M/S Ranjit Sagar Dam Project vs Central Board Of Trustees & Ors.
2011 Latest Caselaw 3018 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 3rd June, 2011
+                                  W.P.(C) 4174/2011

         M/S RANJIT SAGAR DAM PROJECT              ..... Petitioner
                       Through: Mr. S.P. Arora, Advocate
                                   Versus
         CENTRAL BOARD OF TRUSTEES & ORS. ..... Respondents
                     Through: Mr. Ankit Kohli, Advocate for R-1&2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No.

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 writ petition impugns the order dated 4 th June, 2010 of the

Employees‟ Provident Fund Appellate Tribunal dismissing the appeal of

the petitioner against the order of the Provident Fund (PF) Authority under

Section 7A of the Employees‟ Provident Funds and Miscellaneous

Provisions Act, 1952.

2. The case as set out in the writ petition is, that the petitioner was

brought under the purview of the Act with effect from 31 st October, 1980

though Code Number was allotted to it on 14th July, 1987; that the

petitioner was brought under the purview of the Act as a "Building and

Construction Industry"; that the petitioner entered into a Contract

Agreement with M/s Tata Robins Fraser Ltd. (TRF Ltd.) for supply and

commissioning of fully automatic Centrally Operated Belt Conveyor Plant

and also for operations and maintenance of the Plant for three years from

the date of commissioning; that as per the time frame, the trial runs were to

take place with effect from 1st June, 1995; that M/s TRF Ltd. on

completion of the Belt Conveyor System, without seeking written approval

of the petitioner sublet the job of running of Belt Conveyor System to three

agencies; that the PF Authority passed an order for determination of the PF

dues of the employees of Contractors / Sub Contractors and with which the

petitioner did not even have any privity of contract; that an amount of

`7,57,34,740/- was determined as due from the petitioner as the Principal

Employer; that the review applied for under Section 7B of the Act was

rejected by the PF Authority; that aggrieved therefrom the petitioner

preferred an appeal to the Tribunal; that the petitioner was directed to

deposit 50% of the determined amount i.e. `3,78,67,370/- by an interim

order under Section 7-O of the Act in the said appeal and which amount

was so deposited; that the said appeal was partially allowed vide order

dated 11th May, 2000 and the matter was remanded to the PF Authority for

re-determination of the PF dues; that the PF Authority did not follow the

instructions in the remand order and split the inquiry on such remand in

three parts and vide order dated 30th September, 2008 re-determined the PF

liability of the petitioner qua the employees through one of the Sub

Contractors M/s P.K. Talwar & Co. at `3,00,123/-; that an appeal was

again preferred to the Tribunal against the said order and which has now

been dismissed vide order dated 4th June, 2010 impugned in this petition.

3. The main contention of the petitioner, in the writ petition as well as

during the course of hearing is, that the provisions of the Act are not

applicable to the petitioner in as much as the functional activities of the

petitioner do not answer the requirement of Section 1(3)(a) or 1(3)(b) of

the Act; it is contended that the petitioner is not functionally engaged in

building and construction industry, under which head the petitioner has

been brought within the purview of the Act; it is further contended that the

petitioner is a project of the Irrigation Department of the State Government

of Punjab and is not engaged in any building and construction work and is

not liable for coverage as per Section 16(1)(b) and 16(1)(c) of the Act. The

petitioner being fully conscious of the hard reality of having not challenged

the applicability of the Act before the PF Authority or before the Tribunal,

has contended that there is no estoppel in law.

4. It is also the contention of the petitioner that M/s P.K. Talwar & Co.

(impleaded as respondent No.3) as a Contractor has not even been asked to

pay the PF dues of its employees in the first instance and without the same

having been done, the petitioner even as a Principal Employer could not

have been made liable. It is thus contended that the petitioner cannot be

liable for the PF dues of the employees of its Contractors.

5. It is yet further the contention of the petitioner that the amount of

`3,78,67,370/- deposited by it with the Tribunal during the hearing of the

earlier appeal is still lying deposited with the Tribunal and since the entire

demand of `7,57,34,740/- then under challenge was set aside, the petitioner

seeks a direction to the Tribunal for refund of the said amount.

