The Central Board Of Trustees, ... vs M/S Ratanlal Chhotelal Agrawal ...
2017 Latest Caselaw 8541 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR


                                                       WRIT PETITION NO.3517/2015

1.         The Central Board of Trustees,
           Employees Provident Fund Organization,
           having office at Bhavishya Nidhi Bhawan, 
           Bhikaji Cama Place, New Delhi - 110 066, 
           through the Regional Provident Fund
           Commissioner, Employees Provident Fund 
           Organization, Sub-Regional Office, Akola. 

2.         The Assistant Provident Fund Commissioner,
           Employees Provident Fund Organization, 
           Sub-Regional Office, 15-B, Raghuraj Arcade, 
           Civil Lines, Akola.                                                                                                                                ..Petitioners.

                         ..Vs..

1.         M/s. Ratanlal Chhotelal Agrawal Gining and
           Pressing Factory, situated at Achalpur Camp
           (Paratwada), Distt. Amravati. 

2.         Employees Provident Fund Appellate Tribunal,
           New Delhi, Laxmi Nagar, New Delhi, 
           through its Presiding Officer.                                                                                                          ..Respondents.
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             Shri H.N. Verma, Advocate for the petitioners. 
             Shri V.A. Bramhe, Advocate for the respondent No.1.
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                                                                 CORAM :  Z.A. HAQ, J.

                                                                 DATE  :     8.11.2017.




ORAL JUDGMENT

1. Heard Shri H.N. Verma, Advocate for the petitioners and Shri V.A.

Bramhe, Advocate for respondent No.1. None for respondent No.2 though

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served.

2. Rule. Rule made returnable forthwith.

3. The orders under Section 14-B and 7-Q of the Employees' Provident

Funds and Miscellaneous Provisions Act, 1952 (for short "Act of 1952"), passed

by the Assistant Provident Fund Commissioner were challenged by the

respondent No.1 in appeal under Section 7-I of the Act of 1952 before the

Appellate Tribunal. The appeal filed by the respondent No.1 is allowed and

both the orders are set aside.

4. The order passed under Section 7-Q of the Act of 1952 determining

the amount of interest payable by the respondent No.1 is set aside overlooking

the fact that the appeal under Section 7-I of the Act of 1952 does not lie against

the order passed under Section 7-Q of the Act of 1952. Therefore, the order

passed by the Appellate Tribunal to the extent the order passed by the Assistant

Provident Fund Commissioner under Section 7-Q of the Act of 1952 is set aside,

is without jurisdiction.

5. The order passed by the Assistant Provident Fund Commissioner

under Section 14-B of the Act of 1952 is set aside on the ground that the

authority has not considered whether the delay in depositing the provident

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fund contribution is wilful and deliberate. The Appellate Tribunal has rightly

set aside the order passed by the Assistant Provident Fund Commissioner

under Section 14-B of the Act of 1952 on the above ground, however, the

Appellate Tribunal has committed an error in closing the case and not

remanding it to the Assistant Provident Fund Commissioner for considering

whether the delay in depositing the provident fund contribution is wilful or

deliberate. There is nothing in the order passed by the Appellate Tribunal to

show that the Appellate Tribunal has itself considered whether the delay in

depositing the provident fund contribution is wilful or deliberate.

6. In the above facts, the following order is passed:

(i) The impugned order passed by the Appellate Tribunal is set aside.

(ii) The matter is remitted to the Assistant Provident Fund

Commissioner for considering the issue whether the delay in depositing

provident fund contribution by the respondent No.1 is wilful and / or

deliberate.

The Assistant Provident Fund Commissioner shall decide the matter

after hearing the respondent No.1.

(iii) The learned Advocate for the respondent No.1 has submitted that

the amount of interest determined by the authority by the order passed under

Section 7-Q of the Act of 1952 is also not proper. As the matter is being

remanded to the Assistant Provident Fund Commissioner, it is directed that he

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shall hear the respondent No.1 also on the point of liability of the respondent

No.1 to pay interest as per Section 7-Q of the Act of 1952 and take fresh

decision in the matter. Consequently, the orders passed by the Assistant

Provident Fund Commissioner on 7th May, 2012 under Section 14-B of the Act

of 1952 and under Section 7-Q of the Act of 1952 are also set aside.

(iv) The respondent No.1 shall appear before the Assistant Provident

Fund Commissioner, Akola on 10th January, 2018 at 11 a.m. and abide by

further instructions / orders in the matter.

(v) The Assistant Provident Fund Commissioner shall dispose the matter

till 15th March, 2018.

Rule made absolute in the above terms.

In the circumstances, the parties to bear their own costs.

JUDGE

Tambaskar.