Delhi High Court
M/S. Vibhor Marketing (P) Ltd. vs Assistant Provident Fund ... on 9 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 09.04.2018
+ WP(C) 3431/2018
M/S. VIBHOR MARKETING (P) LTD. ..... Petitioner
Through: Ms.Rashmi Chopra and Ms.Asiya,
Advocates.
versus
ASSISTANT PROVIDENT FUND COMMISSIONER...Respondent
Through: Mr.Rajesh Manchanda & Mr.Rajat
Manchanda, Advocates.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (Oral)
CM APPL. 13522/2018 (Exemption)
Exemptions granted subject to all just exceptions.
The application stands disposed of.
W.P.(C) 3431/2018 & CM APPL. 13521/2018
1. The petitioner seeks quashing of the order dated 14.03.2018
passed by the learned Presiding Officer, Central Government
Industrial Tribunal-cum- Labour Court No.1, Dwarka Courts
Complex, New Delhi (in short „the Tribunal‟) in ATA No.O-
1/07/2017 by which the pre-deposit amount was reduced to 50% from
75% of the assessed amount.
2. The respondent, after affording an opportunity of hearing to the
petitioner, by an order dated 29.04.2016, had assessed the provident
fund amount payable by the petitioner for the period from April 2012
to March 2015 for Rs.68,78,915/-. The petitioner had paid a sum of
Rs.11,19,135/- to the respondent and still a sum of Rs.57,59,780/- has
been due and payable by the petitioner.
3. The petitioner preferred an appeal before the Tribunal under
Section 7-I of the Employees Provident Fund & Miscellaneous
Provisions Act, 1952 (in short „the EPF Act‟). Along with the appeal
the petitioner moved an application for waiver of the pre-deposit of
75% of the assessed amount under Section 7-O of the EPF Act. After
hearing both the parties, the Tribunal vide impugned order dated
14.03.2018 has directed the petitioner to deposit 50% of the amount
due as determined by the respondent within a period of 4 weeks.
4. On an advance copy of the writ petition having been served
Mr.Rajesh Manchanda, Advocate appears for the respondent.
5. Learned counsel for the petitioner submits that the respondent
has not followed the principles of natural justice by rejecting its
request for summoning the record of the principal contractor for
verification. He submits that the respondent department has admitted
that the principal contractor/employer could not provide the details for
the year 2012-2013 and 2013-2014. She urges that the provident fund
dues were assessed by the EPFO on the basis of the balance sheet.
She submits that at present petitioner establishment is virtually a
closed unit. She submits that while passing the impugned order dated
14.03.2018, the Tribunal has not appreciated the submissions and
passed the impugned order by just reducing the pre-deposit amount
from 75% to 50% only. She emphasized that the petitioner company
is not in a financial position to make the deposit as it has been facing
financial constraint. Lastly, she submits that the amount of pre-
deposit may be reduced to 25% instead of 50% of the determined
amount. In this regard, she takes the support of the order of a Single
Bench of this Court in Delhi Sikh Gurudwara Management
Committee through S.Paramjit Singh Sarna (President) vs.
Central Board of Trustees through Assistant Provident Fund
Commissioner and E.P.F. Appellate Tribunal in WP(C)
No.9177/2007 decided on 17.12.2007 wherein the pre-deposit amount
of 40% as directed by the tribunal was reduced to 25% of the
determined amount.
6. Per contra, Mr.Manchanda, learned counsel for the respondent
submits that the petitioner has failed to pin point any illegality in the
impugned order passed by the Tribunal. He submits that the petitioner
has filed an application under Section 7-O of the EPF Act along with
appeal before the Tribunal wherein he had taken only the ground of
financial constraint for waiver of the pre-deposit but did not file any
document in support thereof.
7. I have heard learned counsel for the parties.
8. It would be profitable to refer to Section 7-O of the EPF Act
which reads as under:-
"7-O Deposit of amount due, on filing appeal.-
No appeal by the employer shall be entertained by a
Tribunal unless he has deposited with it seventy-
five per cent of the amount due from him as
determined by an officer referred to in section 7A:
Provided that the Tribunal may, for reasons to be
recorded in writing, waive or reduce the amount to
be deposited under this Section."
9. A perusal of the aforesaid provision would make it clear that the
Tribunal shall not entertain an appeal unless the appellant makes a
pre-deposit of 75% of the amount due and determined as referred to
under Section 7A of the Act. However, the proviso to Section 7-O of
the Act which is an exception empowers the Tribunal to waive off or
reduce the amount to be deposited for the reasons recorded in writing.
10. After hearing the learned counsel for the parties and applying its
mind by referring the facts of the case at length, the Tribunal has
exercised its jurisdiction by granting substantial relief to the petitioner
and reduced the pre-deposit amount from 75% to 25% of the
determined amount. Once the discretion has been exercised by the
Tribunal for the reasons given therein, the petitioner has not made out
a prima facie case for complete waiver as this Court in the writ
jurisdiction is not to sit as a court of appeal and substitute its own view
or discretion. If this Court starts interfering in the interim orders
passed by the Tribunal under Section 7-O of the EPF Act by reducing
the pre-deposit amount, it would become difficult for the Tribunal to
function as these Tribunals have been constituted for expeditious
disposal of the appeals. Unnecessary interference with the interim
orders passed by the Tribunal while considering pre-deposit condition
u/s 7-O shall give rise to challenge every order in the writ jurisdiction.
Moreover, this is only an interim order and in case the petitioner
succeeds in the appeal, the refund will naturally follow. Under the
writ jurisdiction this Court cannot give the findings on the merits of
the case leaving nothing for the Tribunal to decide. The question on
merits are to be considered by the Tribunal while hearing the matter
finally. The points raised challenging the impugned order before the
Tribunal in Appeal are not to be examined by this Court when the
petitioner has impugned the interim order passed by the Tribunal
regarding the pre-deposit. The points on merits are to be considered
by the Tribunal at the time of disposal of appeal. For these reasons, I
do not find any merit in the writ petition, the same is dismissed
accordingly along with CM APPL. 13521/2018.
11. Since the Tribunal by impugned order dated 14.03.2018 has
granted four weeks‟ time to deposit 50% of the amount due within
four weeks, which expires on or about 11.04.2018. Therefore, in the
interest of justice, the petitioner is granted further four weeks‟ time to
deposit the amount in terms of the impugned order.
(VINOD GOEL)
JUDGE
APRIL 09, 2018
dkb
