Delhi High Court
T.R.M.Public School vs Asstt. Provident Fund ... on 6 January, 2015
Author: V.P.Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.9268 /2014
Date of decision: 06th January, 2015
T.R.M.PUBLIC SCHOOL ..... Petitioner
Through: Mr. S.K.Gupta, Adv.
Versus
ASSTT. PROVIDENT FUND COMMISSIONER EMPLOYEES
PROVIDENT FUND ORGANIZATION ..... Respondent
Through: Mr.Arvind Kumar Verma, Adv.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
1. By way of this petition under Articles 226/227 of the
Constitution of India, the petitioner seeks to challenge order dated
13.10.2014 passed by the learned Presiding Officer, Employees
Provident Fund Appellate Tribunal, New Delhi in ATA No.1014(14)
2014.
2. Vide the impugned order, the Appellate Tribunal, while staying
the operation of the said order, directed to deposit 7Q amount along
with an additional amount of Rs.10 lakhs with the respondent.
3. Notice.
4. Mr. Arvind Kumar Verma, Advocate accepts notice on behalf of
respondent and states that he does not wish to file any reply.
5. With the consent of learned counsel for both the parties, the
matter is taken up for final hearing.
6. The factual matrix of the present case is that the petitioner is
covered under the provisions of Employees Provident Fund and
Miscellaneous Provisions Act, 1952 (for short 'the Act') and the
Employees Provident Fund Scheme, 1952. The petitioner was assessed
under Sections 14B and 7Q of the Act vide order dated 10.09.2014
passed by the Assistant Provident Fund Commissioner.
7. Aggrieved by the said order, the petitioner filed an appeal
bearing ATA No.1014(14)2014 before the Employees Provident Fund
Appellate Tribunal.
8. Vide impugned order dated 13.10.2014, while admitting the
appeal and stay of operation of impugned order, the petitioner was
directed to deposit 7Q amount along with an additional amount of
Rs.10 lakhs with the respondent.
9. Learned counsel for the petitioner urges that in case of
assessment under Section 14B of the Act, pre-deposit is not required.
He has placed reliance on the judgment of this Court in 'M/s. Old
Village Industries Ltd. vs. The Assistant Provident Fund
Commissioner, Employees' Provident Fund Organization & Anr.',
2005 LLR 552 and order dated 24.02.2010 in W.P.(C) 1148/2010 titled
as 'Lakhani India Ltd. vs. Employees Provident Fund Appellate
Tribunal'
10. I have carefully considered the submissions made by learned
counsel for the petitioner.
11. In M/s. Old Village Industries Ltd. (supra), this Court held as
under:
"The power to waive or reduce the amount to be
deposited is relatively to the amount
determined by the Officer under Section 7A of
the Act. In other words the pre-requisite of
deposit of 75% of the demanded amount
applicable to an order passed under Section 7A
and not to other provisions. The Legislature in
its own wisdom has restricted the application of
the provisions of Section 7(1) to the order
passed under Section 7A. Such provisions are to
be construed strictly and cannot be given a
wider meaning so as to create a liability which is
intended to be correct to the entertainment of
an appeal. The liability to deposit arises in the
situation strictly contemplated under the
provisions of this section. There is nothing in
the section so as to extend its application to an
order passed under Section 14B of the Act. An
employer has a right to prefer an appeal against
an order under Section 14B, under Section 7(1)
of the Act but the pre-condition of deposit for
entertainment of such an appeal is not covered
under Section 7-O of the Act. Thus, I have no
hesitation in rejecting the contention of the
respondents that it would be mandatory for the
employer to deposit 75% of such amount before
appeal can be entertained or even that there
cannot be stay of recovery of the said amount by
the Appellate Authority. The argument raised
on behalf of the respondents would be
untenable even for another reason that damage
is the consequence of the demand raised under
Section 7A of the Act. The provisions of Section
14B of the Act attracted only if there is default
on the part of the employer. It being a
consequential liability essentially must fall in a
category of not the principal liability to attract
stringent provisions of pre-deposit to the
hearing of the appeal. Such provisions being
related to revenue would be construed strictly
whether to the advantage or disadvantage of the
person upon whom the liability is sought to be
fastened. Once the provisions of Section 7-O
does not include an appeal against an order
under Section 14B then it would be in no way
permissible to include such an order by
implication or otherwise."
12. On a bare perusal of Section 7(1) of the Act, it is clear that an
employer has a right to prefer an appeal against an order under Section
14B of the Act. The factual position is considered in the background
of legal principle enunciated in the aforesaid judgment and in my view
the petitioner is not liable to pay an additional amount of Rs.10 lakhs.
13. In view of the aforesaid discussion, the impugned order dated
13.10.2014 is modified to the extent that Employees' Provident Fund
Appellate Tribunal shall hear the appeal without insisting on deposit of
additional amount of Rs.10 lakhs and decide the case in accordance
with law.
14. The petition stands disposed of accordingly.
CM 21006/2014
The application is dismissed as infructuous.
(VED PRAKASH VAISH)
JUDGE
JANUARY 06, 2015
'sn'
