Tata Chemicals Ltd. Vs. Regional Provident Fund Commissioner-ii - Court Judgment

SooperKanoon Citationsooperkanoon.com/736026
SubjectService;Civil
CourtGujarat High Court
Decided OnFeb-04-2004
Case NumberSpecial Civil Application No. 17730 of 2003
Judge Jayant Patel, J.
Reported in[2004(101)FLR1224]; (2004)IIILLJ435Guj
ActsCode of Civil Procedure (CPC) - Order 5, Rule 9 ;Indian Penal Code (IPC) - Sections 193, 196 and 228
AppellantTata Chemicals Ltd.
RespondentRegional Provident Fund Commissioner-ii
Appellant Advocate K.S. Nanavati, Adv. for;Nanavati Associates for Petitioner No. 1 in Special Civil Application No. 17730 of 2003
Respondent Advocate P.J. Mehta, Adv.Special Civil Application No. 17730 of 2003
Excerpt:
civil - summons - order 5 rule 9 of code of civil procedure, 1908 and sections 193, 196 and 228 of indian penal code, 1860 - petitioner directed to serve summons upon contractors - direction challenged - respondent should issue summons to contractors by procedures in law - authorities competent to call for documents related to contractors from petitioners for identification - said competency not extended to compel petitioner who is party to proceedings to issue summons - direction non est in law - illegal direction set aside. - jayant patel, j. 1. rule. mr. mehta, learned advocate for therespondent waives services of rule. with the consent ofparties, the matter is taken up for final hearing today.2. the present petition is preferred by thepetitioner for challenging the legality and validity ofthe order dated 9.12.2003/12.12.2003 so far as it relatesto directing the petitioner-company to serve its summonsupon 129 contractors.3. heard learned senior counsel mr. k.s. nanavatifor the petitioners and mr. mehta for the respondent.4. the contention raised on behalf of the petitioneris that there is no power to compel the petitioner toserve the summons to the contractor. mr. k.s. nanavatisubmitted that whatever details of the contractorsavailable with the company are given and the petitioneris also ready to give further details if they are in aposition to do so. it is further submitted that thecontractors are impleaded as parties, and, therefore, itwill be for the concerned authority to effect the servicethrough proper machinery and the petitioner cannot becompelled to effect service of the summons. mr.nanavati relied on the decision of a co-ordinate bench ofthis court [coram: ravi r. tripathi, j] in spl. c.a.no. 15321 of 2003.5. mr. mehta, on behalf of the respondent,submitted interalia that the contractors are the agentsof the petitioner company, and it is the petitionercompany who is having all the details, and, therefore,with a view to speed up the proceedings, the petitioneris required to serve the summons. mr. mehta has notbeen able to show any source of authority on theconcerned officer to compel the petitioner to serve thesummons. however, mr. mehta tried to submit that thereis power under section 7a(2) with the officer.6. section 7a(2) of the employees provident fundand misc. provisions act, 1957 provides that forconducting inquiry, the authority shall have the samepowers as are vested in a court under the code of civilprocedure, and any inquiry shall be deemed to be judicialproceedings within the meaning of secs. 193 and 228 andfor the purpose of section 196 of the ipc. therefore,there is power to issue summons and the said aspect isnot even disputed by the learned counsel for thepetitioner. however, so far as the mode of service ofsummons is concerned, it will be either through theagency serving the summons, the government machinery orthe police as the case may be, as per the provisions ofthe civil procedure code. the reference may be made tothe relevant provisions of code of civil procedure forservice of summons as per order v rules 9 to 31 of c.p.c.providing for issue and service of summons. it may bethat in a given case if the authority finds that thesummons cannot be served personally, then it may resortto procedure of service by post, by substituted servicethrough public notice and other mode as per c.p.c.however, it is difficult to accept that such power can beextended for the purpose of enforcing service of summonsthrough one of the party to the proceedings. thepetitioner company is one of the party to the proceedingsand if the contractors are impleaded as parties, it willbe for the authorities to affect the service of summonsthrough the procedure known to law as per the code ofcivil procedure. if the authorities find that certaindocuments are required from the petitioner, thencertainly orders can be passed calling upon thepetitioner company for production of such documents.such documents may also help in identification of thecontractors, the address of the contractors and suchother details which may be found proper by the authority,for the purpose of conducting of the inquiry and itsimplementation thereof.7. even in the decision of this court in sca no.15321/03 dated 08.12.2003, this court [coram r.r.tripathi, j.] has held that if the employer is willing toco-operate with the provident fund authorities, he mayserve the contractors extending necessary cooperation,and in the event of non-co-operation, the authorities mayact in accordance with law.8. under the circumstances, it appears that the pfauthorities could not have directed the petitioner who isparty to the proceedings to serve the summons aftercollecting them from the office of the authorities, inthe absence of any power shown to this court on the partof the pf authorities to compel one of the parties to theproceedings to effect service of summons on the otherparty to the proceedings, which in the present case isthe contractors. hence i find that the impugned orderpassed by the pf commissioner cannot be sustained in theeye of law so far as it relates to directing thepetitioner to effect service of summons to the concernedcontractors.9. in view of the aforesaid, the order dated9.12.2003/12.12.2003 at annexure 'd' to the petition, sofar as it relates to directing the petitioner company toserve the summons on the contractors, are quashed and setaside, with a clarification that it will be open for thepf authorities to effect service of summons upon thecontractors through the manner and method as providedunder the code of civil procedure referred tohereinabove. it is also clarified that the remainingpart of the order is not challenged by the petitioner,and therefore, the same shall continue to operate. thepetition is allowed to the aforesaid extent. rule madeabsolute accordingly. no order as to costs.
Judgment:

Jayant Patel, J.

