Ripley & Company & Anr vs The Regional Provident Fund ...
2023 Latest Caselaw 4182 Cal

Form No.J(2)



                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE
Present :

THE HON'BLE JUSTICE RAJA BASU CHOWDHURY

                         W.P.A. 12517 of 2023
                     Ripley & Company & Anr.
                              Versus
     The Regional Provident Fund Commissioner-II, Employees'
                   Provident Organization & Ors.


For the petitioners                :       Mr. Soumya Majumder
                                           Mr. Sandip Srimani
                                           Mr. Subhojit Roy
                                           Mr. Aditya Sarkar

For the PF Authorities             :       Mr. S.C.Prasad

Heard on                               :   13.07.2023

Judgment on                            :   13.07.2023


Raja Basu Chowdhury, J:

      1.    Challenging the order dated 17th March 2023, passed by the

            Appellate Tribunal under Section 7(I) of the Employees' Provident

            Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred

            to as the "said Act"), in EPO-2 of 2021the present writ application

            has been filed.

      2.    The petitioner no. 1 is engaged in the business of stevedoring,

            handling and transportation of cargo on behalf of its clients. The

            petitioners claim to be covered under the provisions of the said Act.

            Challenging the order dated 16th October 2020, passed under

            Section 7A of the said Act for the period August 1995 to September
                                     2




     2000, an appeal was filed before the Appellate Tribunal under

     Section 7(I) of the said Act. In connection with the aforesaid appeal,

     an application for waiver of pre deposit in terms of Rule 7(2) of the

     said Act was filed before the Appellate Authority.

3.   Mr. Majumder, learned advocate appearing for the petitioners

     submits that the Regional Provident Fund Commissioner had

     previously, by orders dated 22nd October 2014 and 11th February

     2015 passed under Sections 7A and 7B of the said Act, respectively

     had determined the liability of the petitioners. Challenging the

     same, an appeal was filed before the Appellate Authority which was

     registered as ATA no. 372 (15) 2015. It is contended on behalf of the

     petitioners that on the basis of the aforesaid orders, which formed

     subject matter of the aforesaid appeal, a sum of Rs. Rs.22,94,026/-

     had already been recovered from the petitioners. The said appeal

     was, however, allowed by an order dated 24th October 2016 by the

     Appellate Tribunal by, inter alia, observing as follows:-

                "......In case there is default in remittances of statutory dues,
                registered contractor has liabilities to remit statutory dues, not
                the employer. Despite specific knowledge that M/s Econ India
                was having its separate PF code, respondent passed fastened

the PF liability upon the present appellant establishment, which is against the provisions of the law. Liability of unregistered contractors would fall on the principle employer in view of clause 30 of the EPF scheme, 1952 but not in case of registered contractors. Accordingly, by allowing present appeal, impugned order passed by respondent set aside. However, respondent is free to initiate proceedings against M/s Econ India, as per provisions of the law. File be consigned to record room after due compliance."

4. Since the appeal was allowed and the petitioners were entitled

to refund of the sum of Rs.22,94,026/-, by a communication

in writing dated 30th November 2016, the petitioners had

called upon the Regional Provident Fund Commissioner to

refund the said sum consequent upon the orders dated 22nd

October 2014 and 11th February 2015 being set aside by the

appellate tribunal vide its order dated 24th October 2016.

5. Mr. Majumder, learned advocate appearing for the petitioners

invite this Court's attention to the subsequent letter issued by

the writ petitioners dated 9th March 2018, repeatedly calling

upon the Provident Fund authorities to refund the sum of Rs.

Rs.22,94,026/-. He says that the said sum has, till date, not

been refunded.

6. In the interregnum, since a further determination had been

made under Section 7A of the said Act and challenging the

same the appeal had been filed being EPO-2 of 2021, the writ

petitioners, while seeking waiver of the pre deposit as required

under the provision of the said Act, had brought to the notice

of the Tribunal the factum of non-refund of the said sum of

Rs.22,94,026/- by the authorities and, had prayed for waiver

of the pre deposit on the aforesaid ground.

7. Mr. Majumder submits that on the basis of the determination

made under Section 7A of the said Act which forms the

subject matter of challenge in the present appeal, the

petitioners ordinarily would be required to pay a sum of

Rs.29,59,847/- as pre deposit. He says that the respondents

are holding Rs.22,94,026/- and a sum of Rs.1,97,682/- has

already been realised. As such, the petitioners at best can be

called upon to pay a sum of Rs.4,68,139/-. He says that the

Tribunal, while passing the aforesaid order, which is

impugned in this application, did not take into consideration

the aforesaid aspect at all. The aforesaid order on such

ground cannot be sustained.

8. Per contra, Mr. Prasad, learned advocate appearing for the

Provident Fund authorities submits that there is no

irregularity on the part of the Appellate Authority in directing

the petitioners to pay 75 per cent of the amount already

demanded. He says that the statute recognises such pre

deposit and the petitioners cannot escape their liability and

cannot be permitted to maintain the aforesaid appeal without

making deposit as required by the statute.

9. He, however, acknowledges that the respondents have already

realised Rs Rs.22,94,026/- in connection with the previous

proceedings and despite demand, such sum has, still date,

not been refunded in favour of the petitioners. He says that

the respondents are in the process of challenging the

aforesaid order, however, till today, no proceedings had been

initiated.

10. Heard the learned advocates appearing for the respective

parties and considered the materials on record.

11. I find that on the basis of the determination made by the

respondents vide order dated 16th October 2020, a sum of

Rs.39,46,463/- has already been determined by the

respondents to be due and payable by the petitioners in

respect of the determination made by them for the period

August 1995 to September 2000. I find that 75 per cent of the

aforesaid amount works out to Rs.29,59,847/-.

12. Admittedly, I find that the respondents are holding a sum of

Rs.22,94,026/-. As such, in ordinary course, the petitioners

should be entitled to the benefit of the aforesaid sum,

especially when there appears to be no challenge to the order

dated 24th October 2016 passed by the Employees' Provident

Funds Appellate Tribunal.

13. Although, Mr. Prasad, learned advocate appearing for the PF

authorities submits that steps are being taken to challenge

the said order, he has, however candidly submitted that till

date no proceedings have been initiated. Having regard to the

aforesaid, I am of the view that the petitioners cannot be

denied the benefit of the aforesaid amount, which has been

retained by the respondents.

14. Having regard to the aforesaid and on the basis of the

direction issued by the Appellate Authority for deposit of 75

per cent of the amount due, as determined by order dated 16th

October 2020 passed under Section 7A of the said Act, I find

that a sum of Rs.4,68,139/- is required to be deposited by the

petitioners after giving credit to the sum of Rs.22,94,026/-

and Rs.1,97,682/-.

15. The petitioners are, therefore, directed to deposit a sum of Rs.

4,68,139/- with the Provident Fund authorities, for the

appellate authority to take up hearing of this appeal.

16. Let such deposit be made within a period of three weeks from

date.

17. It is further made clear that in the event the respondents

challenge the order dated 24th October 2016 and succeeds in

the challenge, in such event the petitioners would be required

to make over the balance sum as determined by the Appellate

Authority under Section 7(I) of the said Act.

18. If the aforesaid deposit is made within the time specified, the

Appellate Authority shall hear out and dispose of the appeal

on merits.

19. With the above directions and observations, the writ petition

being WPA 12517 of 2023 is accordingly disposed of.

20. Urgent photostat certified copy of this order, if applied for, be

given to the parties on priority basis upon completion of

requisite formalities.

(Raja Basu Chowdhury, J.)

Saswata Assistant Registrar (Court)