$~16 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision :
07. h September, 2017 W.P.(C) 8078/2016, CM APPL. 33484/2016 TOPS DETECTIVE & SECURITY SERVICES LTD......... Petitioner
Through Mr. Rajiv Shukla, Mr. Davinder Grover, Mr. Souvik Mukherjee, Advs. Versus EMPLOYEES PROVIDENT FUND ORGANIZATION & ANR ..... Respondent Through Mr. Tejaswi Kumar Pradhan, Adv. CORAM: HON'BLE MS. JUSTICE ANU MALHOTRA JUDGMENT (ORAL) ANU MALHOTRA, J.
1. 2. Arguments addressed on behalf of either side. Vide the present petition, the petitioner assails the impugned order dated 30.05.2016 of the Presiding Officer, EPFAT in ATA No.882(9)2011 whereby the appeal was dismissed in view of the non compliance of the directions of pre-deposit, which were directed vide order dated 02.01.2012 in the said appeal. W.P.(C) 8078/2016 Page 1 of 8 3. Vide a prior order dated 02.01.2012 of the EPFAT in the same appeal ATA No.882(9)2011, it had also been directed to the effect that no prima facie case had been made out for total waiver of the condition of pre-deposit as contemplated under Section 7(O) of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the ‘Act’) but the said condition of 75% was reduced to 50% and subject to the said deposit of 50% of the assessed amount which the respondent i.e. the petitioner herein was directed to deposit within six weeks, the appeal was admitted for consideration and the operation of the impugned orders dated 23.08.2011 and 18.11.2011 of the RPFC, Nasik under Section 7A & 7B of the Act were stayed and the RPFC, Nasik had been directed not to take any coercive measures till the disposal of the appeal.
4. It is contended on behalf of the petitioner that the initial order under Section 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 dated 23.08.2011 is totally in violation of the principles of natural justice in as much as the Enforcement Officer’s Report dated 24.07.2011 was never supplied to the petitioner herein and that the Enforcement Officer’s Report dated 24.07.2011 and the calculation sheet therein were taken into account and considered by the RPFC, Nasik and the order under Section 7A of the Act was given on the very next day i.e. on 25.07.2011 and thus reliance is placed on behalf of the petitioner on the verdict of the High Court of Jharkhand in Jharkhand State House Board Vs. Employees’ Provident Fund Organization, Ministry of Labour and Ors., W.P.(C) No.4246/2012 decided on 20.03.2015 to submit that the copy of the W.P.(C) 8078/2016 Page 2 of 8 Enforcement Officer’s Report dated 24.07.2011 should have been furnished to the petitioner to give an opportunity to the petitioner herein to explain the calculation for the period under consideration, which was before the EPFAT i.e. from the period from April, 2004 to March, 2007 and that the reliance placed by the EPFAT, Nasik on the Enforcement Officer’s Report on the basis of the trial balance sheet for the period February, 2004 to March, 2004 was inappropriate and incorrect.
5. Likewise, reliance has been placed on behalf of the petitioner on the verdict of the High Court of Calcutta in Divyajyoti Sponge Iron Pvt, Ltd. and Anr. Vs. The Assistant P.F. Commissioner and Ors., W.P. No.1803/2006 decided on 14.01.2008 to contend that a reasonable opportunity ought to have been given to the petitioner to put forth its contention in relation to the observations that have been made in the report of the Enquiry Officer.
6. A similar submission is sought to be made by the petitioner by placing reliance on the verdict of the Hon’ble Supreme Court in Food Corporation of India Vs. Provident Fund Commissioner and Others, Civil Appeal No.4552/1989 decided on 26.10.1989 and it has inter alia been submitted that the trial balance reported on behalf of the RPFC, Nasik on the basis of the Enforcement Officer’s Report dated 24.07.2011 was without any determination and identification of the workmen and those who were entitled to the amount of the PF and on the verdict of the Hon’ble Supreme Court in H.P. Forest Corporation Vs. Regional Provident Fund Commissioner, Civil Appeal No.5717/2001 decided on 03.04.2008. W.P.(C) 8078/2016 Page 3 of 8 7. It has also been submitted on behalf of the petitioner that in similar circumstances in Jaibharat Textile and Real Estate Ltd. Vs. Regional Provident Fund Commissioner-II, W.P. (C) 10096/2015 decided on 17.12.2015 a verdict of this Court, an opportunity had been granted to the petitioner therein with restoration of the appeal before the EPFAT with the direction that it be decided on merits in as much as it was observed to the effect that the contentions of the petitioner for its liability to make compliance of the pre-deposit condition and of its application under Section 15(i) of the Act being there pending, had not been considered.
8. Reliance is also placed on behalf of the petitioner on the verdict of the Hon’ble Supreme Court in Civil Appeal No.6639/2008 dated 10.11.2008 in the case titled as Mukesh Kumar Gupta Vs. Commissioner of Customs & C. Excise & Anr. to contend that where the appeal had been dismissed in default for payment of pre-deposit of the penalty amount of Rs.10 lacs, the said condition was modified to the effect that the petitioner shall deposit a sum of Rs.4,50,000/- in addition to Rs.50,000/- stated to have already been deposited by the petitioner therein and the condition of the pre-deposit was set aside and the appeal was directed to be restored to its original number and to be decided on merits by the Tribunal.
