J K College Of Nursing & ... vs Uoi & Ors
2011 Latest Caselaw 2777 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 24th May, 2011

+              W.P.(C) 8195/2010 & CM No.21123/2010 (for stay)

%      J K COLLEGE OF NURSING &
       PARAMEDICALS                            ..... Petitioner
                    Through: Mr. Rabin Majumdar, Advocate.

                                   Versus
       UOI & ORS                                        ..... Respondents
                          Through:      Mr. Ruchir Mishra, Advocate for
                                        R-1.
                                        Mr. Shivanath Mahanta, Advocate
                                        for R-2&4 to 6.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may              Yes.
       be allowed to see the judgment?

2.     To be referred to the reporter or not?             Yes.

3.     Whether the judgment should be reported            Yes.
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 10 th September, 2010 of the

Employees' Provident Fund Appellate Tribunal, New Delhi dismissing

the appeal of the petitioner against the order under Section 7A of the

Employees' Provident Funds and Miscellaneous Provisions Act, 1952,

finding the petitioner to be employing more than 20 employees and thus,

though covered by the provisions of the Act but in non-compliance

thereof.

2. It is the case of the petitioner that it has never employed even 20

persons and the EPF Authority had wrongly found the petitioner to have

engaged 37 persons and having not extended the benefit of the Act to the

said employees.

3. The Appellate Tribunal, relying upon Saraswati Construction

Company v. Central Board of Trustees 171 (2010) DLT 3, held that if

any establishment or employer claims to be not covered under the said

Act, then it is for the employer to place sufficient cogent and convincing

material before the designated authority in an enquiry under Section 7A

of the Act, so as to satisfy the Authority with regard to non-applicability

of the Act and further held that on failure to place any such material, the

onus cannot be shifted on the EPF authorities to prove the applicability of

the Act. It was yet further held that the EPF authorities under no

circumstances can be in possession of necessary records evidencing the

extent of strength of employees in any particular establishment.

4. The Tribunal further held that the petitioner in the present case had

failed to place any such material and had not produced any documents to

show its staff strength and on the contrary the order of the EPF Authority

in appeal before the Tribunal revealed that the staff strength was

determined on the basis of attendance register and salary register. The

Tribunal held that there was no material to disbelieve the documents and

no inconsistency was noticed in the order of the EPF Authority.

5. The contention of the counsel for the petitioner is that the judgment

of this Court in Saraswati Construction Company (supra) is per

incuriam, having not noticed the provisions of Section 101 of the Indian

Evidence Act, 1872. It is contended that burden necessarily has to be on

the person asserting the fact and in the present case it was the EPF

Authority that was asserting that the petitioner was employing more than

20 persons and the Tribunal has wrongly held that the burden was on the

petitioner.

6. It is further contended that there is no finding whatsoever of 37

employees in any of the orders of the EPF Authority also. It is yet further

contended that there is no such plea in the counter affidavit filed before

the Tribunal also.

7. Per contra, the counsels for the respondents appearing on advance

notice have invited attention to Section 106 of the Evidence Act

providing that where any fact is especially within the knowledge of any

person, the burden of proving that fact is upon him. With respect to the

argument of there being no finding of 37 employees, it is contended that

as per the attendance register of the petitioner there were 37 employees.

On enquiry, as to where it has been so found, the counsel for the

respondent has invited attention to the counter affidavit filed in the

present writ petition. However it is not deemed expedient to refer to the

said counter affidavit since, neither was the same allowed to be filed and

further since the counsel for the petitioner claims that he has not received

copy thereof. The counsel for the respondent has also contended that the

petitioner in its letter dated 21st October, 2010 to the respondent no.3 had

admitted the liability and had enclosed a Demand Draft for `1,50,000/-

towards part payment and had sought installments for payment of the

balance.

8. The counsel for the petitioner rejoins by contending that the said

amount was paid per force and cannot prevent the petitioner from

agitating its rights.

9. I am unable to agree with the contention of the counsel for the

petitioner that the judgment in Saraswati Construction Company is per

incuriam and I have no reason whatsoever to disagree from the view

taken therein. The strength of employees can be within the exclusive

knowledge of the establishment only and it is the duty of the

establishment to satisfy the EPF authorities of the strength of its

employees. The emphasis placed on Section 101 of the Evidence Act is

misplaced. The said rule is a rule of evidence in the Court and in my

opinion would not apply to the proceedings before the EPF authorities.

Though the counsel for the petitioner invites attention to Section 7(J) of

the Act but the same is not found to be of any assistance in this regard;

rather the same enables the Tribunal, as distinct from the EPF Authority,

to regulate its own procedures and vests only certain powers of the Civil

Court in the Tribunal to enable the Tribunal to prosecute the witnesses

falsely deposing before it. In any case, the reliance by the counsel for the

respondents on Section 106 of the Evidence Act is also apposite. The

Division Bench of the Calcutta High Court also in State of West Bengal

Vs. Board of Revenue, West Bengal 1975 LIC 1162 relied upon Section

106 of the Evidence Act to hold the burden in such cases to be on the

establishment. I also find that LPA No.400/2010 preferred against the

judgment in Sarswati Construction Co. was dismissed on 2 nd June, 2010.

