Telangana High Court

Central Board Of Trustees vs E.P.F.A.T,Registrar,Anot on 26 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

   IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                   W.P.No.11475 OF 2015



Between:
Central Board of Trustees,
Employees Provident Fund
                                                ... Petitioner
                             And

Employees Provident Fund Appellate Tribunal
& another
                                              ... Respondents


           JUDGMENT PRONOUNCED ON: 26.02.2024


      THE HON'BLE MRS JUSTICE SUREPALLI NANDA


1. Whether Reporters of Local newspapers           :   Yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be       :       Yes
   marked to Law Reporters/Journals?

3. Whether Their Lordships wish to             :       Yes
   see the fair copy of the Judgment?


                                      _________________
                                      SUREPALLI NANDA, J
                                2
                                                                     SN,J
                                                        WP_11475 of 2015




      THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                   W.P.No.11475 OF 2015

%    26.02.2024

Between:


# Central Board of Trustees,
Employees Provident Fund
                                                 ...   Petitioner
                                   And


$ Employees Provident Fund Appellate Tribunal
& another

                                                ... Respondents

< Gist:
> Head Note:
! Counsel for the Petitioner        :    Mr.R.N.Reddy
^ Counsel for Respondents           :    Mr.G.Ravi Mohan
                                         Ld.Senior Counsel


? Cases Referred:
          -
                                3
                                                                     SN,J
                                                        WP_11475 of 2015




         HON'BLE MRS JUSTICE SUREPALLI NANDA

            WRIT PETITION No.11475 OF 2015

ORDER:

Heard Mr.R.N.Reddy, the learned counsel appearing

on behalf of the petitioner, Mr.G.Ravi Mohan, learned

Senior Designated Counsel appearing on behalf of the 2nd

respondent.

2. PRAYER:

The petitioner approached the court seeking prayer

as under:

"To issue Writ, Order, or Direction more particularly one in the nature of Writ of Certiorari calling for the records relating to the order dated 20.11.2014 passed in ATA No. 349(1)2010 by the 1st respondent Tribunal and quash the same as illegal and unjust and in consequence direct the 2nd respondent to pay the dues assessed by the petitioner through order dated 30.04.2010 u/S 7B of the Act."

3. PERUSED THE RECORD.

a) The relevant portion of the order impugned dated

20.11.2014 passed in ATA No.349 (1) of 2010 on the file

of Employees Provident Funds Appellate Tribunal, New

Delhi, reads as under:

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"19. The learned counsel for the respondent strongly opposed the arguments of the counsel for appellant and contended that the burden lies on the appellant to produce the records and to satisfy the contention raised by the respondent. In absence of these documents the respondent rightly came to the conclusion and passed order. He further stated that the judgment referred by the counsel for appellant is no relevancy of facts.

20. After considering the material available on records and after pursuing the judgment referred by the counsel for appellant, it is found that the respondent authority while passing the order has not exercised the jurisdiction properly which is vested on it and failed to consider the documents, records and register which were in the custody of the respondent herein. The findings of the respondent in coming to the conclusion that the applicability of the appellant company with retrospective effect w.e.f., 1992- 93 is without any reason and without there being any evidence on record. The respondent has not filed any documents to show that there were 30 employees for the year 1992-93 and the said finding is vague and without any material on record.

21. After going through the letters of the appellant dated: 10.06.2003 and 22.05.2008, which shows that the respondent received the required documents such as Attendance register, wages register, salary slip and order of Hon'ble Labour Court in Rajkumar, Abdul Basith and Premraj which were received by one Janardhan Rao and

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R.Sridevi on 10.06.2003 and on 22.05.2008. All together about 17 documents were received by the respondent authority, but the respondent authority not even whispered nor gave any finding in respect to documents received by the respondent in impugned order. Moreover the respondent alleges that the appellant has not produced documents such as voucher for wages and salary for the relevant period is incorrect. The order of the Hon'ble High Court was in W.P.No. 6456/2009 were very clear that the respondent should pass an order basing upon the documentary evidence which were available on the said date. Admittedly in the present case the respondent has received the documents from the appellant pertaining to the alleged period on two different occasions. But there is no finding in the impugned order as per the orders passed by the Hon'ble High Court.

22. In view of the above discussion, the order passed by the respondent under Section 7-A and the order passed under Section 7-B of the Act are set aside and the appeal is allowed. Copy of the order be sent to both parties. File be consigned to the record room.

b) The counter affidavit filed by the 2nd respondent, in

particular, paras 4, 5, 7 to 10, read as under:

4) It is respectfully submitted that the 2nd Respondent company was established in the year 1991 with 8 employees stared in premises admeasuring about 200 Sq.

ft. The 2nd Respondent acquired his own premises in the

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year 1998. Since inception of the company it has been maintaining the attendance, wages register etc.

