The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Ministry of Labour, Government of v. M/s Bravo Security Services Pvt. Ltd., M-11
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 6387 of 2016 The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Ministry of Labour, Government of India, Sub Regional Office at Purlia Highway, Mango, Jamshedpur, PO-Azad Nagar, PS-Mango, District East Singhbhum through Manoj Kumar Mishra, Asst. P.F. Commissioner, Sub- Regional Office, Jamshedpur, PO-Azad Nagar, PS-Mango, District East Singhbhum Petitioner … … Versus M/s Bravo Security Services Pvt. Ltd., M-11(old) Housing Colony, Adityapur, Jamshedpur, P.O. & P.S. Adityapur, District Saraikela-Kharsawan (Jharkhand) … … Respondent CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondent --- : Mr. P.A.S. Pati, Advocate : Mr. Manoj Tandon, Advocate : Mr. Siddharth Ranjan, Advocate : Ms. Neha Bhardwaj, Advocate --- 17/16th October 2024 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs: - “for issuance of appropriate Writ or a writ in the nature of certiorari or any other appropriate writ/order/direction quashing the, final order dated 23.3.2011 passed by Shri Srikant Nayak, Presiding Officer, Employees Provident Fund Appellate Tribunal, New Delhi (EPFAT) in Α.Τ.Α. No.717(8)/2009, whereby and whereunder the learned Tribunal has been pleased to allow the said appeal, without considering the finding of fact recorded by the petitioner, whereby he had come to a finding the employer had prepared fake salary register to evade the grant of membership under the Provident Funds Scheme and thereby causing major injustice to the several hundred workmen, who are actually being paid less than Rs. 6500/-. And/Or of issuance appropriate For writ(s)/order(s)/direction(s), as Your Lordships may deem fit and proper, for doing conscionable justice to the petitioner.” other such 1 Arguments of the petitioner 3.
Legal Reasoning
The learned counsel for the petitioner while giving the background of the case has submitted that a complaint was received by the petitioner as contained in Annexure-1; pursuant to such complaint, inspection was conducted and during inspection it was found that certain employees were engaged by the establishment but their PF Contribution was not being paid. He submits that upon verification of records, it was found that there was mismatch in the documents which were produced by the establishment and the quantum of salary/wages shown in the balance sheet could not be supported with the records. The report was dated 19.03.2007. There was another report dated 09.06.2006 (Annexure-2) with regard to examination of balance sheet for three years with reference to statutory returns under the Income Tax Department. 4. The learned counsel submits that thereafter a proceeding was initiated under Section 7A of the Employee’s Provident Fund and Miscellaneous Provisions Act, 1952 for determination of dues for the period from April 2003 to March 2007. In course of proceeding, the establishment submitted a list of 101 employees who according to them were excluded employees by virtue of getting salary @ more than Rs. 6,500/-. The enquiry under Section 7A of the aforesaid Act of 1952 was closed and order dated 24.03.2008 was passed, whereby an amount of Rs. 28,78,215/- was assessed and Rs. 12,51,990/- was levied as penal interest. 5. The learned counsel for the petitioner submits that the establishment challenged the order dated 24.03.2008 before this Court in W.P. (C) No. 1914/2009 and this Court observed that the dues was determined on the basis of certain reports of the departmental representatives whose copies were not served upon the petitioner and consequently the order passed under Section 7A was set-aside and the matter was remanded for fresh determination. He submits that upon fresh determination, the establishment was directed to submit the documents and after granting due opportunity of hearing, the fresh order dated 20.07.2009 (Annexure-5) was passed and the dues were quantified in the same manner as was done in the previous order dated 24.03.2008. 2 6. The learned counsel submits that essentially the issue revolved around grant of benefit under the aforesaid Act of 1952 to those employees who according to the establishment were getting salary more than Rs. 6,500/- per month. He submits that such claim was falsified in view of the fact that in spite of repeated opportunities, the quarterly returns of income tax showing deposit of tax deducted at source of such employees with the Income Tax Department were not produced by the establishment although the establishment was required to keep all the records regarding income tax for a minimum period of 7 years and on that basis, a conclusion was drawn that either the explanation of establishment with regard to payment of salary was incorrect or they had prepared fake salary register to evade grant of membership under the Provident Fund Scheme. He submits that the establishment failed to satisfy the authority with regard to their claim that they were paying salary to 101 employees more than Rs. 6,500/- per month. 7. The learned counsel submits that the said fresh order dated 20.07.2009 (Annexure-5) was challenged by the respondent-employee before the learned Tribunal and the learned Tribunal has passed a non-speaking order by observing that in this case, salary register, income tax return and balance sheet revealed that such persons were receiving wages more than Rs. 6,500/-, so the assessment of such persons would not termed legal and has set-aside the order passed under Section 7A of the aforesaid Act of 1952. The order passed by the learned Tribunal is under challenge in this writ proceedings. 8. The learned counsel submits that the impugned order passed by the learned Tribunal is non-speaking and therefore the same cannot be sustained in the eyes of law. The order passed under section 7A of the aforesaid Act of 1952 is a well-reasoned order taking into consideration the documents produced/not produced by the establishment. 9.