10. I also find the view in Saraswati Construction Co. (supra) to be in

consonance with the judgments of the other High Courts. Reference may

be made to:-

(a) Chudasma Engineering Works Vs. RPFC, Bangalore 1985

(67) FJR 363 (Karnataka).

(b) Employees' State Insurance Corporation Vs. Rasu Tools

Ltd. (2000) I LLJ 372 (Andhra Pradesh)

(c) Regional Director, ESI Corporation, Bangalore Vs.

Malekopmath Metal Forms Private Ltd. 2001 (6) Kar. LJ

(d) Regional Director, ESI Corporation Vs. G. Sivaprasad

(2010) I LLJ 279 (Kerala).

(e) Gopi Chand Vs. Employees' State Insurance Corporation

172 (2010) DLT 565.

(f) Syndicate Printers Vs. Regional Director, ESI Corporation

MANU/TN/0515/2011.

11. Reference may also be made to the Division Bench judgment of the

Patna High Court in Bankim Chandra Chakravarty Vs. Regional

Provident Fund Commissioner AIR 1958 Patna 314 laying down that

once the authorities under the Act have held the number of employees in

the establishment to be more than required to bring the establishment

within the purview of the Act, it is up to the person challenging the said

finding to establish that infact the number is less. A Single Judge of this

Court in Laksmi Restaurant Vs. The Regional Provident Funds

Commissioner, Delhi 10 (1974) DLT 369 also held that if anybody feels

aggrieved by some order and files a petition in the High Court, he must

bring sufficient material before the Court to displace the finding and the

same has nothing to do with the question of onus of proof before the

Provident Funds Commissioner. It was further held that in matters like

this, the question of onus of proof is immaterial; the Provident Funds

Commissioner is an authority created by the statute who has to administer

the statutory provisions according to law and for this purpose he is

entitled to collect material by resort to powers under various provisions of

law including by examination of the books of accounts and others records

of establishments.

12. In the present case, the EPF Authority in the order dated 19th

February, 1999 has recorded as to how the petitioner employer dodged

the proceedings and failed to appear and produce documents repeatedly.

Similarly in the order dated 9th November, 2000 of the EPF Authority

also, it is recorded that records maintained by the petitioner establishment

are in complete variance with the statement originally made by the same

establishment; that though the petitioner claimed most of the employees

to be excluded from the purview of the Act but could not submit any

proof thereof; that the names and salary reflected in the salary register

were totally at variance with the survey account taken from the ledger for

the relevant period and the salary records maintained for teaching and

non-teaching staff were found to conceal the names of all the employees.

The EPF Authority in the said order further recorded that the petitioner

did not even reveal the particulars and address of the various persons

whose names figured on its records. The EPF Authority accordingly held

the petitioner to be guilty of concealment of facts regarding employees

and salary, of fabrication of records and of evasion of statutory

obligations.

13. In the present case, the petitioner has not placed any material

before this Court to displace the findings returned by the authorities

below and which onus as laid down in Laksmi Restaurant (supra) was

definitely on the petitioner.

14. Moreover, the aforesaid are findings of facts relating to the

proceedings before the Authorities and no ground is shown for

interference in exercise of the powers of judicial review. In any case, the

counsel for the petitioner had confined the argument as aforesaid only to,

the reasoning given by the Tribunal as to burden of proof, being

erroneous in law.

15. The counsel for the respondents has relied on Syed Yakoob v. K.S.

Radhakrishnan 1963 INDLAW SC 153 & Hari Vishnu Kamath v.

Ahmad Ishaque 1954 INDLAW SC 212 as to the scope of writ

jurisdiction.

16. As far as the arguments of the counsel for the petitioner of there

being no mention of number of employees as 37 in the order under

Section 7A is concerned, a perusal of the order of the Tribunal shows that

it was the argument of the petitioner itself before the Tribunal that the

order under Section 7A covering it under the Act on the allegation that it

engages 37 persons is illegal. A reading of the said order does not show

that there was any dispute in this regard and that was the precise

challenge before the Tribunal. A perusal of the writ petition also does not

show that any ground in this regard has been taken. The counsel for the

petitioner admits that it has not been expressly so stated in the writ

petition that there is no finding of 37 employees. All this leads one to

believe that the challenge now being made orally on this ground is only to

buy time.

17. There is no merit in the petition the same is dismissed. No order as to

costs.

RAJIV SAHAI ENDLAW (JUDGE) May 24, 2011 pp