9. Reliance is also placed on behalf of the petitioner on the verdict of this Court in Delhi Iron and Steel Stockists Assn. Vs. Regional P.F. Commissioner, decided on 11.10.1976, also in relation to the contention that the copy of the Enforcement Officer’s Report dated 24.07.2011 had not been supplied to the petitioner and that the W.P.(C) 8078/2016 Page 4 of 8 petitioner had thus not been informed as to what was the basis of the demand nor of the basis of the calculation made by the Enforcement Officer.
10. Reliance is also placed on behalf of the petitioner on the verdict of the Patna High Court in India Mica and Micanite Industries Ltd. Vs. Regional Provident Fund Commissioner, Civil Writ Jurisdiction Case No.710/1971, decided on 03.05.1973 whereby an opportunity was granted to the petitioner company to produce relevant papers with the direction to the Regional Provident Fund Commissioner to pass a final order of assessment under Section 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 in accordance with law.
11. It has further been submitted on behalf of the petitioner in reply to a specific Court query that the petitioner had been unable to make the compliance of the directions dated 02.01.2012 as also in the enhanced period of time of further eight weeks directed vide order dated 15.03.2012 in EPFAT in ATA No.882(9)2011, due to financial constraints.
12. On behalf of the respondent, learned counsel for the respondent has vehemently refuted the contentions made on behalf of the petitioner of the aspect of non compliance of the principles of natural justice by non supply of the copy of the Enforcement Officer’s Report dated 24.07.2011 and further submitted that the aspect of the unidentified workmen was de hors the issue assailed in the present petition as the impugned order dated 30.05.2016 of the Presiding Officer, EPFAT in ATA No.882(9)2011 whereby the appeal of the W.P.(C) 8078/2016 Page 5 of 8 petitioner herein had been dismissed was in view of the non compliance of the directions of pre-deposit directed vide order dated 02.01.2012 in the said appeal and also of the further directions dated 15.03.2012 vide which extension of time was granted.
13. Learned counsel for the respondent further submitted that the petitioner had deliberately evaded to place on record the copy of the order dated 15.03.2002 which indicates that a further period of 8 weeks of time from the date of the order dated 15.03.2002 for making the pre-deposit of the amount had been granted.
14. It has also been submitted on behalf of the petitioner that the order dated 25.07.2011 under Section 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 is cogent and clear and also takes into account the observations of the Supreme Court in M/s. Nasurddin Bidi Merchant Limited Vs. CPFC (Civil Appal No.4285/1998) whereby the Supreme Court has observed to the effect that the assessment of the dues made by applying the best principle of average and the balance sheets in the absence of detailed record of workers is appropriate and sufficient as it is the liability of the employer to produce the details of wages that have been paid.
15. Placed on record is also the order of the RPFC-II, Nasik under Section 7-B of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 dated 18.11.2011 in relation to the application that has been filed under Section 7-B of the Act for seeking a review of the order dated 25.07.2011 whereby the RPFC-II, Nasik has categorically observed to the effect that the records had not been produced by the establishment for more than four years during the W.P.(C) 8078/2016 Page 6 of 8 period that the enquiry was on but soon after the order under Section 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 was passed, the employer claimed to have retrieved the records, which itself indicated that there was lack of diligence and that rather there was willful negligence and as the records as per the employers own admission were of the corporate office and summons had been issued to the Directors of the Establishment personally and there was no instability report there.
16. On a consideration of the rival submissions that have been made on behalf of the either side and taking into account the fact that the petitioner inter alia assails the initial order under Section 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 that there has been non compliance of the principles of natural justice, without any observation on the merits or demerits of the said submission, subject to deposit of the entire amount in terms of the order dated 02.01.2012 i.e. subject to deposit of the 50% of the assessed amount in terms of the order dated 25.07.2011 of the Regional Provident Fund Commissioner-II, Nasik which assessed amount is Rs.79,50,096/- with the EPFO, Nasik within a period of two weeks from today, the ATA No.882(9)2011 before the EPFAT, New Delhi, which in terms of Gazette Notification No.SO.1696(E) dated 26.05.2017 issued by the Ministry of Finance, Department of Revenue, Government of India and Section 185(4) of the Finance Act, 2017 stands transferred to the CGIT, New Delhi, would stand restored to its original stage subject to submission of proof of deposit of the said amount. For the said period of two weeks, no coercive action be W.P.(C) 8078/2016 Page 7 of 8 taken against the petitioner.
17. The petition is disposed of accordingly. Copy of the order be given dasti, as prayed. SEPTEMBER7h, 2017/mk ANU MALHOTRA, J W.P.(C) 8078/2016 Page 8 of 8