Delhi High Court
Jagat Talkies Distributors & Ors. vs Union Of India & Ors. on 17 March, 1997
Equivalent citations: (1997) IILLJ 133 Del
Bench: C Nayar
JUDGMENT
1. The present petition is directed against the respondents impugning the order dated July 24, 1984 passed by the Regional Provident Fund Commissioner which directed the petitioner establishment to produce the record as mentioned in the summons for determination of dues in respect of the provident fund. Similarly the Order dated February 18, 1985 is also challenged asking the petitioners to deposit provident fund dues on the assessment made by the Assistant Regional Provident Fund Commissioner. The amount which the petitioners were directed to deposit is referred to in the second impugned order. Rule was issued in the writ petition and on May 27, 1985 in an interim application of stay the following order was passed :-
"Present : Mr. D. R. Thadani for the petitioner.
Mr. Atul Kumar for counsel for respondents 1 and 2.
C.M. 767/85
On the last date it was wrongly reported that respondent No. 4, Shri Harjit Singh is dead. Shri Harjit Singh, respondent No. 4 is present in person.
This petition under Article 226 of the Constitution of India seeks the quashing of the orders dated July 24, 1984 and February 18, 1985 passed by the Regional Provident Fund Commissioner. The main question relates to the employees of the restaurant/canteen in Jagat cinema. The case of the petitioners is that they are not liable to pay provident fund dues in respect of the employees of the restaurant as they are not its employees and the restaurant is run by a licensee who has his independent separate business. The finding recorded by the Regional Provident Fund Commissioner is that the employees employed in the restaurant/canteen in the premises of the establishment work in or in connection with the work of establishment and also get wages directly or indirectly from them. With this the dues have been determined by the second impugned order. The orders are challenges on several grounds. Rule Nisi has been issued. The prayer made in this application is for stay of the operation of the impugned orders.
One of the questions raised by, the petitioners is that Section 7-A of the Employees Provident Funds & Miscellaneous Provisions Act, 1952 has been declared ultra vires by this Court and as such Respondent No. 2 has no jurisdiction to make any determination either in respect of any liability or any amount. The second question raised is that the Regional Provident Fund Commissioner was obliged in law to first investigate as to whether the establishment as such was liable to be covered or not and unless that finding is given, the question of covering the employees of the restaurant/canteen and making the petitioners liable is illegal. These questions show a prima facie case in favour of the petitioners. At the same time it would be in the interest of justice to safeguard the interest of the employer.
Considering the facts and circumstances of the case I direct that there shall be stay of the operation of the impugned orders conditional on the petitioners depositing with the Regional Provident Fund Commissioner, Delhi within two months 50% of the dues as determined by him. The petitioners shall also furnish security either by a personal bond or any other security for payment of the balance of the 50% of the dues in case the writ petition is ultimately dismissed.
This security will also be to the satisfaction of the Regional Provident Fund Commissioner and will be furnished within two months from today.
It would be open to respondent No. 2 to make the determination of the dues for the future periods but there shall be no recovery of the same till further orders. C.M. 767/85 is disposed of in the above terms."
Similarly for subsequent period this Court on April 9, 1986 followed the earlier order. The same reads as follows :-
"Present : Mr. D. R. Thadani for the petitioner.
Mr. Sanjay Kaul for Respondents 1 & 2.
C.M. 451/86
By order dated May 27, 1985 this Court had directed that 50% of the dues determined would be paid and, for the balance the petitioner would give security either by a personal bond or any other security to the satisfaction of the Regional Provident Fund Commissioner. Now an application has been made regarding deposit of future dues as determined by order dated November 22, 1985. In my view, even for the subsequent period a similar order as in the past would serve the ends of justice. Accordingly the petitioner is directed to deposit 50% of the amount so determined by the Regional Provident Fund Commissioner for the period September, 1983 to August, 1985 vide order dated November 22, 1985 with the Regional Provident Fund Commissioner and give personal bond or any other security for the balance 50% within four weeks from today, to the satisfaction of the Regional Provident Fund Commissioner, Delhi.
Learned counsel for the petitioner states that the petitioner would be entitled to get interest on the amount which is deposited by him with the Regional Provident Fund Commissioner, if he ultimately succeeds in the writ petition. The question of interest will be decided by the Court when the petition is finally decided. C.M. stands disposed of."
2. The respondents by means of an application moved on July 10, 1995 (C.M. 4336 of 1995) stated before this Court that the petitioners are neither appearing before the Provident Fund Authorities nor complying with the directions for depositing of dues as made in the above said orders. The various cheques which were dishonored have been referred to in Annexure-A to the application. The petitioners gave vague and evasive replies to these averments made in the application and did not reiterate that they have complied with the directions as contained in the two orders dated May 27, 1985 and April 9, 1986 respectively. When the application was listed before the Court on February 1, 1996 the learned Judge gave further opportunity to the petitioner and passed the following order :
"Present : Mr. Shyam Kishore, for the petitioner
Ms. Jyoti Singh for the respondent.
C.M. 4336/95 & C.W. 521/85
Having regard to the urgency of the matter, I am satisfied that the matter needs an early hearing. List the matter on March 18, 1996 for regular hearing within first 5 matters. In the meantime, the petitioner will appear before the Provident Fund Commissioner on February 14, 1996 and also comply with the order dated May 27, 1985."
3. There is no specific averment made even today that there is full compliance of the directions as contained in the three orders passed on May 27, 1985, April 9, 1986 and February 1, 1996 respectively. In case the petitioners have not complied with these orders they have no right to be heard either by this Court or by the Provident Fund Authorities. Therefore, it is necessary to pass the conditional order to dispose of the petition in the following manner :-
The petitioners shall appear before the Regional Provident Fund Commissioner on April 21, 1997 at 3 P.M. However, in case there is non compliance of the Orders as mentioned above and the petitioners have not deposited the amounts as determined tentatively by this Court they will have no right to be heard and their pleas shall be rejected. The impugned orders dated April 24, 1984 and February 18, 1985 are set aside subject to the compliance by the directions as given by this Court on three dates as cited above for deposit of the amounts as stated therein. In case no such deposit has been made by the petitioners, the pleas raised by them in this Court as well as before the Regional Provident Fund Commissioner obviously will fail.
4. This petition is disposed of in the above terms.