Legal Reasoning
The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2010) 4 SCC 785 (Asst. Commissioner, vs. Shukla & Brothers) paragraph 24, 25 and 30 and also the judgment passed by the Hon’ble Supreme Court in the case of State Project Director, UP vs. Saroj Maurya & Others passed in Civil Appeal No. 3465/2023 paragraph Nos. 3 and 3 5 and has submitted that the authority including the Tribunal are required to pass speaking order and therefore the impugned order passed by the learned Tribunal calls for interference. Arguments of the respondent 10. Learned counsel appearing on behalf of the respondent-establishment has
Decision
opposed the prayer and has submitted that the writ petition has been filed after delay of 5 years from the date of the impugned order and it suffers from unexplained delay and latches. 11. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2014) 4 SCC 108 (Chennai Metropolitan Water Supply and Sewerage Board vs T.T. Murali Babu) paragraph 16 and 17 to submit that it is not open to any party to approach this Court at their sweet will and there being no explanation for delay of 5 years in approaching this Court, the writ petition is fit to be dismissed solely on the ground of delay and latches on the part of the petitioner. 12. The learned counsel has also submitted that without prejudice to the plea of delay, the petitioner is not entitled for any relief under Article 226 of the Constitution of India wherein the petitioner is seeking a relief of certiorari and the Hon’ble Supreme Court in the judgment reported in (2003) 6 SCC 675 (Surya Dev Rai vs Ram Chander Rai & Ors) paragraph 10, 38(4) and 38(5) has explained the circumstances where a writ of certiorari can be issued. He submits that this Court is essentially exercising supervisory jurisdiction over the learned Tribunal and no such ground has been made out by the petitioner in the writ petition or during the course of hearing to entitle the petitioner to a writ of certiorari. 13. The learned counsel has further submitted that the length of the order will not decide as to whether it is a speaking order or non-speaking order. The learned Tribunal has considered the applicability of the Act of 1952 and has observed that the persons whose salary was more than 6,500/- in terms of the salary register, income tax return and balance sheet were required to be excluded and therefore their assessment cannot be termed as legal. The learned counsel submits that no adverse inference could have been drawn against the 4 establishment merely because certain documents relating to income tax were not produced. There were sufficient documents to substantiate that there were number of employees who were drawing salary more than Rs. 6,500/- per month. He has also submitted that the learned Tribunal has passed a speaking order and the same does not call for any interference. 14. During the course of hearing, the learned counsel appearing on behalf of the parties have also referred to the documents which have been produced by the petitioner from the office of Assistant Provident Fund Commissioner who has determined the dues under Section 7A of the Act of 1952. Rejoinder argument of the Petitioner 15. In response, the learned counsel for the petitioner has referred to the judgment passed by the Hon’ble Supreme Court reported in (1998) 2 SCC 242 (Hindustan Times Ltd. vs. UOI vs. Ors.) paragraph 20, 21 and 22 to submit that principles of delay and latches will not apply in beneficial legislation as money is held in trust by the employer. He submits that in the present case, the writ petition may not be dismissed on the ground that the petitioner has challenged the order passed by the learned Tribunal after a period of 5 years. Further argument of the respondent 16. In response to the aforesaid judgment cited by the petitioner reported in (1998) 2 SCC 242 (supra) on the point of delay and latches in challenging the impugned order of the Tribunal , the learned counsel for the respondent- establishment has submitted that the said judgement was is in relation to raising of demand arising out of order of damages under Section 14B of the Act of 1952 from the establishment and the same has no bearing in the matter of challenge to the order passed by the Tribunal in writ jurisdiction. He submits that there is unexplained delay and latches in challenging the order of the Tribunal. Findings of this Court 17. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, the aforesaid sequence of events as has been narrated by the learned counsel for the petitioner is not in dispute. 