6. It is yet further the case of the petitioner that the re-determination

finding a sum of `3,00,123/- as due from the petitioner is not in conformity

with the earlier order in appeal remanding the matter to the PF Authority. It

is contended that another demand of `24,27,070/- pursuant to the said

remand is subject matter of challenge in W.P.(C) No.2407/2011 in which

notice has been issued by another Bench and which is listed next on 8 th

July, 2011.

7. A perusal of the order dated 11th May, 2000 of the Tribunal

disposing of the appeal earlier preferred by the petitioner shows that it was

the contention then also of the petitioner that its establishment was not a

building and construction industry and as such the employees of the

Contractors were not its employees and that the Contractors being

themselves registered establishment, the petitioner could not be made

liable for the employees of the Contractors.

8. However, the said contention did not find favour with the Tribunal.

9. It was then also the contention of the petitioner that the employees

whose contribution it had been made liable for, had not been identified.

Finding merit in the said contention, the then demand of `7,57,34,740/-

was set aside and the matter remanded. The operative part of the said order

is as under:

"The appeal is partly allowed to the extent of re- determination alone. The case is remanded back for re- determination of PF dues in the light of observations made above in the body of this order."

10. In my opinion, the challenge now made by the petitioner to the

applicability of the Act and to the petitioner being not liable for PF dues of

the employees of its Contractors ought to have been made by challenging

the aforesaid order dated 11th May, 2000 of the Tribunal, which was

neither challenged then nor in the present writ petition. Thus, the question

of applicability of the Act and liability for the employees of the Contractor,

has attained finality on 11th May, 2000 and cannot be re-agitated after 11

years. It may be mentioned that the present writ petition itself has been

filed after nearly one year of the order dated 4th June, 2010 of the Tribunal.

Only a vague explanation is given in the writ petition of the order having

not been communicated to the petitioner, without even mentioning as to

when it was first communicated to the petitioner. The petitioner having

not challenged the order dated 11th May, 2000 in the earlier appeal, cannot

now be permitted to challenge the said two aspects. The principle of

estoppel cannot be invoked in isolation. The said principle has to be read

with other principles viz. of finality of matters. The petitioner having

allowed the said two aspects to have attained finality, cannot at least qua

them invoke the principle of estoppel. It may be however be clarified that

this order will not come in the way of the petitioner if otherwise entitled to

challenge the continued applicability of the Act to itself, in making the said

challenge. However, as far as the demand qua the employees of the

Contractors aforesaid is concerned, the same will remain unaffected by

said challenge even if any made.

11. Finding that the remand vide order dated 11th May, 2000 (supra) was

only for re-determination of PF dues, it has been repeatedly enquired form

the petitioner as to what is wrong with such re-determination finding a sum

of `3,00,123/- as due from the petitioner. The only argument which the

counsel for the petitioner could muster was that the said re-determination

suffers from the same malice as the earlier determination i.e. of not

identifying employees.

12. I am unable to agree. The sum of `3,00,123/- has been found due

towards the employees of one of the said Contractors only i.e. M/s P.K.

Talwar & Co. on the basis of the payments made by the petitioner to the

said Contractor. The counsel for the petitioner has been unable to show

that the amount should be anything other than `3,00,123/-.

13. Faced with the aforesaid, the counsel for the petitioner lastly urged

that since notice has been issued in the other writ petition being W.P.(C)

No.2407/2011, notice should be issued in this petition also.

14. Though the argument, notwithstanding being an argument of last

resort, sounds attractive but such request if any ought to have been made at

the outset. The petitioner after having been fully heard and after this Court

has spent time on the matter and reached the conclusion aforesaid, cannot

be permitted to abort the hearing on such grounds. Mere issuance of notice

in another writ petition stated to be entailing the same controversy would

not entitle a litigant to issuance of notice if the Court does not find any

merit in the writ petition, as the case here is.

15. Similarly, the demand for refund of amounts stated to be lying

deposited with the Tribunal cannot be made for the first time in this

petition, without having been shown to be made to the Tribunal. In any

case, it shall be open to the petitioner to take appropriate steps seeking

refund of the amounts if any due.

16. The writ petition is accordingly dismissed in limine. No order as to

costs.

RAJIV SAHAI ENDLAW (JUDGE) JUNE 03, 2011 „gsr‟..