the

appeal order showing the engagement of 15 persons, learned

counsel for the petitioner submitted that the certificate is at the

time of registration.

16. This Court is of the considered view that the matter is

concluded by the concurrent finding of fact based on

consideration of the material on record. The finding, therefore

does not suffer from any infirmity perversity or illegality so as to

call for interference in the exercise of writ jurisdiction.

17. Consequent upon such finding, the applicability of the

Act, 1952 to the petitioner‟s establishment is also established.

18. The writ petition lacks merit and is dismissed. No order

as to costs.

As a sequel thereto, miscellaneous petitions, if any

pending, shall also stand closed.

__________________________

RAVI NATH TILHARI,J Date:21.03.2023

Gk

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.11955 OF 2011

Date:21.03.2023

Gk.