Delhi High Court
M/S. Mohit Industries Akola vs The Assistant Provident Fund ... on 19 February, 2018
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 19.02.2018
+ W.P. (C) 1929/2016
M/S MOHIT INDUSTRIES AKOLA ..... Petitioner
Through: Ms. Nandita Rao, Advocate.
versus
THE ASSISTANT PROVIDENT FUND COMMISSIONER
AKOLA ..... Respondent
Through: Ms. Inderjeet Sidhu along with
Mr.Suchitra Chawla, Advocate.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)
1. The challenge in this writ petition is the impugned order dated
14.12.2015 passed by the Employee Provident Fund Tribunal,
New Delhi (in brief 'Appellate Tribunal') in ATA No.37
(9)/2012 by which the appeal of the petitioner under Section 7-I
of the Employees' Provident Funds and Miscellaneous
Provisions Act, 1952 (in short 'EPF Act') was dismissed.
2. The brief facts leading to the filing of the present writ petition
are that the Inspectors/Enforcement Officers of the respondent
organisation visited the establishment of the appellant on
10.11.2011 and found 23 employees working there. They
prepared a list of employees which was signed by the
Enforcement Officers and on behalf of petitioner establishment.
The Enforcement Officers of the respondent recommended the
coverage of the petitioner establishment under EPF Act. A
coverage notice dated 30.11.2011 under Section 1 (3) (a) of the
EPF Act was issued by the respondent to the petitioner
establishment.
3. A representation dated 30.12.2011 was submitted by the
petitioner with the respondent which initiated enquiry under
Section 7-A of the EPF Act in order to resolve the dispute. The
petitioner without waiting to the outcome of the said
representation approached the Appellate Tribunal. After
perusing the file of the respondent, the Tribunal observed that
Enforcement Officer found 23 employees working with the
petitioner establishment and the list was signed by Enforcement
Officers and the petitioner establishment and accordingly
dismissed the appeal.
4. Learned counsel for the petitioner submits that in fact the
Inspectors/Enforcement Officers of the respondent visited their
establishment during lunch hours when the workers of the
neighbouring factory were having lunch with the workmen of
the petitioner establishment and the list prepared by the
Enforcement Officers of the respondent was counter signed on
behalf of the petitioner establishment with an endorsement.
5. Copy of the list of employees which is the part of the Report of
the Enforcement Officers is on the record. It reflects an
endorsement under the handwriting of the person, who signed
on behalf of the petitioner establishment, that the employees at
Sr. No.1 to 6 were of the neighbouring factory. It further bears
endorsement on behalf of the petitioner that employees
mentioned at Sr. No.13 and 14 are also not their employees and
they had come to meet their labour acquaintances.
6. Learned counsel for the petitioner submits that since less than
20 persons were employed with the petitioner establishment, the
coverage notice issued to them is illegal and not sustainable. He
further submits that the Appellate Tribunal has also failed to
take note of this endorsement while perusing the record before
dismissal of their appeal.
7. The copy of the list which is part of the Enquiry Report of the
Enforcement Officers is not disputed by Ms. Sidhu, learned
counsel for the respondent. She submits that the petitioner
establishment submitted their representation dated 30.12.2011
whereupon the respondent had initiated an enquiry under
Section 7-A of EPF Act so as to resolve the disputes. She
submits that instead of participating in the enquiry, the
petitioner approached the Appellate Tribunal against the
coverage notice dated 30.11.2011. She submits that the
petitioner establishment has an alternative effective remedy
available to get the disputes resolved in the enquiry which has
been initiated under Section 7-A and may be directed to
approach the respondent with the requisite evidence to support
its claim.
8. I have heard learned counsel for the parties.
9. To meet the rival contention of learned counsel for the parties, it
is necessary to refer to Sub Section 1(a) of 7-A of the EPF Act,
which reads as under:-
"7A. Determination of moneys due from
employers.-
(1) The Central Provident Fund Commissioner, any
Additional Central Provident Fund Commissioner,
any Deputy Provident Fund Commissioner, any
Regional Provident Fund Commissioner, or any
Assistant Provident Fund Commissioner may, by
order,-
(a) in a case where a dispute arises regarding the
applicability of this Act to an establishment,
decide such dispute;"
10. It is evident from a bare reading of Sub Section (1)(a) of
Section 7-A of EPF Act that the CPFC/DFFC/RPFC/APFC may
decide the dispute regarding applicability of the Act to an
establishment.
11. In view of the submissions of the learned counsel for the
respondent that an enquiry under Section 7-A has been initiated
by the respondent on the representation dated 30.12.2011 filed
by the petitioner establishment, the petitioner, if so desire, may
approach the respondent with necessary evidence in support of
its case about non-applicability of provisions of EPF Act.
12. In the circumstances, the petition is disposed of with the
directions that the petitioner establishment shall join the enquiry
which is being initiated by the respondent under Section 7-A of
the EPF Act on its representation dated 30.12.2011. It is further
directed that in case the petitioner establishment approaches the
respondent within the reasonable time given by the respondent,
the impugned order dated 14.12.2015 of the Appellate Tribunal
shall not come in the way.
(VINOD GOEL)
JUDGE
FEBRUARY 19, 2018
"sandeep"
