The Assistant Provident Fund ... vs M/S.Spi Technologies India ...
2023 Latest Caselaw 941 Mad

                                                                                     W.A.No.2140 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 24.01.2023

                                                       CORAM:

                         THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
                                           AND
                    THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD

                                      W.A.No.2140/2021 and CMP.No.13539/2021

            The Assistant Provident Fund Commissioner,
            Employees' Provident Fund Organization,
            Regional Office: Sri Venni Commercial Complex,
            No.101, 100 Feet Road, Cholan Nagar,
            Olandaikeerapalayam,
            Puducherry.                                                     .. Appellant

                                                              -vs-
            M/s.SPI Technologies India Private Limited
            rep. by its Authorized Signatory S.Vijayaraghavan,
            ''Manatee Towers'', R.S.No.258/4,
            East Coast Road, Lawspet P.O.,
            Puducherry-605 008.                                             ... Respondent

            Prayer: Writ Appeal filed under Clause 15 of Letter Patent to set aside the order dated

            01.10.2020 passed in W.P.No.33759/2019 and allow the Writ Appeal.


                                      For Appellant      : Mrs.V.J.Latha, Standing Counsel

                                      For Respondent     : Mr.S.Ravindran, Senior Counsel
                                                           for Mr.S.Bazeer Ahamed




            1/10

https://www.mhc.tn.gov.in/judis
                                                                                              W.A.No.2140 of 2021

                                                            JUDGMENT

The present Writ Appeal has been preferred against the order dated 01.10.2020

passed in W.P.No.33759/2019 whereby the order of the Employees' Provident Fund

Appellate Tribunal, Chennai in EPFA.No.198/2017 dated 19.06.2019 was set aside

thereby confirming the proceedings of the EPF Authority and remanding the matter to

the Tribunal on the following terms:

''(i) The impugned order dated 19.06.2019 in EPFA.No.198 of 2017 passed by the Appellate Authority is set aside and the matter is remitted to the Appellate Authority for the limited purpose to ascertain the exact amount payable towards contribution of Provident Fund for each of the employees of the petitioner during the relevant period, irrespective of whether they continue or have left service;

(ii) The appeal in EPFA No.198 of 2017 shall stand re-opened and shall be listed for hearing both the Appellate Authority on 03.12.2020, and the petitioner and the respondent shall appear on that date and continue to attend the subsequent hearings to which it is adjourned till its eventual conclusion;

(iii) It shall be the obligation of the petitioner to submit revised Forms 3A and 6A showing the actual amount of contribution payable in respect of each employee (with working sheet showing details) along with available details of the employees who have left its service.

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(iv) The Appellate Authority shall afford full opportunity of hearing to all parties concerned following the prescribed procedure in consonance with the principles of natural justice and shall pass reasoned orders dealing with each of the contentions raised by the parties in this regard on merits and in accordance with law;

(v) After final order is passed in EPFA No.198 of 2017 by the Appellate Authority, the Respondent shall take necessary measures to inform the concerned employees of the petitioner by public notice and/or other appropriate means to collect their entitled dues in the prescribed manner;

(vi) The amount invested in the Fixed Deposit Account No.6914822657 in the name of the Registrar General of this Court pursuant to the order dated 30.07.2020 passed by this Court, with accrued interest shall be forthwith transferred to the name of the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai and the original receipt shall be handed over to the Central Government Industrial Tribunal-cum-Labour Court, Chennai under written acknowledgment;

(vii) The amounts that have been remitted by the petitioner pursuant to the interims orders of the Appellate Authority and this Court shall continue to remain invested in the interest fetching deposits till the matter is finally decided by the Appellate Authority who shall at that time also pass necessary orders for the extent of amount that the respondent would be entitled to appropriate from those amounts deposited and for the refund of remaining amount to the petitioner, if any; and

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(viii) It is also clarified here that the dates on which the amounts had been deposited by the petitioner shall be treated as if payment has been made to the respondent towards the contribution of provident fund dues so that there shall not be any further liability on the petitioner to bear interest for those deposited amounts after those respective dates on which they had been made.''

2. The main contention of the learned Standing Counsel appearing for the

appellant-Employees' Provident Fund Organization is that based on the documents

produced by the respondent-Management, the Original Authority came to the

conclusion and directed remittance of the EPF Contributions. Even though more than

5000 employees were on rolls, during the claim period from March 2010 to December,

2012, 4300 above have left the services after accepting the final dues and as on date,

only 700 and odd employees are on rolls. Some of them were drawing less than

Rs.6500/- and some of them are drawing above Rs.6500/-. As per the coverage of

Employees' Provident Funds Scheme, 1952, those who are drawing monthly wages

exceeding Rs.6500/- would be covered even if they are originally covered under the

EPF Act and the claim for contribution is restricted to Rs.6500/- for the purpose of

calculating and contributing the employees' provident fund dues in terms of paragraph

26 and 26-A of the Scheme. When the crucial aspect with regard to the determination

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of the amount towards EPF contribution by the employer has already been taken into

account by the Original Authority and the said authority has determined the amount

payable by the employer towards employees' and the employees' contributions, there is

no need for remand, more so, the employer has accepted the contributions payable by

them.

