M/S. Modern Nursing Home vs The Employees Provident Fund ...
2023 Latest Caselaw 4565 Cal

Form No.J(2)

                IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                        APPELLATE SIDE

Present :
The Hon'ble Justice Raja Basu Chowdhury


                                 WPA 15878 of 2023

                     M/s. Modern Nursing Home
                                -Versus-
        The Employees Provident Fund Organization, Government
                            of India & Ors.


For the petitioner                 :     Mr. Sanjay Saha, Adv.,
                                         Ms. Sk. Kiran, Adv.

For the Provident Fund
Authorities                        :     Ms. Aparna Banerjee, Adv.

For the respondent no.7            :     Mr. Suman Chattopadhyay, Adv.

Heard on                                 :     31.07.2023
Judgment on                              :     31.07.2023

Raja Basu Chowdhury, J:

1. The present writ application has been filed, inter alia,

questioning the authority of the respondent Authorities

to initiate proceedings under Section 7A of the

Employees' Provident Funds and Miscellaneous

Provisions Act, 1952 (hereinafter referred to as the "said

Act").

2. Mr. Sanjay Saha, learned Advocate representing the

petitioner, submits that although, no order under

Section 7A of the said Act has been passed, however,

summons has duly been issued by the Regional

Provident Fund Commissioner calling upon the

petitioner to appear before him in connection with the

proceedings under Section 7A of the said Act. It is

submitted that at no point of time there were more than

six employees employed by the petitioner.

3. Notwithstanding the aforesaid, a PF Code had been

allotted and the petitioner was forced to pay a sum of

Rs.3,000/- towards provident fund contributions. It is

also the petitioner's case that at present there are not

more than seven employees and as such, the initiation

of proceedings by the respondents for determination of

provident fund contributions payable by the petitioner is

bad in law and without jurisdiction.

4. Ms. Aparna Banerjee, learned Advocate, enters

appearance on behalf of the Provident Fund Authorities.

She has placed before this Court an application

submitted by the petitioner before the Office of the

Regional Provident Fund Commissioner, being a

proforma, for coverage under the provisions of the said

Act. By placing reliance on the aforesaid application/

proforma she submits that the petitioner had not only

disclosed that the employment strength of the petitioner

was 20 in number but had also given particulars of the

names of such employees and the amount of wages paid

to them. It is on the basis of the aforesaid application/

proforma that the respondents had allotted a provident

fund code number.

5. By producing a letter dated March 31, 2011, issued

by the Provident Fund Commissioner, Sub-Regional

Office, Jangipur, she submits that the Provident Fund

Authorities had duly intimated the petitioner with

regard to the aforesaid coverage and the allotment of the

code number.

6. Let the aforesaid documents, as placed by Ms.

Banerjee, before this Court, be retained with the

records. Ms. Banerjee submits that the present

application has been filed to delay the determination of

provident fund contributions payable by the petitioner.

The present application deserves to be dismissed with

costs.

7. Heard learned Advocates appearing for the respective

parties and considered the materials on record. I find

that the writ petitioner in the present writ application

has, inter alia, admitted that in the year 2011 the

Provident Fund Authorities had allotted a provident

fund code number to the petitioner. Although, it has

been argued that such allotment of code number was

made forcefully, no contemporaneous documents have

been disclosed by the petitioner in the writ application

to demonstrate that the petitioner had objected to such

allotment of code number.

8. From the documents placed before this Court by Ms.

Banerjee, it would appear that the petitioner itself,

through its Proprietor, Basiruddin Sk, had applied for

allotment of code number by submitting a proforma for

coverage, under the provisions of the said Act. The

Acquittance Roll for the month of December 2010, has

also been annexed to such application. From such

Acquittance Roll which is counter-signed by the

respective employees, it would be apparent that around

twenty employees were working with the petitioner in

the month of December 2011. It is on the basis of the

aforesaid proforma that the Provident Fund Authorities

had issued the letter dated March 31, 2011 and had

called upon the petitioner to make payment of the

Employees' Provident Fund Contributions from January

2011 onwards. There is no challenge to the aforesaid

communication.

9. Having regard to the aforesaid and taking into

consideration the fact that the petitioner itself, through

its Proprietor, in the year 2010, had applied for being

covered under the provisions of the said Act, on the

basis of its employment strength, cannot be permitted

to contend otherwise. The petitioner, however, has

conveniently suppressed the aforesaid documents and

has, inter alia, claimed in paragraph 3 of the aforesaid

application that the respondents had forcefully Awarded

a provident fund code to the petitioner, I find that the

present application has also been affirmed by the said

Basiruddin Sk himself who had made the application for

being covered under the provisions of the said Act.

10. Having regard to the aforesaid, I am of the view that

the petitioner is not entitled to any relief. The present

application is accordingly dismissed. However, there will

be no order as to costs.

11. Let urgent photostat certified copy of this order, if

applied for, be made available to the parties upon

compliance with all requisite formalities.

(Raja Basu Chowdhury, J.)

Tanmoy Ghosh Assistant Registrar (Court)