M/S Bharat Polychem Ltd. vs Regional Provident Fund ...
2011 Latest Caselaw 3452 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 20th July, 2011
+                           W.P.(C) 2856/2008

         M/S BHARAT POLYCHEM LTD.                ..... Petitioner
                      Through: Mr. D.N. Vohra, Adv.

                                   Versus

         REGIONAL PROVIDENT FUND COMMISSIONER
         & ANR.                                ..... Respondents
                     Through: Mr. Saurabh Chadha, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                    NO
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             NO

3.       Whether the judgment should be reported            NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 16 th March, 2007 of the

Assistant Provident Fund Commissioner (APFC), Delhi dismissing the

application of the petitioner Company under Section 7B of the Employees'

Provident Funds & Miscellaneous Provisions Act, 1952 (EPF Act) for

review of the order dated 17th May, 2006 issued in exercise of powers

under Section 7A of the Act.

2. Notice of the petition was issued and counter affidavit has been filed

by the respondents. Though no interim order as sought was earlier granted

but CM No.4966/2011 was filed again seeking stay of recovery in

pursuance to the order dated 16th March, 2007 and vide order dated 6 th

April, 2011 coercive steps against the petitioner Company were stayed.

3. The counsel for the petitioner company today, instead of arguing on

the petition has only urged that provident fund dues against the petitioner

Company cannot be recovered from Sh. Govind Gupta, Director of the

petitioner Company, without first seeking to recover the same from the

petitioner company. It is urged that the respondents without making any

attempt to recover the dues form the petitioner company, are seeking to

recover the same by taking coercive action against the said Sh. Govind

Gupta.

4. The writ petition has not been filed by Sh. Govind Gupta but by the

company. If Sh. Govind Gupta is aggrieved by the steps if any taken for

recovery against him, it is for him to approach the Court. He has not done

so. Though the petition has been filed and is being pursued on behalf of

the petitioner company by the said Sh. Govind Gupta who is stated to be

the Director of the petitioner company and who admittedly has been

representing the petitioner company throughout before the APFC also but

the company is an entity distinct from its Director and the petition

preferred by the company cannot be treated as a petition by the Director of

the company.

5. It has in any case been enquired from the counsel for the petitioner

company as to what are the assets of the petitioner company. It is stated

that the petitioner company is possessed of properties, shares, monies in

Banks. If that be so, then I do not see as to why Mr. Govind Gupta as

Director of the petitioner company does not pay the PF dues.

6. Though the counsel for the petitioner has not argued the petition as

filed but the same has been perused. The Regional Provident Fund

Commissioner (RPFC) in the order dated 17th May, 2006 has held that

upon the petitioner company having failed to remit provident fund, pension

fund, deposit linked insurance fund contributions and administrative

charges in accordance with the Act, for the purposes of determining the

amount due, an inquiry under Section 7A of the Act was initiated and the

petitioner company was afforded an opportunity to represent the case, first

on 26th December, 2001 and thereafter on repeated dates on some of which

Mr. Govind Gupta, Director of the petitioner company appeared and

produced the documents. The RPFC vide the said order on the basis of the

material before him determined an amount of `2,33,769/- as payable by the

petitioner for the period September, 1997 to November, 2001.

7. The petitioner preferred a review of the aforesaid order and which as

aforesaid has been dismissed vide order dated 16 th March, 2007 impugned

in this writ petition.

8. The counsel for the respondents has contended that the order under

Section 7A was appealable and the petitioner having not preferred appeal

thereagainst, the same has attained finality. A perusal of Section 7B and

particularly sub-section (5) thereof also shows that though no appeal lies

against an order rejecting an application for review but appeal is permitted

against an order passed under review as if the order passed under review

were the original order under Section 7A.

9. A perusal of the order dated 16 th March, 2007 shows that APFC

literally reviewed the order dated 17th May, 2006 and reached a conclusion

that there was no error as pointed out in the order dated 17th May, 2006.

An appeal against such an order would lie under Section 7B(5) (supra).

This writ petition is not maintainable for said reason.

10. As far as the argument of the counsel for the petitioner of no

recovery being possible from Sh. Govind Gupta is concerned, Mr. Govind

Gupta has admittedly stood guarantee for payment of the dues. The

counsel for the respondents has also invited attention to Section 2(e) of the

Act to contend that Mr. Govind Gupta is in position of employer and thus

liable. However since as aforesaid that is not the question raised in the

writ petition, need is not felt to adjudicate the same.

11. The present writ petition would thus be not maintainable for the

reason of availability of alternative efficacious remedy of appeal which has

not been availed of.

The petition is therefore dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JULY 20, 2011 bs