1. Rule. Mr. Mehta, learned advocate for therespondent waives services of rule. With the consent ofparties, the matter is taken up for final hearing today.

2. The present petition is preferred by thepetitioner for challenging the legality and validity ofthe order dated 9.12.2003/12.12.2003 so far as it relatesto directing the petitioner-Company to serve its summonsupon 129 Contractors.

3. Heard learned senior counsel Mr. K.S. Nanavatifor the petitioners and Mr. Mehta for the respondent.

4. The contention raised on behalf of the petitioneris that there is no power to compel the petitioner toserve the summons to the Contractor. Mr. K.S. Nanavatisubmitted that whatever details of the Contractorsavailable with the Company are given and the petitioneris also ready to give further details if they are in aposition to do so. It is further submitted that theContractors are impleaded as parties, and, therefore, itwill be for the concerned authority to effect the servicethrough proper machinery and the petitioner cannot becompelled to effect service of the summons. Mr.Nanavati relied on the decision of a co-ordinate Bench ofthis Court [Coram: Ravi R. Tripathi, J] in Spl. C.A.No. 15321 of 2003.

5. Mr. Mehta, on behalf of the respondent,submitted interalia that the Contractors are the agentsof the petitioner Company, and it is the petitionerCompany who is having all the details, and, therefore,with a view to speed up the proceedings, the petitioneris required to serve the summons. Mr. Mehta has notbeen able to show any source of authority on theconcerned officer to compel the petitioner to serve thesummons. However, Mr. Mehta tried to submit that thereis power under section 7A(2) with the officer.

6. Section 7A(2) of the Employees Provident Fundand Misc. Provisions Act, 1957 provides that forconducting inquiry, the authority shall have the samepowers as are vested in a court under the Code of CivilProcedure, and any inquiry shall be deemed to be judicialproceedings within the meaning of Secs. 193 and 228 andfor the purpose of section 196 of the IPC. Therefore,there is power to issue summons and the said aspect isnot even disputed by the learned counsel for thepetitioner. However, so far as the mode of service ofsummons is concerned, it will be either through theagency serving the summons, the government machinery orthe police as the case may be, as per the provisions ofthe Civil Procedure Code. The reference may be made tothe relevant provisions of Code of Civil Procedure forservice of summons as per Order V Rules 9 to 31 of C.P.C.providing for issue and service of summons. It may bethat in a given case if the authority finds that thesummons cannot be served personally, then it may resortto procedure of service by post, by substituted servicethrough public notice and other mode as per C.P.C.However, it is difficult to accept that such power can beextended for the purpose of enforcing service of summonsthrough one of the party to the proceedings. Thepetitioner Company is one of the party to the proceedingsand if the Contractors are impleaded as parties, it willbe for the authorities to affect the service of summonsthrough the procedure known to law as per the Code ofCivil Procedure. If the authorities find that certaindocuments are required from the petitioner, thencertainly orders can be passed calling upon thepetitioner Company for production of such documents.Such documents may also help in identification of thecontractors, the address of the contractors and suchother details which may be found proper by the authority,for the purpose of conducting of the inquiry and itsimplementation thereof.

7. Even in the decision of this Court in SCA No.15321/03 dated 08.12.2003, this Court [Coram R.R.Tripathi, J.] has held that if the employer is willing toco-operate with the Provident Fund authorities, he mayserve the contractors extending necessary cooperation,and in the event of non-co-operation, the authorities mayact in accordance with law.

8. Under the circumstances, it appears that the PFauthorities could not have directed the petitioner who isparty to the proceedings to serve the summons aftercollecting them from the office of the authorities, inthe absence of any power shown to this Court on the partof the PF Authorities to compel one of the parties to theproceedings to effect service of summons on the otherparty to the proceedings, which in the present case isthe Contractors. Hence I find that the impugned orderpassed by the PF Commissioner cannot be sustained in theeye of law so far as it relates to directing thepetitioner to effect service of summons to the concernedcontractors.

9. In view of the aforesaid, the order dated9.12.2003/12.12.2003 at Annexure 'D' to the petition, sofar as it relates to directing the petitioner Company toserve the summons on the Contractors, are quashed and setaside, with a clarification that it will be open for thePF Authorities to effect service of summons upon thecontractors through the manner and method as providedunder the Code of Civil Procedure referred tohereinabove. It is also clarified that the remainingpart of the order is not challenged by the petitioner,and therefore, the same shall continue to operate. Thepetition is allowed to the aforesaid extent. Rule madeabsolute accordingly. No order as to costs.