Sharp Electrodes Pvt. Ltd. v. The Assistant Provident Fund Commissioner
Case at a glance
Outcome
Disposed of
In the result, the writ petition is disposed of with adirection that the petitioner shall prefer an appeal before thecompetent authorities as against the orders dated 05
Provisions considered
Key paragraphs
- Para 77. It is apt for this Court to point out that in the decisionDIGPAL SINGH V. UNION OF INDIA, (2003) 1 Lab.L.J.876 (Madh. Pra.), itis held that a Biparte order passed under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, a remedyof…
- Para 99. As against the orders passed by the authorities dated05.12.2002 and 08.01.2003, the petitioner is having a viable, effective, efficacious and alternative remedy of preferring an appealto a Tribunal as per Section 7-I of the Employees Provident Fund and Miscellaneous Provisions Act 1952. Generally speaking…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2010 CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALW.P.No.9151 of 2003 Sharp Electrodes Pvt. Ltd.,Rep. By its Manager, No.330/2C1, CITRA Road, Sharp Nagar, Kalappatti, Coimbatore 641 035. ... Petitionervs.
The Assistant Provident Fund Commissioner, Employees Provident Fund Dr.Balasundaram Road, Coimbatore 641 018.
The Recovery Officer, Employees Provident Fund Organisation, Dr.Balasundarams Road, Coimbatore 641 018. ...RespondentsPrayer: Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorarified mandamusto call for the records relating to the order passed by the firstrespondent in No.TN/CDE/21859/CC-1/2002 dated 5.12.2002 andconsequential notice of demand in reference No.TN Recy/CC16/21859/ENF/03 dated 8.1.2003 and quash the same and forbear therespondents from in any manner demanding payment of contribution inrespect of the Workmen who were retained only on casual basis interms of the records maintained by the petitioner. For Petitioner : Mr.S.VadivelmuruganFor Respondents : Mr.K.Gunasekar ACGSCO R D E RThe petitioner is an Industry engaged in the manufacturer ofdifferent kinds of electrodes. It introduced a Voluntary RetirementScheme to the workers from 1986 because of the lack of productionactivities of the Company. The willing workman had opted out underthe Voluntary Retirement Scheme and 19 of them were relieved fromduty and the same was entered into by means of Section 18(1)Settlement under the Industrial Disputes Act, 1947. The said 19workers were paid their dues including the Provident Fund https://hcservices.ecourts.gov.in/hcservices/ contributions and they were relieved in terms of the VoluntaryRetirement Scheme.2. The stand of the petitioner/Company is that some of theworkman had represented to it stating that they may be provided withcasual employment whenever there was a need and when the petitionerprocured orders and therefore the petitioner assured them that theywould be given casual employment if need arose thereto. Accordinglyit offered casual employment to 14 workmen and maintained a separateattendant register for them.
While this being so, the Enforcement Officer of the firstrespondent office visited the petitioner's Company and verified theattendant register and found that 14 employees were not permanentworkers but they were employed on casual basis. It appears that thefirst respondent by means of proceedings dated 05.12.2002 addressedto the petitioner had issued a notice under Section 7-A of the Employees Provident Funds and Miscellaneous Provisions Act claiming atotal sum of Rs.1,34,034.80 /- to be paid by the petitioner, beingthe due amount for the period from 5/2001 to 9/2002 on the basis ofthe available records in his office and the break up figure forRs.1,34,034.80 /- runs as follows:-1.Employees' Provident Fund Contribution (A/c no.1) Rs.81,702-002.Employees' Pension fund Contribution (A/c no.10) Rs.43,503-003.Deposit Linked Insurance Fund Contribution(A/cno.21) Rs. 2,584-004.EPF Administrative charges (A/c no.2) Rs. 5,735-005.Deposit Linked Insurance Fund Administrative charges(A/c no.22) Rs. 510-00 Total Rs.1,34,034-80/-and the petitioner was directed to pay the aforesaid amount within 15days from the date of receipt of the order, etc., Later the secondrespondent had caused a notice of demand dated 08.01.2003 addressedto the Manager of the petitioner/Company claiming a sum ofRs.1,00,431.70 being the due amount and this notice was issued priorto attachment of movable and immovable properties and for a sum ofRs.1,00,431.70 /-, the details of amount mentioned in the RecoveryCertificate issued by the Authorised Officer are shown below:- Contributions Etc Damages Period1.Employees' Provident Fund 05/01 Contribution (A/c No.1) Rs. 61148 Rs. To 09/022.Employees Pension Scheme Contribution (A/c No.10) Rs. 32587 Rs.3.Deposit Linked Insurance Fund Contribution (A/c No.21) Rs. 1926 Rs. https://hcservices.ecourts.gov.in/hcservices/
Employees' Provident Funds Administrative Charges(A/c No.2)Rs. 4292/70 Rs.5.Deposit Linked Insurance Fund Administrative Charges(A/cNo.22)Rs. 478 Rs. ------------------ ------------- Total Rs.1,00,431.70/- ------------------ --------------4. The prime contention put forward on the side of thepetitioner is that the impugned order passed by the concernedAuthority dated 05.12.2002 was in violation of principles of naturaljustice inasmuch as the petitioner was not given a sufficientopportunity to defend itself properly and moreover the copy of thecomplaint was not furnished to it and the said order was a vitiatedone in lieu of malafide exercise of power at the biggest of the TradeUnion and also that the notice of recovery issued by the secondrespondent was also clearly unsustainable because of the fact in thesecond notice dated 08.01.2003 the amount of recovery was mentionedas Rs.1,00,431.70 /- and in view of the discrepancy of amountmentioned in the two proceedings of the first respondent and thesecond respondent dated 05.12.2002 and 08.01.2003 respectively, thepetitioner is entitled to file this writ petition before this Courtchallenging both the orders passed by the concerned authorities andtherefore prays for allowing the writ petition in the interest ofjustice.