5) It is submitted that, the Petitioner's officials visited the 2nd Respondent shop for the first time on 22-01-2003 and after verification of the records they directed the 2nd Respondent to pay an amount of Rs. 16,775/-, and accordingly the same was paid. And therefore again the petitioner issued a letter dated 11-02-2003 making applicability of the 2nd Respondent unit under E.P.F. Act. 1952, and allotted a number AP/HYD/43918. In spite of producing the relevant records an order was passed dated 17-02-2004 in respect to applicability of the Act. Aggrieved by the said order dated 17-02-2004, the 2nd Respondent filed an appeal to the appellate Tribunal at Delhi. To the 2nd Respondent unfortunate there was a fire accident at Tribunal and finally the Hon'ble Tribunal dismissed the appeal for default. Aggrieved by the same, the 2nd Respondent herein filed W.P.No. 6456/2009, before this Hon'ble Court an order dated 26-03-2009 setting aside the order and remanded the matter to the petitioner to consider as was passed by the 2nd Respondent case basing upon the records available. It is submitted that during the pendency of the said proceedings the petitioner recovered an amount of 12,39,219/-. The petitioner herein passed a final order dated 30-04-2010 directed the 2nd Respondent to pay a sum of Rs. 24,77,779/- after deducting the amount paid.

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7) It is submitted that, the orders passed by the Hon'ble 1st respondent is absolutely basing upon evidence and the documents available.

8) It is submitted that, for implementation of social welfare enactment the petitioner here cannot deprived legible rights which are entitle by the 2nd Respondent.

9) It is submitted that, there is a categorical finding that the petitioner herein have received the required documents such as wage Register, attendance register and salary slips and other relevant documents all put together 17 documents by the petitioner's officials therefore having received the said documents the petitioner's cannot alleged that this respondent has failed to submit the documents.

10) It is submitted that, the petitioner has not produced any evidence to take the 2nd Respondent Company into the fold of P.F. Act. w.e.f. 1992-1993.

4. The case of the petitioner in brief as per the

averments made in the affidavit filed in support of the

present writ petition.

a) The 2nd respondent is covered under the provisions of the

Employees Provident Funds and Miscellaneous Provisions Act,

1952 vide Code No.AP/43198. The 2nd respondent failed to pay

the dues for the period from 1992-93 to 2005-06. Therefore, an

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enquiry under Section 7A of the Act had been initiated and dues

were assessed through order dated 16.12.2008.

b) It is further the case of the petitioner that the 2nd respondent

filed a review application and the same had been rejected

through order dated 16.03.2009 and that the 2nd respondent

filed writ petition No.6456 of 2009 and the same was disposed

off on 26.03.2009 remanding the case to the reviewing authority

under Section 7B of the Act. The petitioner had enquired into

the matter under Section 7B of the Act and passed order dated

30.04.2010 confirming the order dated 16.12.2008 passed under

Section 7A of the Act and that 2nd respondent questioned the

same before the 1st Respondent Tribunal in Appeal ATA No.349

(1) of 2010. And that the 1st respondent erroneously allowed

the appeal through the order dated 20.11.2014. Aggrieved by

the same, the petitioner approached the Court by filing the

present writ petition.

5. The learned counsel appearing on behalf of the

petitioner mainly puts forth the following contentions:

(i) The 1st respondent failed to consider that the 2nd

respondent failed to submit any proof (like the salary

vouchers, wage registers) in support of 2nd respondent's

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contention that the salaries and wages reflected in profit

and loss account and further that they pertain to the

excluded employees, either before the primary authority or

before the review authority or before the 1st respondent

and thus, erred in allowing the appeal.

(ii) The 1st respondent failed to consider that the orders

like the impugned order dated 20.11.2014 will make the

implementation of a social welfare enactment impossible.

(iii) The order passed under 7B is as per the law and

basing on the documents and therefore the 1st respondent

ought not have interfered with the said order passed under

Section 7B, whereunder the dues to the tune of

Rs.24,77,779/- had been assessed vide order dated

30.04.2010.

(iv) The competent authority rightly passed the order

dated 30.04.2010 based on the income tax returns of the

2nd respondent herein and that the 2nd respondent had not

filed any documents for the alleged period.

(v) The order impugned dated 20.11.2014 passed in ATA

No.349 (1) of 2010 by the 1st Respondent Tribunal should

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be quashed and the 2nd respondent should be directed to

pay the dues assessed through order dated 30.04.2010

under Section 7B of the Act.

Based on the aforesaid submissions, the learned

counsel for the petitioner contended that the writ

petition should be allowed as prayed for.

6. The learned counsel appearing on behalf of the 2nd

respondent placing reliance on the counter filed in the

present writ petition mainly puts forth the following

submissions:

(i) The orders passed by the 1st respondent dated

20.11.2014 in case No.ATA.No.349(1) of 2010 is based on

evidence and documents available.

(ii) For implementation of social welfare enactment, the

2nd respondent company herein cannot be deprived of its

legible rights, legally entitled to the 2nd respondent herein.

