M/S. Gemini Distilleries Hyd Pvt. ... vs Theemployees Provident Fund ...
2022 Latest Caselaw 6698 Tel

       THE HONOURABLE SRI JUSTICE K.LAKSHMAN

                WRIT PETITION No.14631 OF 2010

ORDER:

Heard Mrs. Vedula Chitralekha, learned counsel for the

petitioner and Mr.T.Balaji, learned counsel for the respondents.

Perused the record.

2. This writ petition is filed to quash the order dated 07.09.2001

passed in ATA No.538(1) of 2001 by 2nd respondent.

3. Vide order dated 01.05.2001 under Section 7(A) of the

Employees Provident Fund and Miscellaneous Provisions Act, 1952

(for short, 'the Act'), 1st respondent had determined an amount of

Rs.54,99,420/- towards contributions for the period from June, 1997 to

July, 2000. Feeling aggrieved by the said order, the petitioner herein

had preferred an appeal vide ATA No.538(1) of 2001 before 2nd

respondent under Section 7(I) of the Act. Vide impugned order dated

26.05.2010, 2nd respondent had dismissed the aforesaid appeal filed by

the petitioner herein. Challenging the said order, the petitioner herein

had filed the present writ petition.

4. It is relevant to note that 1st respondent had passed an order

dated 01.05.2001 under Section 7(A) of the Act. It was an ex parte

order. Therefore, the petitioner herein had filed a petition on

10.07.2021 to set aside the order. 1st respondent did not consider the

said application and therefore, the petitioner herein had filed a writ

petition vide W.P.No.14150 of 2001. This Court vide order dated

24.07.2001 disposed of the said writ petition directing 1st respondent to

consider the said petition dated 10.07.2021 as expeditiously as possible

after affording an opportunity of being heard to the petitioner herein.

Till then, the prohibitory order dated 06.07.2001 shall not be enforced.

5. In compliance of the said order, 1st respondent had conducted

enquiry and passed orders afresh under Section 7(A) of the Act on

07.09.2021.

6. Perusal of the said order would reveal that the petitioner

herein had engaged its Advocate to represent it in the enquiry under

Section 7-A of the Act. Despite giving an opportunity, the petitioner

did not produce relevant record. In the said order, it is also specifically

mentioned that the petitioner-employer was only asked to produce his

own records including Cash Book Ledger, Balance Sheets etc., for the

period under enquiry. The petitioner is custodian of its record like

Ledger and Cash Book etc. It has also reasonably proved beyond doubt

that it is in possession of all material information with it. It has

furnished copies of weekly bills paid for labour wages for the period

from 4/99 to 3/2000 in respect of one contractor. Therefore, the

petitioner herein has not produced a copy of contract agreement for

extension of the contract from April, 1998 to April, 1999.

7. Considering the said facts, basing on the record available, 1st

respondent had passed the impugned order dated 07.09.2021

confirming the order dated 19.06.2001 directing the petitioner to remit

the dues immediately. Feeling aggrieved by the said order, the

petitioner herein had preferred the appeal vide ATA No.538(1)/2001.

8. Learned counsel for the petitioner would submit that the

Government had imposed prohibition in the State of Andhra Pradesh

from January, 1995 to April, 1997. The said prohibition was lifted in

April, 1997. Thereafter, the petitioner had engaged 180 employees

through Contractors. Despite the said fact, 1st respondent did not call

for the explanation from the contractors. Therefore, the aforesaid order

dated 07.09.2001 of 1st respondent is not on consideration of actual

facts and law. Despite raising a specific ground with regard to the

same, 2nd respondent-Tribunal did not consider the same.

9. Whereas, learned counsel appearing for the respondent No.1

would submit that both 1st and 2nd respondents have considered the

contentions of the parties and also definition of 'Employee' under

Section 2(f) of the Act. 1st respondent has also recorded the principle

laid down by the Apex court in two judgments. Despite granting an

opportunity, the petitioner herein did not produce record, whereas, the

Trade Union, representing the Employees of the petitioner Company

had filed the details of the employees engaged by the petitioner and pay

particulars etc. According to the same, all the employees are engaged

by the petitioner. The said facts were considered by both 1st and 2nd

respondents in the impugned order. Therefore, there is no error in the

said orders.

10. As discussed supra, 1st respondent has passed the order on

01.05.2001 under Section 7(A) of the Act. According to the petitioner,

it is an ex parte order. Therefore, the petitioner herein had filed an

application on 10.07.2001 to set aside the said order before 1st

respondent which was not considered. Therefore, the petitioner herein

had filed the aforesaid writ petition vide W.P.No.14150 of 2001 before

this Court and the same was disposed of directing 1st respondent to

consider the said application dated 10.07.2021 and passed an

appropriate orders afresh. Till then, the prohibitory order dated

06.07.2021 shall not be enforced.