A perusal of the proceedings dated 05.12.2002 of the secondrespondent addressed to the petitioner clearly mentions thefollowing:-"None appeared on 10.10.2002 hence adjourned to23.10.2002 as a last chance and finally to31.10.2002. On 31.10.2002 Shri R.Naganathan, Managerand Shri Paulraj, Assistant Manager appeared. Theystated that they have enrolled all the employees andsubmitted dues and filed returns also. However, onverification of complaint with returns it is seenthat one Smt. Manonmani is not enrolled. As regardsto others, the return filed show difference of 1 yearin date of joining also. This is contrary thestatement given by the Trade Union. The employer hasdenied the fact of date of joining being May 2001.Hence, the Trade Union Officials, workers in questionare also summoned for hearing on 13.11.2002. On13.11.2002 Shri R.Balasubramanian, VP (AITUC)appeared with the workers in question. They havestated that they have not left the company even for aday.
They are paid Rs.70 per day for ladies andRs.80 for gents. Operators are paid Rs.100 per day https://hcservices.ecourts.gov.in/hcservices/ and helpers Rs.90 per day. As the employer hasfailed to appear, the hearing is adjourned to14.11.2002. Shri R.Naganathan and Shri Paulrajappeared and agreed to the facts. They are directedto enrol the workers from their respective dates andremit dues in respect of them. Hence the dues areassessed on the basis of available information. "and as such the first respondent by means of Section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act 1952 haddetermined the dues liable to be paid by the petitioner for theperiod from 05/2001 to 09/2002 and the amount so determined comes toRs.1,34,034.80 /-. The contents of the first respondent'sproceedings dated 05.12.2002 latently and patently indicates that on10.10.2002 none on behalf of the petitioner had appeared before the Authority and therefore the matter was adjourned to 23.10.2002 aslast chance and finally it was posted to 31.10.2002.
Only on31.10.2002, one Mr.R.Naganathan, Manager and Mr.Paulraj, AssistantManager appeared and mentioned that they had enrolled all theemployees and submitted dues and also filed returns. But onverification of the complaint with returns, it was seen that oneSmt. Manonmani was not enrolled and in regard to others, the returnfiles show the difference of one year in the date of joining, etc.,which was contrary to the statement given by the Trade Union and as amatter of fact, the petitioner denied the fact of date of joiningbeing May 2001, etc., Also it is quiet evident from the proceedingsdated 05.12.2002 that one R.Balasubramanian, VP (AITUC) appeared withthe workers and stated that they had not left the Company even for aday and they were paid Rs.70 per day in respect of ladies and Rs.80for male and operators were paid Rs.100 per day and helpers Rs.90per day and when the employer had failed to appear the hearing wasadjourned to 14.11.2002 and R.Naganathan and Paulraj appeared andagreed to facts. They are directed to enrol the workers from theirrespective dates and remit dues in respect of them and therefore theassessment were made on the basis of the available information.
At this stage, it is significant for this Court to make apertinent mention that the proceedings of the first respondent dated05.12.2002 addressed to the petitioner shows a sum ofRs.1,34,034.80/- being the amount determined to be paid by thepetitioner whereas the notice of demand dated 08.01.2003 issued bythe Recovery Officer of the EPF, Coimbatore shows a sum ofRs.1,00,431.70/- to be paid by the petitioner Company. As such thereis a discrepancy in regard to the exact amount to be paid by thepetitioner has appeared to his notice as well as the second notice.