(iii) There is a categorical finding in the order impugned

in the present writ petition dated 20.11.2014 in case

No.ATA No.349 (1) of 2010 that the petitioner herein had

received the required documents such as wage register,

attendance register and salary slips and other relevant

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documents, all put together 17 documents by the

petitioner's officials, therefore having received the said

documents the petitioner herein cannot allege that the 2nd

respondent failed to submit the documents.

(iv) The petitioner failed to produce any evidence to take

the 2nd respondent company into the fold of PF Act with

effect from 1992-1993.

(v) Without there being any evidence on record the

petitioner wrongly came to the conclusion that the 2nd

respondent engaged 30 employees.

(vi) No efforts are made by the petitioner herein to

explain in respect of the documents filed by the 2nd

respondent and with regard to the delay in initiating

enquiry under Section 7A and the order dated 30.04.2010

passed by the petitioner herein confirming the order dated

16.12.2008 passed under Section 7A of the Act are not

sustainable in law as rightly held by the 1st respondent

herein.

Basing on the aforesaid submissions the learned Senior

Counsel appearing on behalf of the 2nd respondent

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contended that the writ petition should be dismissed in

limine.

DISCUSSION AND CONCLUSION:

7. A bare perusal of the order impugned dated

20.11.2014 passed in No. ATA No.349(1) of 2010 by the

1st respondent clearly indicates a categorical finding

against the Regional Provident Fund Commissioner - I,

Regional Office, Hyderabad herein that RPFC Hyderabad,

while passing the order under Section 7B of the

Employees Provident Funds and Miscellaneous Provisions

Act, 1952 (for short 'EPFMP' Act) determined EPF dues in

respect of the 30 employees for the period from 1992-93

to 2005-06 and directed the 2nd respondent herein to pay

the said amount of Rs.24,77,779/- as balance dues

payable by the 2nd respondent herein for the period from

08.09.1992 to 2005-2006 and further directed the 2nd

respondent to pay the said amount within 10 days, failing

which the amounts shall be recovered as per the

provisions of Section 8 of the 'EPFMP' Act, 1952, and the

RPFC Hyderabad had not exercised the jurisdiction

properly which is vested on it and failed to consider the

documents, records and registers which were in the

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custody of the Regional Provident Fund Commissioner,

Hyderabad.

8. It is further very clearly observed in the order

impugned dated 20.11.2014 passed in No.ATA No.349(1)

of 2010 by the 1st respondent herein that the findings of

the Regional Provident Fund Commissioner, Hyderabad in

coming to the conclusion that the 2nd respondent company

is an establishment covered under the provisions of the

Employees Provident Funds and Miscellaneous Provisions

Act, 1952, with retrospective affect, with effect from

1992-93 vide the orders dated 30.04.2010, is without any

reason and without there being any evidence on record.

9. In fact there is a very clear observation in the order

impugned dated 20.11.2014, in ATA No.349(1) of 2010

passed by the 1st respondent that the finding recorded by

the Regional Provident Commissioner, Hyderabad, that

the 2nd respondent herein had not produced documents

such as vouchers and wages and salary for the relevant

period is incorrect. Since altogether 17 documents were

received from the 2nd respondent herein but curiously

however the Regional Provident Fund Commissioner,

Hyderabad did not record any finding in respect to the

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said documents and instead alleged that the 2nd

respondent company had not produced documents such as

voucher for wages and the salary for the relevant period

and the same is incorrect as borne on record as observed

by the 1st respondent Tribunal on perusal of the relevant

records.

10. This Court opines that it is settled law that liability

cannot be saddled upon an establishment in the name of

the compliance without identification of the employees,

since in the present case without there being any

evidence on record the RPFC Hyderabad wrongly came

into a conclusion that the 2nd respondent company

engaged 30 employees. In the writ petition filed by the

2nd respondent company, the High Court in its order dated

26.03.2009 passed in W.P.No.6456 of 2009 very clearly

observed that the RPFC Hyderabad should pass an order

basing upon the documentary evidence which were

available on the said date and admittedly as observed in

the order impugned dated 20.11.2014 passed by the 1st

respondent herein, the RPFC Hyderabad had received the

documents from the 2nd respondent company pertaining

to the alleged period on two different occasions. But

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however, there is no finding recorded by the RPFC

Hyderabad as per the said orders of the High Court at

Hyderabad dated 26.03.2009 passed in W.P.No.6456 of

2009.

11. Taking into consideration the aforesaid facts and

circumstances of the case, and duly considering the clear

observations made at paras 20 to 22 of the impugned

order dated 20.11.2014 passed in ATA No.349(1) of 2010

by the 1st respondent herein (referred to and extracted

above), in favour of the 2nd respondent herein, this Court

is of the firm opinion that the order impugned dated

20.11.2014 passed by the 1st respondent in ATA

No.349(1) of 2010, warrants no interference by this Court

under Article 226 of the Constitution of India and

accordingly, the same is dismissed. However, there shall

be no order as to costs.