Delhi Sikh Gurudwara Management Committee vs Central Board of Trustees and E.P.F. Appellate Tribunal

J.M. Malik, J.—The Assistant Provident Fund Commissioner vide his order dated 29th June, 2007 determined an amount of Rs. 2,00,00,139/- for the period from 01.01.1996 to 30.11.2006 as payable by petitioner M/s Delhi Sikh Gurudwara Prabandhak Committee in respect of temporary employees engaged on daily wage basis. The petitioner was granted 15 days time to deposit the said amount.

The petitioner preferred an appeal before the Employees Provident Funds Appellate Tribunal. Before the Appellate Court he filed an application for waiver of pre-deposit of 75% of the determined amount u/s 7-O of the Employees Provident Funds & Miscellaneous Provisions Act, 1952. The Appellate Court reduced the said condition of depositing 75% of the determined amount to 40%.

The said condition has been called into question in a writ petition under Articles 226 and 227 of the Constitution of India.

I have heard the counsel for the parties. The learned Counsel for the petitioner vehemently argued that the condition is very harsh particularly when the petitioner has to pay nothing. It was contended that the respondents did not apply mind and infact vitiated the order by simply toeing the lines drawn by PF Enforcement Officer in assessing the PF dues. It was pointed out that the impugned order is non-speaking and does not disclose or identify the number of employees for whom the assessment was being made and again it does not disclose the total amount of salary collectively or individually for each of the beneficiaries involved. In support of his case he has cited an authority reported in Food Corporation of India Vs. Provident Fund Commissioner and Others, wherein, it was held:

The question, in our opinion, is not whether one has failed to produce evidence. The question is whether the Commissioner who is the statutory authority has exercised powers vested in him to collect the relevant evidence before determining the amount payable under the said Act.

It is of importance to remember that the Commissioner while conducting an inquiry u/s 7-A has the same powers as are vested in a court under the CPC for trying a suit. The section reads as follows:

7-A Determination of moneys due from employer - (1) The Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner or any Regional Provident Fund Commissioner may by order determine the amount due from any employer under any provision of this Act (the scheme or the Family Pension Scheme or the Insurance Scheme as the case may be) and for this purpose may conduct such inquiry as he may deem necessary.

(2) The officer conducting the inquiry under Sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a court under the Code of Civil Procedure, 1908, for trying a suit in respect of the following matters, namely :

(a) enforcing the attendance of any person or examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses

and any such inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196 of the Indian Penal Code.

It will be seen from the above provisions that the Commissioner is authorised to enforce attendance in person and also to examine any person on oath. He has the power requiring the discovery and production of documents. This power was given to the Commissioner to decide not abstract questions of law, but only to determine actual concrete differences in payment of contribution and other dues by identifying the workmen. The Commissioner should exercise all his powers to collect all evidence and collate all material before coming to proper conclusion. That is the legal duty of the Commissioner. It would be failure to exercise the jurisdiction particularly when a party to the proceedings requests for summoning evidence from a particular person.

The learned Counsel for the petitioner also submitted that most of the employees had retracted their affidavits. He explained that affidavits of only 41 employees out of 50 are left. The learned Counsel for the petitioner vehemently argued that the order passed by the Assistant Provident Fund Commissioner is erroneous because it presumes without any reason that the applicant establishment was to pay PF dues. Again without any evidence the impugned order alleges that 450 employees have been denied the PF benefits as observed by the PF Enforcement Officers.

On the other hand, counsel for the respondents vehemently argued that it is the petitioner and nobody else who is to carry the ball in proving its case. The onus of proof is upon it. He pointed out that the order passed by the Assistant Provident Fund Commissioner clearly goes to show that at page No. 2, that as many as 84 opportunities were given to the petitioner to lead evidence. Thereafter, Enforcement Officers were deputed for verification of records but the petitioner establishment did not produce the records. Their President Sh. Avtar Singh Hit also pointed out that they do not deduct provident fund from the salaries of temporary Sewadars and Sweepers. Counsel for the petitioner drew my attention towards the following observations made in the impugned order:

A coy of the list made out by the squad of Central Office and the list prepared by the visiting Enforcement Officers from time to time was made available to the establishment. On the other hand the establishment also failed to avail this opportunity and have never filed any counter evidence to show/challenge the authenticity of these lists of the temporary employees at any stage of the hearing.

The establishment had never produced the records before the visiting Enforcement Officers from time to time who were directed to verify the list of employees and other documents received in the office during the course of hearings. This type of behavior of the establishment amounts to show non-cooperation and non-production of records.

The intention of the establishment is indicative of non-cooperation through out the hearings because they had never produced the records for verification. Even the records in respect of regular employees were not produced for verification of the compliance reported by them under the Act.

It must be borne in mind that this Court is not supposed to decide the case on merits. It cannot be said at this stage at which way the wind will blow. It is too early to speak my piece on this matter. The problem has to be discussed down to the ground. At present I have to find out whether the condition imposed by the Appellate Court is on the higher side or on the lower side. After taking into consideration, the rival submissions made by both the parties I find that the condition imposed by EPF Appellate Authority is wee bit on the higher side. In the interests of justice, I reduce the condition from 40% to 25% of the determined amount. The petitioner is hereby granted four weeks time to deposit the said amount with the respondents department.

The writ petition and application accordingly stand disposed of.