11. Thereafter, 1st respondent in compliance of the aforesaid

order conducted enquiry and passed impugned order dated 07.09.2001.

Though the petitioner had engaged advocate, it did not produce the

details of the contractors and agreements entered with them etc. On the

other hand, the Trade Union has furnished the entire information. The

petitioner herein had submitted weekly bills paid for the labour charges

for the period from April, 1999 to March, 2000 in respect of said

contractors. Therefore, despite granting opportunity, the petitioner

herein did not furnish the details including the balance sheets etc.

Despite obtaining the order from this Court in W.P.No.14150 of 2001,

the petitioner herein did not furnish requisite information before 1st

respondent. Therefore, basing on the information available, 1st

respondent, vide impugned order dated 07.09.2001, confirmed the

order dated 19.06.2001 and directed the petitioner to remit the dues

immediately.

12. In the impugned order, 2nd respondent has specifically

considered the contentions of both the parties and also the definition of

'Employees' under Section 2(f) of the Act. 2nd respondent has also

considered the letter submitted by the Trade Union along with the list

showing that the petitioner had engaged 260 employees. Thereafter,

they have withdrawn letter dated 03.09.2001. Therefore, according to

the petitioner, the information furnished by the Trade Union cannot be

considered.

13. As stated above, the aforesaid enquiry was under Section

7(A) of the Act. The said enquiry can be ordered suo-motu or on a

complaint either by the employee or Trade Union. Therefore,

withdrawal of letter/information furnished by the Trade Union is

nothing to do with the aforesaid enquiry under Section 7(A) of the Act.

2nd respondent had also considered the principle laid down by the Apex

Court in Hussain Bhai Vs. Altaf Factory Union1 and also in ESIC

Vs. M/s Harrison Malayam Pvt.Ltd.2 Considering the said facts and

also material available on record, 2nd respondent had dismissed the

appeal filed by the petitioner herein. It is concurrent finding. According

to this Court, there is no error in it.

14. The petitioner company has also relied on the principle laid

down by the Apex Court in Food Corporation of India Vs. Provident

Fund Commissioner3 wherein the Apex Court held that the

commissioner who is the statutory authority has exercised powers

1978 SC 1410

Civil Appeal No.1130 of 1990

1990(1) SCC 68

vested in him to collect the relevant evidence before determining the

amount payable under the said Act. It was further held that as per the

provisions of that Act, more particularly, Section 7(A) of the Act, the

Commissioner is authorised to enforce attendance in person and also to

examine any person on oath. He has the power requiring the discovery

and production of documents. This power was given to the

Commissioner to decide not abstract questions of law, but only to

determine actual concrete differences in payment of contribution and

other dues by identifying the workmen. The Commissioner should

exercise all his powers to collect all evidence and collate all material

before coming to proper conclusion. That is the legal duty of the

Commissioner. It would be failure to exercise the jurisdiction

particularly when a party to the proceedings requests for summoning

evidence from a particular person. Whereas, in the present case, despite

granting opportunity and despite the aforesaid order in W.P.No.14150

of 2001, the petitioner herein failed to produce any evidence. He did

not even requested 1st respondent/authority under Section 7(A) of the

Act to call for certain information from the Trade Union or Employees.

Therefore, the petitioner cannot take shelter under the aforesaid

judgment.

15. The petitioner herein has also relied upon another judgment

of the Apex court in Bharat Heavy Electricals Ltd. Vs. Employees'

State Insurance Corporation4 wherein it was held that the ESI

Corporation has the requisite jurisdiction to implead the third party or

summon them before it to produce all relevant documents. Whereas, in

the present case, there is no such request made by the petitioner herein.

The 1st respondent has passed the aforesaid order dated 07.09.2001

basing on the record available and also on consideration of the

provisions of the Act. The same was confirmed by 2nd respondent vide

impugned order. Therefore, the aforesaid facts are different to the facts

of the present case. Thus, the petitioner herein failed to make out any

case to interfere with the said order.

16. Therefore, viewed from any angle, the writ petition is liable

to be dismissed.

17. In the result, the writ petition is dismissed. Miscellaneous

Petitions, if any, pending, shall also stand closed.

_________________ K. LAKSHMAN, J Date:12.12.2022 vvr

(2008) 3 SCC 247