Bhavishya Nidhi Bhawan vs Ntpc Limited & Ors
2021 Latest Caselaw 6243 Cal

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13   10.12.2021                         FMA 1544 of 2016
RP   Ct. No. 16
AN                                         with
                       IA No. CAN 1 of 2015 (Old No. CAN 11182 of 2015)

                           Regional Provident Fund Commissioner-I, Regional Office,
                             Bhavishya Nidhi Bhawan, Dinbazar, Jalpaiguri & ors.
                                                    vs.
                                           NTPC Limited & ors.

                  Mr. S. C. Prasad
                                                            ... for the appellant

                  Mr. Soumya Majumder
                  Mr. Uttam Kumar Mondal
                  Ms. Shagun Baid
                                                           ... for the respondent

This appeal filed by the Employees Provident Fund

Organisation is directed against an order dated 07.09.2015

passed in AST 229 of 2015 filed by the first respondent,

namely, NTPC Limited, a Government of India Enterprise.

The writ petition was filed challenging the order passed by

the appellant organization dated 05.08.2015 which is an

order under Section 7A of the Employees' Provident Fund

and Miscellaneous Provisions Act, 1952 (in short, the 'said

Act'). Though several grounds were raised by the first

respondent/writ petitioner, the primary ground on which

the challenge was made to the said order was on the ground

of a wrong understanding of the directions issued by the

Division Bench in the earlier appeal being APOT 622 of

1997 dated 03.03.1998. Consequently, it was argued that

the order was in violation of principles of natural justice and

outcome of non-application of mind and, therefore, NTPC

Limited was entitled to file a writ petition against the said

order though an appellate remedy is provided under the

said Act. The learned Single Judge after going through the

order impugned before it, allowed the writ petition and

directed to determine the liability afresh. Further direction

was also issued to complete such exercise within a period of

six months and also not to give effect to the order dated

05.08.2015. The correctness of the said order is questioned

before us in this appeal.

Learned counsel appearing on behalf of the

appellant organization would vehemently contend that the

learned Single Judge ought not to have remanded the

matter for the second time when the Division Bench on

earlier occasion had remanded the matter and thereafter

elaborate exercise was done by the appellant organization,

several persons were examined and all the efforts have been

rendered wasteful and ultimate victim is the employee.

Further, it is submitted that the writ petition ought not to

have been entertained as there is effective alternative

remedy of appeal under the said Act and there is a

condition of pre-deposit to be made by the management, if

they have to file an appeal which was not complied with by

the writ petitioner.

Learned counsel appearing on behalf of the

respondent/writ petitioner submits that the learned writ

court had rightly remanded the matter as it found that the

order suffers from infirmity on a wrong understanding of

the judgment of the Division Bench in the earlier round of

litigation. Therefore, it is submitted by the learned counsel

that a fresh exercise may be done. Further, it is submitted

with regard to the amount which has already been lying

with the appellant organization, it is not clear as to whether

it reached the employees. In reply to such submission,

learned counsel appearing on behalf of the appellant

submitted that substantial amount has been disbursed to

the employees upon production of proper identification and

only the claims of 104 employees are pending for want of

proper authentication and the appellant organization will

ensure that the amount is to be paid to the right person

with right quantum.

We have elaborately heard learned counsel for the

parties and perused all the materials on record placed

before us. The learned Single Judge was of the view that the

order impugned dated 05.08.2015 before it was passed on

account of wrong understanding or misunderstanding of the

scope and observation made by the Division Bench in its

judgment dated 03.03.1998 in APOT 622 of 1997. To

examine the correctness of the said finding, we have

carefully perused the judgment of the Division Bench as

well as the materials placed before us by either side. The

Division Bench while disposing of the appeal directed the

appellant organization to keep the order dated 01.10.1996

(order under Section 7A of the said Act) in abeyance and

gave the respondent/writ petitioner an opportunity to

produce documents and directed the appellant organization

to produce all records and documents which are in their

possession in respect of the contract. Thereafter, the

appellant authority, if they are unable to find out the

relevant materials required for the purpose of determination

as indicated in the judgment, would take steps in the

matter and further for the purpose of getting name and

address of the employees and workmen, each and every

contractor should be summoned and should be enforced

before the authorities of the appellant concern and after

giving an opportunity of hearing to all the parties in the

matter in accordance with law, the authorities concerned

will pass an order afresh either confirming the order of

revoking and/or altering the order that have already been

passed. A time frame has also been fixed. Thus, what was

required to be done by the appellant organization in

coordination with the respondent management and the

other stakeholders and contractors were clearly spelt out by

the Division Bench. Therefore, it needs to be seen as to

whether such exercise was conducted. On a reading of the

order dated 05.08.2015, we find that the exercise directed

to be undertaken by the appellant have been properly

understood and the workmen employees engaged in the

establishment were identified through contractors and there

were more than four persons representing the

establishment and there were also more than 65 persons

representing the various contractors and 14 persons

representing various trade unions as well.

After considering the materials available on record,

what the appellant organization was required to do has

already been spelt out by the Division Bench. It can also

confirm the earlier order dated 01.10.1996 but while

confirming such order, independent reasons have to be

given because a detailed enquiry has been conducted.

Statements have been recorded. Certain documents have

been collected. The organization was also empowered to

pass fresh orders, however, a small mistake crept in at that

stage when the appellant organization passed order dated

05.08.2015 by stating that there is no dispute regarding the

dues determined in the original order under Section 7A of

the said Act dated 01.10.1996.

Thus, in our considered view, it was rightly

construed by the learned Single Judge that the appellant

organisation misunderstood the earlier order passed by the

Division Bench. What the appellant organization ought to

have done is that based on the outcome of the enquiry they

ought to have taken an independent decision and arrive at a

conclusion and pass a reasoned order which exercise have

not been done. The learned Single Judge was justified in

remanding the matter. Therefore, to that extent, we agree

with the observation of the learned Single Judge. Insofar as

the question as to whether the entire exercise already done

by the organization has to be interfered by us, we hold that

there is no fault attributed to the organization with regard

to persons who were called for the said enquiry both on the

side of the contractors as well as the side of the trade

unions. Therefore, one more exercise to summon all of

them would be thoroughly a wasteful endeavour and

unnecessary. We say so because already the material is

available with the appellant organization. Therefore, we are

of the view that the penultimate portion of the order passed

by the appellant organization alone requires to be set aside

and a fresh order shall be passed by the appellant

organization on the available materials which were secured

pursuant to the enquiry conducted on the directions issued

by the Division Bench.

In the result, the writ appeal is partly allowed and

the direction issued by the learned Single Judge is modified

to the extent by setting aside the order dated 05.08.2015 in

its entirety keeping all the materials which have been

directed by the appellant organization through enquiry

conducted, we direct the appellant organization to pass a

fresh speaking order on the materials which they have

collected and come to a conclusion and take a decision in

the matter. This exercise should be completed within a

period of eight weeks from the date of receipt of the server

copy of this order.

With the above observations, the instant appeal

stands disposed of. Consequently, the connected

application also stands disposed of.

(T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)