Ravi R. Tripathi, J.
1. Learned Advocate Mr. Joshi for M/s. Trivedi & Gupta learned Advocates for the petitioner invited attention of the Court to the order passed on 1-2-2008 by the Authorized Officer of Employees Provident Fund Organization, Vadodara, copy of which is produced at Annexure A.
2. The learned Advocate for the petitioner submitted that the officer concerned has travelled beyond the order of remand, a copy of judgment and order is produced as Annexure-D, passed in Special Civil Application No. 13404of 2004 dated 22-9-2005 (Coram : Akil Kureshi, J.). The learned Advocate for the petitioner invited attention of the Court to last para of judgment which reads as under:
Since, full material particulars regarding the existing number of trainees at the establishment is not before me, it is not possible for me to pass final conclusive order in this regard. It will be for the authorities to re-examine the issue and come to an appropriate conclusion on the basis of the observations made hereinabove. For the above purpose, impugned order is quashed. The petitioner shall file a representation before the respondents indicating the number of employees and trainees with the establishment at the relevant period. After examining the records and conducting such inquiry as may be necessary, respondents shall pass fresh orders in accordance with law, bearing in mind the observations made in this Order. With these directions, the petition is allowed to the above extent. Rule is made absolute accordingly. No Order as to costs.
3. The learned Advocate for the petitioner submitted that though there was no question of clubbing all the Ahmedabad, Baroda and Bombay units, the authorities have proceeded on the basis of clubbing theses units together on the ground that senior-most partner Mr. C.C. Choksi, C.A. was in overall control of all the officers. The learned Advocate for the petitioner, in this regard, invited attention of this Court to the conclusions recorded by the authority at page 24. The relevant part of the conclusions read as under:
Accordingly, the respondents are only an off-shoot of the parent Company M/s. C.C. Chokshi & Co., Mumbai. Due to this reason the respondents were coverable under the Act from the date of its coming into existence i.e. 13-7-1985 under Section 2A of the Act since the parent Company M/s. C.C. Chokshi & Co. had already been covered under the Act with effect from 31-10-1964. Similarly, the Ahmedabad office of the respondents is also coverable from the date of its coming into being i.e. with effect from 1-7-1997 irrespective of the fact whether the respondents had employed 20 employees or less than 20 or more than 20 on the date of its coming into being i.e. 13-7-1985 (See Section 2A of the Act), and thereafter, on that date the respondents had 3 employees. Therefore, the dispute with reference to the controversy of 22 employees or less than 22 employees does not come into the way of applicability of the Act on the respondents at all. In conclusion, the respondents, are therefore, coverable with effect from 13-7-1985 with staff strength of 3 (three) employees. As regards the complainants, contention the respondents had 22 employees in May, 1989. The respondents mentioned that they had 12 articled clerks who were not their employees but trainees only, so the respondents were not coverable under the Act with strength of less than 20 employees (i.e. 22-12 = 10 employees). This argument of the respondents is contradictory to their own written admission.
4. When the attention of the learned Advocate for the petitioner was invited to the aforesaid part of the order, the learned Advocate for the petitioner is not able to answer as to way the officer has recorded such statement. He is also not able to point out that the petitioner had ever approached the Officer for recording statement incorrectly. If that being so, the statement recorded by the Officer is required to be relied upon, and there is no reason why it should not be relied upon. The order then proceeded to record...
As per the Chapter IV of The Chartered Accountants Regulations, 1988 the respondents at the most could have had only 6 articled clerks. Therefore, their contention that they had 12 articled clerks is not sustainable. As per inquiry report dated 21-3-1997 the respondents admitted that they have 16 employees.
5. The fact that the petitioner had admitted before the Officer that they had 16 employees and it is also on record that they had 12 articled clerks whereas the petitioner was entitled to have only 6 articled clerks, and there for, the officer has rightly taken 6 articled clerks as the employees of the petitioner which along with 16 employees comes to twentytwo. What is recorded in the order is,
The complainants (E.P.F.O.) were therefore right to say that the respondents had 22 employees because 16 employees + 6 employees is exactly 22 employees as out of 12 number of articled clerks as stated by the respondents only 6 were articled clerks and remaining 6 had to be employee for the reason that the respondent could not have had more than 6 articled clerks at that time. So, there were 22 employees and contention of the E.P.F.O. is correct.
6. The aforesaid discussion clearly shows that the clubbing of units of Ahmedabad, Baroda and Bombay is not taken into consideration by the Officer and he has taken into consideration the submissions which were made by the petitioner before the Officer. The Officer, in turn, has recorded that in the inquiry report dated 21-3-1997, the respondents admitted that they had 16 employees. Officer then proceeded to record that out of 12 articled clerks if the petitioner was entitled to have only 6 articled clerks, the officer, has therefore, proceeded on the line that 6 articled clerks are to be treated as employees. The officer has not committed any error in coming to the conclusion that the strength of the employees was twentytwo.
7. The learned Advocate Mr. Joshi for the petitioner wanted to rely upon grounds 4(e) and 4(f) of the petition. The Court is of the opinion that if at all these grounds are to be relied upon, the same should be done before the officer because these all involve questions of disputed facts, as to what number of employees, the petitioner was having. On one hand, the petitioner is not objecting to and on another hand has not invited attention of the Officer to the statement recorded by the Officer contending that the statement recorded by the Officer is incorrect. Thus, the contention which is not raised before the Officer at relevant time, cannot be allowed to be raised before this Court.
8. This Court does not find any reason to interfere with the order passed by the authority, and therefore, petition is dismissed. Notice is discharged. Interim relief, granted earlier, if any, shall stand vacated.