5 18. This Court finds that during the course of inspection pursuant to a complaint certain documents were produced by the establishment and the authority noted that the Director could not provide the records reflecting the quantum of salary/wages shown in the balance sheet and there were certain mismatch. However, a proceeding was drawn under Section 7A of the Act of 1952 and it was claimed by the establishment that 101 employees were the persons who were drawing salary more than Rs. 6,500/- per month and they fell in the excluded category. The authority had rejected the plea of establishment and recorded a finding that all such employees were required to be enrolled as PF members and contribution and allied dues be charged @ Rs. 6,500/- per month and calculations were made. 19. The said order was challenged before this Court in W.P. (C) No. 1914/2009 and the order was set-aside on the ground that the same was passed on the basis of reports of departmental representative without furnishing a copy of the same to the petitioner and the matter was remanded for fresh consideration vide order dated 06.01.2009. Thereafter, a fresh order has been passed vide Annexure-5 dated 20.07.2009. It appears from the fresh order dated 20.07.2009 (Annexure-5) itself that after the order of remand, the establishment was asked to submit appointment letters in respect of all excluded category of employees and copies of Form-16 issued to such employees, TDS (tax deducted from source) from salary sent to the Income Tax Department year wise, payment registers/salary statement for the notice period, copy of agreement/work order of the parties where they were deployed. On 16.02.2009, the establishment requested for supply of the reports submitted by the enforcement officer / departmental representative which were made available to them. The establishment appeared and produced salary register of excluded employees for the period 01/03 to 06/04 and 01/05 to 06/06, balance sheet for the period 03-04 and 04-05 along with income tax returns. Later on, the establishment submitted a petition dated 19.05.2009 and the department representative was directed to go through the petition and submit his comments and report. On 09.06.2009, the departmental representative submitted his report and a copy of the same was sent to the establishment to which the 6 establishment responded on 23.06.2009. The authority observed that as per the wage register, the excluded employees were drawing more than Rs. 6,500/- per month and the salary of the excluded employees were always more than rupees one lakh and above in every financial years for which the employer was liable to deduct Income Tax at source (TDS) from the salary and deposit it with the Income Tax Department, followed by submission of prescribed returned. The quarterly returns were not produced by the establishment by stating that they were 6 to 7 years old and such plea was rejected on the ground that as per the provisions of Income Tax Act, they were supposed to maintain the records for a minimum period of 7 years. While passing the order under section 7A of the aforesaid Act of 1952, the authority had drawn adverse conclusion against the establishment on the ground of non-production of documents relating to Income Tax Department and observed that the establishment had prepared fake salary register to evade grant of membership under the Provident Fund Scheme and ultimately repeated the order dated 24.03.2008 which was filed under Section 7A of the Act of 1952. 20. The records of the Assistant Provident Fund Commissioner has been called for by this Court and the report dated 09.06.2009 (Annexure-2) has been perused which reveals that as per the salary register a number of employees were drawing salary more than Rs. 6,500/- per month. This has also been recorded in the order dated 20.07.2009 (Annexure-5) passed under section 7A of the Act of 1952, the order impugned before the learned tribunal. 21. This Court also finds that a large number of documents were produced by the establishment before the authority including audited balance sheet, income tax returns and other documents which the establishment is bound to maintain as per different statutes. This Court finds that the Assistant Provident Fund Commissioner has rejected the claim of the petitioner that 101 employees were drawing salary more than Rs. 6,500/- per month on the ground that the documents relating to income tax were not filed to show that the establishment could not produce documents relating to deposit of TDS by the employees with the income tax department as the salary of the employees drawing more than 7 Rs.6500/- per month ought to have been subjected to deduction of tax at source while paying their salary. 