Food Corporation Of India vs Regional Provident Fund ...
2002 Latest Caselaw 1531 Del

JUDGMENT

Khan, J.

C. Ms. 7302/2002 & 7301/2001 in C.W. 2413/86

1. Petitioner's writ petition (CW 2413/86) was dismissed by court order dated 20.9.2001. The Corporation has now filed this first application for condensation of delay of 280 days or so in filing the second application which is for recall of the dismissal order and revival of the writ petition.

2. Petitioner wants us to revive the petition primarily on the claim that its case was covered by the Supreme Court judgment in Civil Appeal No. 4552/89 entitled Food Corporation of India v. Provident Fund Commissioner decided on 26.10.1989. It also states its own reasons for suffering dismissal of the petition and for approach in this court after considerable delay for recall of the dismissal order. The explanation offered is that the matter was handled by successive counsel and that its track was lost midway despite occassional inquiry being made from the court registry from time to time about its status. It was only on 21.5.2002 that petitioner's counsel Ms. Kiran Suri, while checking up the status of the case from internet, found that it was listed on 21.9.2001 without showing the name of petitioner's counsel and was dismissed. She thereafter applied for the certified copy which was received on 25.6.2002 leading to filing of these applications thereafter. It is submitted that petitioner was not aware of the sate of hearing though it had done everything under its control to pursue the case and that its non-appearance was not deliberate and willful.

3. L/C for petitioner has cited several Supreme Court judgment to urgue that a lenient view may be taken in the matter to condone the delay in filing the restoration application in the interest of justice, more so when the point in issue was covered by the Supreme Court judgment in Civil Appeal No. 4552/89. Both applications are supported by the affidavits subscribed by the counsel.

4. Ordinarily we would have declined to condone the delay in filing the second application for revival of writ petition in the facts and circumstances of the case, but we felt persuaded to test the petitioner's claim that the subject matter of the petition was covered by the Supreme Court judgment and to eliminate any chance of miscarriage of justice. Both applications are accordingly allowed on this premise. Delay in filing CM 7301/2002 is accordingly condoned and the second application is also allowed and petitioner's CW 2413/86 restored to its original number.

C.W. 2413/86.

5. Coming to the brass tacks, petitioner Corporation is resisting the demand of Rs. 32,15,607.50 in respect of provident fund dues of contract workers allegedly engaged by it from 1975 to 1984. It disowned the liability first altogether on the plea that employees were engaged by contractors. It also meanwhile asked the Provident Fund Commissioner to summon the contractors in question during enquiry under Section 7-A of the Act. The Commissioner rejected its first plea by order dated 19.3.84 holding that provisions of Provident Fund Act were applicable to it. He then proceeded to conduct the inquiry under Section 7A and eventually passed order dated 18.10.1986 holding the Corporation liable to pay provident fund dues of Rs. 32 lacs and odd.

6. Petitioner's main grievance and in fact the only issue urged before us by its counsel Ms. Kiran Suri was that the Regional Provident Fund Commissioner's failure to summon the contractors engaged from 1975-84 had vitiated the inquiry under Section 7A of the Act and alos the consequential order determining the Corporation liable for Rs. 32 lacs or so. She also alleged that Commissioner had passed an ex-parte award without affording a reasonable opportunity to the Corporation to put up its case. All this according to her had vitiated his action in the face of Supreme Court judgment in Civil Appeal No. 4552/89 FCI v. Provident Fund Commissioner. She relies upon the following observations in that judgment:--

" The Commissioner should exercise all his powers, collect all evidence and collect all material before coming to an appropriate conclusion. That is the legal duty of the Commissioner. It would be failure to exercise jurisdiction, particularly when a party to the proceedings requests for summoning evidence from a particular person."

7. Relying on this, learned counsel submits that since petitioner had asked the Commissioner for summoning the contractors to ascertain the particulars of the employees/labour engaged by them which he had not done, he should, therefore, be held to have failed to exercise his jurisdiction which invalidated his order in the process.

8. The submission made by learned counsel appears attractive on the first blush but it, however, fails on close scrutiny. An examination of Commissioner's order passed under Section 7-A shows that he had dealt with petitioner's request for summoning the contractors and had repeatedly asked it to submit the relevant record to facilitate the determination of this liability. But petitioner had failed to comply with this raising the interference that it had either with held the record or avoided to produce it for some reason. It was in that context that Commissioner had fallen back upon other sources to collect the requisite data for determination of the liability. It is not that he had made this determination without any basis or evidence or that he had proceeded in the matter without affording the Corporation a reasonable opportunity of presenting its case. His order, therefore, could not be faulted nor would it fall within the purview of Supreme Court observations in the cited civil Appeal. It appears to us that Corporation was first overtaken by the belief that being a principal employer, it was absolved of the liability. It had contested the demand primarily on that premise. It was only after it had realised the futility of its plea that it had shifted to alternative plank.

9. In this conspectus, it becomes difficult to hold that Commissioner's determination suffered from any lack of basis or want of jurisdiction of that it was hit by the Supreme Court judgment (supra).

10. This petition accordingly fails on its merits also and is dismissed.