Madras High Court
M/S.Hatsun Agro Product Ltd vs Assistant Pf Commissioner on 15 June, 2021
W.P.No.9171 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.9171 of 2021 and
WMP.No.9709 of 2021
M/s.Hatsun Agro Product Ltd.,
Rep. by its Authorised Signatory-P.Sivasakthivel
SF.No.150/1, Door No.7/37,
Attur Main Road,
Karumapuram Village,
Salem-636 106. ... Petitioner
-vs-
Assistant PF Commissioner,
Employees ' Provident Fund Organisation,
(Ministry of Labour, Govt. of India)
Regional Office,
S.J.Plaza, Swarnapuri,
Salem-636 004. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for
the issuance of a Writ of Mandamus, directing the respondent to issue summons to the
transporters and produce the Enforcement Officers K.Elangovan and J.J.Mydhili Dhevi
for cross examination on behalf of the petitioner.
For Petitioner : Mr.S.Ravindran, Senior Counsel
for Mr.S.Bazeer Ahamed
For Respondent : Mr.R.Thirunavukkarasu
*****
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W.P.No.9171 of 2021
ORDER
The petitioner has come forward with the present writ petition for a direction to
the respondent to issue summons to the Transporters and produce the Enforcement
Officers, namely, K.Elangovan and J.J.Mydhili Dhevi for cross examination on behalf
of the petitioner.
2. The case of the Petitioner is that the Petitioner is a Milk Plant, in which Milk is
being processed and transported to various places. The Enforcement Officer of the
Respondent gave an Inspection Report dated 11.03.2019, demanding a contribution of
Rs.1,01,26,089/- for the period April 2016 to January 2019 in respect of transportation
charges. The Petitioner found that the calculation for arriving at the said contribution in
terms of the report of the Enforcement officer was completely erroneous and therefore,
the Petitioner, by letter dated 02.05.2019 requested the Respondent to produce the
Enforcement Officer for cross examination by enclosing the judgment of the Division
Bench of this Court in the case of M/s.Srinivasan Associates Private Limited -vs- The
Regional Provident Fund Commissioner-II, reported in 2019 (3)LLN 516. The
Respondent, on the basis of the report, issued notice on 20.05.2019 and conducted an
enquiry under Section 7A of EPF&MP Act, demanding contribution in respect of
amounts paid to transporters. During enquiry held by the Respondent, the petitioner
filed a questionnaire containing 16 questions to be answered by the Inspector. By letter
dated 25.02.2020, the petitioner requested the Respondent to carry out the exercise of
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W.P.No.9171 of 2021
identification of employees on whose behalf the contribution is claimed by referring to
the judgment of the Hon'ble Supreme Court in the case of Himachal Pradesh State
Forest Corporation Versus Regional Provident Fund Commissioner reported in 2008
(5) SCC 756 and judgment of the Madras High Court in the case of N.Krishnan Versus
Employees Provident Fund Appellate Tribunal reported in 2019 LLR 461. Thereafter,
the Enforcement Officer addressed a letter dated 16.03.2021 to the Regional Provident
Fund Commissioner, stating that her calculation of dues cannot be questioned, when the
matter is sub-judice and none of the judgments referred to by the petitioner would be
applicable to the present enquiry. The Enforcement Officer also sought permission of
the Regional Provident Fund Commissioner to examine the Security Officer/Chief
Financial Officer in-charge of the Petitioner-Establishment.
3. The grievance of the Petitioner is that the respondent is not allowing the
Petitioner to cross examine the Enforcement Officers and also, refused to issue
summons to the Transporters. It is further grievance of the Petitioner that there was no
exercise of identification of employees before an order is passed under Section 7A of
the EPF & MP Act. Aggrieved by the overall attitude of the Respondent, the petitioner
sought for a suitable direction to the Respondent, by filing this writ petition.
