Global Engineering Services ... vs The Employees Provident Fund ...
2016 Latest Caselaw 7226 Bom

                                              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
   



    -------------------------------------------------------------------------------------------------
    Shri A. R. Deshpande, Advocate for the petitioner
    Shri H. N. Verma, Advocate for the respondent no. 2
    -------------------------------------------------------------------------------------------------





                                                 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

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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

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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

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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

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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,

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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

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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

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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