22. It is not in dispute that employees who have salary more than Rs.6500/- per month fall under excluded category and such employees are not covered under the Act of 1952. 23. This Court finds that the the order dated 20.07.2009 (Annexure-5) rejecting the claim of the establishment having 101 excluded employees was challenged before the learned Tribunal and the learned Tribunal has recorded that there were documents to show that the employees were drawing more than Rs. 6,500/- per month and has referred to salary register, income tax return and balance sheet which revealed that they were drawing salary more than Rs. 6,500/- per month and was of the view that the assessment of such persons could not be termed as “legal”. 24. This Court is of the considered view that the learned Tribunal has taken a view on the basis of materials available on record and has referred to the income tax return and balance sheet which are maintained by the establishment by virtue of the obligations under various statutes. This Court is of the view that merely because quarterly returns and other documents relating to TDS were not filed, the same could not have been a reason to reject the other documents which were produced by the establishment including the audited balance sheet and income tax returns. 25. This Court finds that though the impugned order passed by the learned Tribunal is a short order, but certainly it is based on the documents produced by the establishment and the learned tribunal has taken a view which cannot be termed as perverse or illegal in any manner. The documents which have been referred by the learned Tribunal while passing the impugned order are also found in the records produced by the petitioner. 26. Considering the totality of the facts and circumstances, the impugned order passed by the learned Tribunal does not call for any interference under Article 226 of the Constitution of India. 27. The fact remains that the writ petition has been filed after expiry of 5 years from the date of passing of the impugned order passed by the learned 8 Tribunal and in the entire writ petition, there is no explanation on the part of the petitioner for such delay. In the judgment passed by the Hon’ble Supreme Court reported in (2014) 4 SCC 108 (supra), the Hon’ble Supreme Court has observed in paragraph 16 and 17 that delay and latches should not be lightly brushed aside and it requires due consideration. The said paragraphs are quoted as under:- it that “16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in is exercising an extraordinary and equitable mind jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but, in most circumstances, inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinise whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent employee being absolutely careless the to his duty and nurturing a responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons — who compete with “Kumbhakarna” or for that matter “Rip Van Winkle”. In our considered opinion, such delay does not deserve any indulgence and on the said ground lackadaisical attitude to 9 alone the writ court should have thrown the petition overboard at the very threshold.” 28. So far as the judgment which has been relied upon by the petitioner in the case of Hindustan Times Ltd. (Supra) to submit that there is no limitation in exercising power by the authorities under the aforesaid Act of 1952 is concerned, the same has no applicability when it comes to explanation of delay and latches by the authorities in challenging the quasi-judicial/ judicial orders passed by the competent authorities under the Act of 1952. The said judgment relates to action which could be taken by the authorities under the Act of 1952 for realization of its dues from the establishment/employer and the said judgment has got no bearing in the matter of delay and latches with respect to the petitioner to challenge an order passed by the learned Tribunal in a writ jurisdiction. However, the case has been decided on merits keeping in mind that the ultimate beneficiaries of the dues under the aforesaid Act of 1952 are the employees who certainly cannot suffer on account of delay and latches of the authorities under the aforesaid Act of 1952. No further observation is required except that there is no explanation in the writ petition explaining as to why the writ petition was filed after expiry of 5 years from the date of the impugned order. The impugned order is dated 23.03.2011 and the writ petition was filed on 28.10.2016. 29. 30. Pending I.A., if any, is closed. In view of the aforesaid findings, this writ petition is dismissed. Mukul (Anubha Rawat Choudhary, J.) 10