3. The further contention of the learned Standing Counsel for the appellant is

that the issue with regard to the contribution is restricted to the period from March,

2010 to December, 2012 in the Writ Appeal. The Management has stated that they have

submitted periodical returns in Forms-3A and 6A in terms of paragraph 35 and 36 of the

EPF Schemes and on inspection by the Enforcement Officer, it was found that certain

allowances alleged to have been payable to the employees have not been calculated

which resulted in lesser contribution by the employer and that an enquiry was

conducted in terms of Section 7-A of the Employees' Provident Funds and

Miscellaneous Provisions Act, 1952 and the amount was determined to be payable by

the employer under the said Act. The appeal preferred under Section 7-I of the Act

before the Central Government Industrial-cum-Labour Court, was dismissed on

19.06.2019. The issues revolve around are what is the amount of contribution actually

payable by the employer towards the employer contribution and the employees'

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contribution and whether the allowance as contended by the Employees' Provident

Fund Organization will have to be taken into account for the purpose of payment of

contribution. Even though the number of workmen to whom the amounts have been

payable has been reflected, the actual amount payable to each of the employees have not

been dealt with.

4. According to the learned Senior Counsel for the respondent, the relevant

documents have been produced before the authorities concerned and that there was no

determination with regard to the contribution payable in respect of each employee and

the authority has determined the issue. He would further contend that even though the

respondent has not preferred an appeal against the said order in the writ petition that the

remand ought to have been made before the original authority, the Tribunal will have no

power to determine the amount payable by the employer towards employer and

employees' contributions and that the mechanism was available only with the Original

Authority.

5. In reply, Mrs.V.J.Latha, learned Standing Counsel appearing for the

Employees' Provident Fund Organization would submit that when the amount payable

towards Employees' Provident Fund contribution has already been arrived at, there is no

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need for any remand much less to the Tribunal or the Original Authority.

6. Heard both sides. We have also perused the materials available on record

carefully.

7. At the outset, the factum that the amount payable towards EPF contribution

per employee has got to be determined by the EPF authority. On such determination,

the employer will have to contribute the said amount, unless there is a dispute which

can be adjudicated before the appellate Tribunal. Further, as rightly pointed out by the

learned Senior Counsel for the respondent, even though the respondent management is

not preferring any appeal against the order passed in the Writ Petition, the Tribunal did

not have any assistance or infrastructure to determine the amount payable to each of the

employees' numbering over 700. The number may be much more or less and it is for the

Original Authority to decide with regard to various contributions and allowances that

may be included for the purpose of determining the EPF contribution. In view of the

above, we find that there is no error in the order of the learned Single Judge in

remanding the matter. However, we are inclined to modify the order of remand to an

extent that the matter shall be remanded to the Original Authority who shall determine

the amount after affording opportunity to the parties concerned. Therefore, it is open to

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the parties to put forth the available additional materials, if any, before the authorities

concerned for the purpose of determination of the amount. The authority shall

determine the issue as per the order of remand by the learned Single Judge, within a

period of four months from the date of receipt of a copy of this Order. The Original

Authority, not the Appellate Authority, is expected to take up necessary measures to

inform the employer concerned who is expected to participate in the enquiry and in case

of absence by the employer, if any reason whatsoever, the same may be recorded by

the Original Authority and after hearing the employer, the amount payable shall be

determined and such exercise shall be carried out on day-to-day basis without

adjourning the matter beyond 7 working days at any point of time.

8. At this stage, it is represented that pursuant to the interim orders of the

Tribunal and subsequent interim orders of this Court, the amount towards EPF

contribution has been remitted before the Tribunal which is lying in deposit. The

Tribunal is expected to remit the amount to the Employees Provident Fund Organisation

within a period of 15 days from the date of receipt of a copy of this Order. The Original

Authority shall take into account the amount already lying in deposit while arriving at

the amount payable by the employer towards EPF contribution.

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9. With the above observation and direction, the Writ Appeal is disposed of.

No costs. Consequently, connected Miscellaneous Petition is closed.

[S.V.N., J.] [J.S.N.P., J.] 24.01.2023 Index: Yes / No Internet: Yes / No tsi

https://www.mhc.tn.gov.in/judis W.A.No.2140 of 2021

S. VAIDYANATHAN, J.

and J.SATHYA NARAYANA PRASAD, J.

tsi

W.A.No.2140 of 2021

24.01.2023

https://www.mhc.tn.gov.in/judis