It is apt for this Court to point out that in the decisionDIGPAL SINGH V. UNION OF INDIA, (2003) 1 Lab.L.J.876 (Madh. Pra.), itis held that a Biparte order passed under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, a remedyof appeal is provided in Sub Section (1) of Section 7 of the Act. https://hcservices.ecourts.gov.in/hcservices/ Inasmuch as 75% of the amount which is determined to be due under Section 7-A of the Act, has to be deposited before the filing of anappeal under Section 7-O of the Act, this petitioner has knocked thedoor of the Court under Section 482 of the Cr.P.C with a view toavoid the aforesaid deposit. Thus the writ was not maintainable.
It is to be noted that while exercising the jurisdictionunder Section 7-A of the Act, the Provident Fund Commissioner has thesame powers vested in a Civil Court in trying a suit as per thedecision of the Hon'ble Supreme Court FOOD CORPORATION OF INDIA V.THE P.F. COMMISSIONER, 1990 (1) SCC 68, in fact the Provident FundAuthorities should invoke the powers as vested in a court under CivilProcedure Code for determining a liability, in the considered opinionof this Court.
As against the orders passed by the authorities dated05.12.2002 and 08.01.2003, the petitioner is having a viable, effective, efficacious and alternative remedy of preferring an appealto a Tribunal as per Section 7-I of the Employees Provident Fund and Miscellaneous Provisions Act 1952. Generally speaking, if a questionis raised in a writ petition which goes to the root of the matter theexistence of an alternative remedy of appeal available under SubSection 1 of the Act will not be a bar for this Court to entertain awrit petition. But in the present case on hand, there appears to besome kind of discrepancy in regard to the amount originally claimedin the first notice dated 05.12.2002 and in the letter notice ofdemand dated 08.01.2003. The said discrepancy possibly arises out offactual disputes/controversies between the parties. If there isfactual controversy/dispute then the writ proceedings cannot be ananswer to solve the same.
Admittedly when the issues involved areboth a factual and a legal one which requires even adducing of oraland documentary evidence as a case may be, then, the option is givento the parties to adduce necessary oral and documentary evidencebefore the authorities concerned and thrash out the issues involvedin a complete and comprehensive manner so as to give a quietus to theissues once and for all and when the petitioner has a viable, effective and alternative remedy of approaching the competentauthorities by way of preferring an appeal as per Section 7-I of the Employees Provident Fund and Miscellaneous Provisions Act 1952 thenit is too premature for the petitioner/Company to approach this Courtunder Article 226 of the Constitution of India praying for adiscretionary relief from the hands of this Court and since thisextraordinary power will have to be exercised sparingly and withcircumspection by this Court, this Court is not inclined to allow thewrit petition but dispose of the same with a direction that thepetitioner shall prefer an appeal before the CompetentAuthority/Tribunal as against the orders dated 05.12.2002 and08.01.2003 passed by the authority in the manner known to lawand seek appropriate remedy thereto, if so advised.
Operative part
Also a Review ofthe order under Section 7-A of the E.P. Funds and M.P. Act 1952 has https://hcservices.ecourts.gov.in/hcservices/ to be filed within 45 days and in the prescribed form. Consideringthe facts and circumstances, the parties are directed to bear theirown costs.8. In the result, the writ petition is disposed of with adirection that the petitioner shall prefer an appeal before thecompetent authorities as against the orders dated 05.12.2002 and08.01.2003 passed by the authority in the manner known to law andseek appropriate remedy thereto, if so advised. Considering thefacts and circumstances, the parties are directed to bear their owncosts. Sd/- Asst. Registrar/True Copy/ Sub. Asst. RegistrarvriTo1. The Assistant Provident Fund Commissioner, Employees Provident Fund Dr.Balasundaram Road, Coimbatore 641 018.2. The Recovery Officer, Employees Provident Fund Organisation, Dr.Balasundarams Road, Coimbatore 641 018.1 cc To Mr.K.Gunasekar, Advocate, SR.10720.1 cc To Mr.S.Vadivel Murugan, Advocate, SR.10430.W.P.No.9151 of 2003 SSK(CO)RVL 01.03.2010
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: In the result, the writ petition is disposed of with adirection that the petitioner shall prefer an appeal before thecompetent authorities as against the orders dated 05
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; Industrial Disputes Act, 1947; theEmployees Provident Funds and Miscellaneous Provisions Act; theEmployees Provident Fund and Miscellaneous Provisions Act, 1952; Code of Criminal Procedure, 1973 — s. 482; E.P. Funds and M.P. Act, 1952.
Which court decided this case, and when?
Madras High Court, on 17 Feb 2010. The bench was M VENUGOPAL.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.