4. Mr.S.Ravindran, learned Senior Counsel appearing for the petitioner submitted
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W.P.No.9171 of 2021
that no permission was granted to the Petitioner to cross examine the Enforcement
Officer He further submitted that the statement made by the Regional Provident Fund
Commissioner as found in the Daily Order Sheet dated 02.01.2020 to the effect that the
act of raising query to the Inquiry Officer, who is considered to be a Judicial Officer as
per the provisions of CPC, is nothing, but demeaning the Court proceedings, is only an
observation. It is further stated that the statement made by the Enforcement Officer can
be questioned and the said statement made by him in the written form has to be tested
by way of cross examination and therefore, it is absolutely necessary that Enforcement
Officer will have to be cross examined. He further pointed out that the Petitioner had
given a list of 16 questions to be answered by the Enforcement Officer and Enforcement
Officer will have to appear and answer those questions and further questions can also be
posed by the Management for the purpose of cross examination.
5. It is represented by Mr.R.Thirunavukkarasu, learned counsel for the respondent
that the Regional Provident Fund Commissioner has to examine the Security Officer
and Chief Financial Officer In-charge of the petitioner establishment. He further
submitted that the Regional Provident Fund Commissioner has got wide powers as per
the provisions of Civil Procedure Code, 1908 and the direction sought for by the
Petitioner-Establishment to the Inquiry Officer to identify the employees is an
infringement of the Proceedings of the inquiry
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W.P.No.9171 of 2021
6. Heard both sides. Perused the materials available on record.
7. The issue involved in this Writ Petition has been covered by the judgment of
this Court in the case of M/s.Srinivasan Associates Private Limited Vs., The Regional
Provident Fund Commissioner-II. The relevant portion of the said Judgment is
extracted hereunder:
"8.Further, we do not agree with the said stand
because, in the counter affidavit, the respondent has
taken a stand that there is no useful purpose would be
served by providing an opportunity to cross examine
the Department Witness. Considering the fact that
principles of natural justice have to be strictly adhered
to, this Court is of the view that there should be a
positive direction to the respondent to permit the
appellant to cross examine the Department witness,
who had conducted the inspection and drawn the
reports dated 20.09.2018 and 25.01.2018."
8. In the present case, it is seen that the Employees Provident Fund Organisation
(EPFO) had not initially permitted the Petitioner-Establishment to cross examine the
Enforcement Officer and thought as many as 16 questions were posed to the
Enforcement Officer by means of communication dated 04.02.2020, the Respondent
refused to answer those questions. This Court is of the view that mere reply to the
questions posed by the Petitioner will not service any purpose, as the details of the
employees have got to be identified by the person, who is going to depose on behalf of
the E.P.F.O and therefore, the Enforcement Officer needs to be cross examined.
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W.P.No.9171 of 2021
9. The Respondent sought for examination of the Security Officer/Chief Financial
Officer Incharge of the petitioner establishment. Insofar as the said contention of the
respondent is concerned, it is needless to mention that the Department is empowered to
examine the Security Officer/Chief Financial Officer Incharge of the petitioner
establishment by issuing necessary summons and whatever submission made will have
to be tested by way of cross examination.
10. In view of what is stated hereinabove, this Writ Petition is ordered, with a
direction to the respondent to issue summons to the Transporters and produce the
Enforcement Officers K.Elangovan and J.J.Mydhili Dhevi for cross examination on
behalf of the Petitioner. It is needless to mention that the Regional Provident Fund
Commissioner is empowered to summon Transporters, Security Officers, Chief
Financial Officer, who is Incharge of the Petitioner-Establishment. No costs.
Consequently, connected Miscellaneous Petition is closed.
15.06.2021
Index: Yes / No
Speaking order /Non speaking order
arr/ar
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W.P.No.9171 of 2021
To
Assistant PF Commissioner,
Employees ' Provident Fund Organisation,
(Ministry of Labour, Govt. of India)
Regional Office,
S.J.Plaza, Swarnapuri,
Salem-636 004.
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W.P.No.9171 of 2021
S.VAIDYANATHAN, J
arr
W.P.No.9171 of 2021
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15.06.2021
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