Mansi Hospital & Maternity ... vs Regional Provident Fund ...
2012 Latest Caselaw 818 Del

*     THE HIGH COURT OF DELHI AT NEW DELHI
2.
                                   Date of Decision: 7th February, 2012

+     LPA 73/2012

      MANSI HOSPITAL & MATERNITY
      HOSPITAL HOME               ..... Appellant
                   Through: Mr. K.R. Chawla, Adv.

                  versus

      REGIONAL PROVIDENT FUND
      COMMISSIONER                ..... Respondent

Through: Mr. Arvind Kr. Verma, Adv.

CORAM:

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE:

1. The moot question which has arisen in these proceedings is as to whether the appellant is covered by the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the PF Act). The facts which emerged on record disclose that Enforcement Officer (EO) of the Regional Provident Fund Commissioner (RPFC) had visited the appellant establishment and on the basis of his inspection, prepared the report dated 17.5.2005 stating that there were 20 employees working in the appellant establishment but the establishment had not reported compliance under the PF Act.

Pursuant to the said report, a notice under Section 7A of the P.F. Act was issued to the appellant. The appellant appeared and stated that the list of employees prepared by the Enforcement Officer was not correct. We may record here that as per the list prepared by the EO, there were 20 employees found working in the establishment of the appellant as per attendance register for the month of January, 2005. These 20 employees included one Mr. Jahoor Khan who is stated to be a part time employee. There is no dispute about the other 19 workers and the entire controversy is as to whether Mr. Jahoor Khan was the employee of the appellant establishment or not. The case of the appellant was that his name was wrongly included as he was never the employee of the appellant. Affidavit of Mr. Jahoor Khan was also filed to this effect whereby Mr.Jahoor Khan had denied his employment with the appellant. After examining the matter, the RPFC returned the finding of fact that Mr.Jahoor Khan was a part time employee and the affidavit of Mr. Jahoor Khan denying his employment was an afterthought. The appellant challenged the order of RPFC by preferring an appeal under Section 7B of the Act which was dismissed by the tribunal confirming the order of the RPFC. Thereafter, the appellant challenged the order of the tribunal by filing a writ petition and vide impugned order dated 27.7.2011, the said writ petition has also been dismissed holding that Mr. Jahoor Khan was a part time employee. It is clear from the above that there are concurrent findings of fact that Mr. Jahoor Khan was a part time employee.

2. Notwithstanding the above, two submissions are made before us by Mr. Chawla questioning the aforesaid findings. In the first instance it is argued that the appellant had made a specific request that Mr. Jahoor Khan be examined by the authorities which was not accepted and this has resulted in the violation of principles of natural justice. To put it otherwise, argument is that without cross-examination of Mr.Jahoor Khan, the aforesaid finding could not have been returned. This argument is noted to be rejected. It is not that the assertions in the affidavit made by Mr. Jahoor Khan which was favourable to RPFC has been accepted without affording opportunity to the appellant to cross- examine him. On the contrary, situation is just a reverse. Mr.Jahoor Khan, as stated above, had given his affidavit stating that he was not an employee. In such a situation, when it was an affidavit which was given in favour of the appellant, question of cross-examination of this person by the appellant did not and could not arise. It was for the RPFC to examine the circumstances under which the said affidavit was given and to come to the conclusion as to whether the assertions made in the said affidavit are to be believed or not. The RPFC gave detailed reasons disbelieving the said affidavit which order is affirmed by the tribunal as well. The position would have been different if some evidence against the appellant was collected by the RPFC to be used against the appellant in the form of affidavit or otherwise. In such a situation, the appellant could not have asked for cross-examination of such a person before the material/evidence is accepted against the appellant. We fail to understand what purpose cross-examination of such a witness would

have served when the deponent had already spoken in favour of the appellant and at the instance of the appellant. It is the appellant who filed the affidavit of Mr. Jahoor Khan and/or caused it to be filed and surprisingly, the appellant itself wanted to cross-examine him. We state at the cost of repetition that in the given situation, the only question was as to whether to accept the averments made in this affidavit or not, namely, whether the statement of Mr. Jahoor Khan inspire any confidence. On this, concurrent findings of fact returned by the three authorities below was that the affidavit of Mr.Jahoor Khan was an afterthought. It has come on record that Mr.Jahoor Khan was not shown on the rolls of the hospital but was paid in cash.

3. Second contention of Mr. Chawla is predicated on para 26B of the Employees Provident Fund Scheme which reads as under:

"26-B. Resolution of doubts.

If any question arises whether an employee is entitled or required to become or continue as a member, or as regards the date from which he is so entitled or required to become a member, the decision of the Regional Commissioner shall be final:

Provided that no decision shall be given unless both the employer and the employee have been heard."

4. On the basis of the aforesaid provision, it is contended that it was incumbent on the part of the RPFC to hear the employee, namely, Mr.Jahoor Khan as well. In support, learned counsel has placed reliance upon the judgment of the Supreme Court in the case of Fertilizers and Chemicals Travancore Ltd. v. Regional Director, ESIC, (2009) 9 SCC

485.

5. We are afraid the provisions of Para 26B are not applicable to the facts of the present case. This para would apply in a situation where an establishment is covered by the provisions of the PF Act but the dispute has arisen as to whether a particular employee is covered by the Provident Fund scheme or not. In such a situation, the dispute would essentially be between the employer and the employee, where the employer contends that the concerned person is not his employee or not covered by the PF Act but the employee on the other hand claims that he is so covered. In such a case, when the dispute arises between the employer and the employee, obviously both the employer and the employee have to be heard and that is what is provided in the aforesaid paragraph. In the present case, on the contrary, the dispute is altogether different, namely, whether the appellant is an establishment which is covered under the PF Act or not. Therefore, reliance on para 26B is totally misconceived.

6. We, thus, do not find any merit in this appeal which is accordingly dismissed in limine.

ACTING CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J FEBRUARY 07, 2012 pk