Delhi High Court
Apfc Employees Provident Funds ... vs M/S Profolab on 29 November, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision :- 29.11.2019
+ W.P.(C) 9029/2019 & CM No.37280/2019 (delay)
APFC EMPLOYEES' PROVIDENT FUNDS ORGANISATION
..... Petitioner
Through: Ms. Rashmi Bansal, Adv.
versus
M/S PROFOLAB ..... Respondent
Through: Mr. Nikhil Patnaik, Adv.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The present writ petition filed by the APFC Employees'
Provident Funds Organisation assails the order dated 05.08.2011
passed by the Employees Provident Fund Appellate Tribunal. Under
the impugned order, the appeal preferred by the respondent-employer
was allowed, thereby setting aside the order under Section 7A of the
Employees' Provident Funds and Miscellaneous Provisions Act, 1952
('EPF Act' for short) directing the respondent to deposit the provident
fund dues of its ex-employee Ms. Asha Nangia. The petitioner also
assails the order dated 30.01.2017 whereby its belated review petition
was rejected by the Tribunal.
2. The case of the petitioner is that one Ms. Asha Nangia, who had
worked with the respondent organisation between 21.03.2000 to
31.03.2008 as a Front Office Manager, on 17.08.2008 made a
complaint to it alleging therein that even though she had worked in
WP (C) No.9029/2019 Page 1 of 5
the respondent organisation for almost 8 years, she was not made a
member of the Provident Fund Scheme and was therefore, deprived of
the benefits of the provident fund. Upon receipt of the said
complaint, the petitioner issued a show cause notice to the respondent
and after considering its reply passed an order under Section 7A of
the EPF Act on 10.07.2009 directing the respondent to deposit a sum
of Rs.1,35,970/- towards provident fund dues of Ms.Asha Nangia.
Upon a review petition being filed by respondent, the said amount
was reduced by the petitioner to Rs.1,17,089/-.
3. Aggrieved by the petitioner's aforesaid direction to deposit the
amount, the respondent preferred a statutory appeal before the
Employees' Provident Fund Tribunal. The primary contention of the
respondent before the Tribunal was that Ms. Nangia was an excluded
employee in terms of Section 2(f) of the Employees Provident Fund
Scheme, 1952 (hereinafter referred to as 'Scheme') as she was always
drawing salary higher than the prescribed limit and was, therefore,
rightly not enrolled as a member of Provident Fund Scheme. In
support of its aforesaid contention, the respondent relied on
Ms.Nangia's own complaint, wherein she had herself categorically
stated that her salary from 21.03.2000 was Rs.7,200/- whereafter it
kept on increasing from time to time. Based on this position
emerging from the record that Ms. Nangia was drawing a salary of
Rs.7200/- in the year 2000 which was higher than the exemption limit
prescribed in Section 2(f) of the Scheme, the Tribunal vide its order
dated 05.08.2011 allowed the respondent's appeal.
WP (C) No.9029/2019 Page 2 of 5
4. More than 5 years after the passing of the order dated
05.08.2011 allowing the respondent's appeal, the petitioner preferred
a review application before the Tribunal which came to be rejected
vide order dated 30.01.2017. Both the order dated 05.08.2011 and
30.01.2017 are assailed by way of the present petition which has been
filed two and a half years after the dismissal of the review petition and
almost eight years after the passing of original order. Though an
application seeking condonation of delay has been filed along with
the petition, the same contains only a bald statement that this delay
had been caused due to the shifting of the petitioner's office. Neither
any details, whatsoever, of the alleged shifting have been provided
nor any explanation is sought to be given for this inordinate delay.
5. On merits, Ms.Bansal, learned counsel for the petitioner,
submits that the impugned order is liable to be set aside as the
Tribunal has allowed the respondent's appeal without appreciating the
fact that the salary of Rs.7200/- being drawn by Ms. Nangia included
various allowances like House Rent Allowance, which allowances
had to be excluded while calculating her salary for determining
whether the same fell within the exemption limit under Section 2(f) of
the Scheme. She, thus, contends that once the various allowances are
excluded from Ms. Nangia's salary, she would no longer be treated as
an excluded employee. She, therefore, prays that the impugned orders
be set aside.
6. On the other hand, learned counsel for the respondent, who
appears on advance notice, while supporting the impugned orders,
submits that as per the own averments of Ms. Nangia in her
WP (C) No.9029/2019 Page 3 of 5
complaint, her salary was more than the exemption limit prescribed in
Section 2(f) of the Scheme and, therefore, she was rightly treated as
an excluded employee. He also relies on Form-7A signed by Ms.
Nangia on 21.03.2000 wherein she had categorically stated that she
was not entitled to become a member of the Employees Provident
Fund Scheme. He therefore, prays that the writ petition be dismissed.
7. I have considered the submissions of the learned counsel for the
parties and with their assistance perused the record. Undoubtedly,
there is no limitation prescribed for filing a writ petition but such an
inordinate delay and that too without any sufficient cause cannot be
condoned at the mere asking. In the present case, I find absolutely no
merit in the justification sought to be given by the petitioner for this
inordinate delay in approaching the Court and, therefore, the petition
would be liable to be dismissed on the ground of delay and latches
itself.
8. Even on merits, I see no reason to interfere with the impugned
order. Once Ms. Nangia had herself stated that her salary was
Rs.7200/- or more, which was admittedly higher than the prevalent
exemption limits both of Rs.5000/- applicable till June 2000 and of
Rs.6500/- thereafter as also the fact that she had filled form 7A stating
therein that she was not eligible to become a member of Scheme,
there is absolutely no reason to rely on the petitioner's bald statement
that her salary was in fact lesser than the exemption limit by
excluding certain allowances. Nothing has been pointed out by
learned counsel for the petitioner, as to why, the allowances which
formed an integral part of Ms. Nangia's salary should be excluded.
WP (C) No.9029/2019 Page 4 of 5
9. For the aforesaid reasons, I find no infirmity in the impugned
order, warranting interference under this Court's writ jurisdiction. The
petition being meritless is dismissed both on the grounds of delay as
also on merits.
REKHA PALLI, J.
NOVEMBER 29, 2019
SDP
