The Union Of India & Ors. v. Devi Dayal School

learned counsel for the sole respondent.

In the instant writ application, the petitioner prays for setting aside the order dated 27.11.2008 passed in ATA No.51(3) of 2005 by Presiding Officer, Employees Provident Fund Appellate Tribunal, New Delhi, whereby the Tribunal has been pleased to set aside the order dated 25.10.2004 passed by the Regional Provident Fund Commissioner, Bihar, Patna under Section 7 A of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the Act’) for assessment of the Provident Fund dues in respect of the employees of the three schools namely M/s Devi Dayal High School, M/s. Ma Indira Gandhi Balika Uchh Vidayalaya and M/s Patliputra Junior 2 Patna High Court CWJC No.12306 of 2009 (7) dt.07-05-2012 School.

The case of the petitioner is that it is a separate institution and there is no functional integrity between this establishment and Patliputra Junior School and Ma Indira Gandhi Balika Uchh Vidayalaya, Patna. It appears that a proceeding under Section 7-A of the Act was initiated against the school on complaint of some of teachers that Provident Fund contribution on behalf of the teachers working in Patliputra Junior School and Ma Indira Gandhi Balika Uchh Vidayalaya, Patna are not being deposited by the petitioner. It was also complained that there is a common nexus amongst the schools and are part of the same establishment.

The Regional Provident Fund Commissioner after hearing the parties observed that there is functional integrity amongst the schools and as such the employees of the three schools are clubbed for determining liability under Section 7 A of the Act.

The respondent school being aggrieved filed an appeal before the Appellate Tribunal giving rise to appeal bearing ATA No. 51(3)/2005. The appellate court opined that there was no common nexus between the three schools and as such allowed the appeal. The appellate tribunal further observed that there are only 3 Patna High Court CWJC No.12306 of 2009 (7) dt.07-05-2012 18 teachers in the school and as such it would not come under the purview of Act.

The petitioner submits that way back in the year 1990, all the three institutions were clubbed together as one establishment for determination of P.F. contribution under Section 7 A of the Act. The aforesaid order remained unaltered up to the High Court. Learned counsel submits that the respondent did not challenge the clubbing of all the three institutions in the High Court and as such it/he cannot challenge for clubbing the subsequent periods. Learned counsel for the petitioner further submits that the appellate tribunal erred in not considering the aforesaid aspect.

I have heard the counsel for the parties. It appears that earlier a proceeding was initiated in the year 1990-91 under Section 7 A of the Act against the respondent school. In the proceeding the three schools were clubbed for purposes of determining liability under Section 7 A of the Act. At the relevant time, the Tribunal was not in existence and the respondent school challenged the order in writ application bearing C.W.J.C. No.5208 of 1991. The order was challenged on the ground that no sufficient opportunity was given to the school to place its case. The Division Bench held otherwise and observed that there was no violation of 4 Patna High Court CWJC No.12306 of 2009 (7) dt.07-05-2012 principles of natural justice and due opportunity was given to the school in the proceeding. This Court further observed that the review application under Section 7 B of the Act was filed beyond the period of limitation and as such it was rightly dismissed as time barred.

The instant proceeding is of a subsequent period i.e. the period 1996 to 2001. The contention of the respondent is that there is no nexus between the three institutions and common ownership would not be conclusive proof in itself to show that there stands functional integrity amongst the three institutions and the writ application preferred by Department be dismissed. The respondent further submits that Devi Dayal School is a recognized school whereas the other two schools are propriety schools. He submits that issue of clubbing was not raised in the High Court.

It appears that all these points were not taken before the Regional Provision Fund Commissioner as well as the Appellate Tribunal. In this view of the matter, I set aside both the orders of the two courts namely the Regional Provision Fund Commissioner as well as the Appellate Tribunal and remand the mater to the first court i.e. the court of Regional Provision Fund Commissioner. It will be open for the respondent to state before the Regional Provision Fund Commissioner that clubbing of the 5 Patna High Court CWJC No.12306 of 2009 (7) dt.07-05-2012 school is not correct as there is no functional integrity between the three institutions. The Regional Provident Fund Commissioner / Assistant Provident Fund Commissioner may conduct a fresh enquiry after giving due notice to the parties.

With the aforesaid liberty, this application is