M/s. Hind Press vs Regional Provident Fund Commissioner and Others

Rajiv Narain Raina, J.—The petitioner was summoned to face proceedings on 07.06.2001 u/s 7-A of the Employees Provident Fund and Miscellaneous Act, 1952 (for short "the Act") by a notice dated 21.05.2001. Before appearing in response to the notice, the petitioner requested the Assistant Provident Fund Commissioner (APFC) by letter dated 02.06.2001 to specify the issues or dispute which they were required to answer since the notice according to the petitioner was vague and did not specifically disclose any ground or reason sufficient to initiate inquiry proceedings u/s 7-A of the Act and to enable the petitioner to respond effectively to it. On 07.06.2001 the petitioner appeared before the APFC and was handed over a list of 25 persons with an oral query whether those persons were enrolled as members of the Employees Provident Fund Scheme or not. The matter was adjourned to 15.06.2001. On 15.06.2001 the petitioner submitted details of the provident fund account numbers of each of the said 25 persons through two lists supplied, one containing the name of 21 persons and the other of 4 persons. It was clearly indicated that from 25 persons, 4 persons whose names figured in the second list were not employees of the petitioner-M/s. Hindi Press but were in fact employees of Hind Samachar Ltd. a sister concern. These four persons were members of the Provident Fund Scheme with respect to Hind Samachar Ltd. The membership numbers assigned by the Employees Provident Fund Organization were duly mentioned. The matter, however remained lingering on pending finalization though the petitioner had impressed upon the Department that facts supplied by it could easily be verified from the records of the respondent-Organization itself. Faced with a road block in decision making by APFC and sensing that the Inquiry Officer was apparently acting with bias in not closing the matter which came to nothing, an application was moved before the Regional Provident Fund Commissioner, Amritsar to transfer the inquiry to some other competent officer who could decide the matter which was simple and self explicit A request was made in writing that further proceedings before the Inquiry Officer till the disposal of the transfer application ought to be stayed. That application was made on 09.07.2001.

The Inquiry Officer who came to know of the filing of the transfer application against him by the petitioner set about in undue haste to render the transfer application infructuous by hurriedly announcing the result of the inquiry against the petitioner. That is how the ex parte order dated 12.07.2001 was passed and communicated to the petitioner. The RPFC, Amritsar faced with the fiat accompli happily proceeded to pass an undated order rejecting the transfer application.

Aggrieved by these proceedings, the petitioner filed an appeal u/s 7(i) of the Act dated 10.09.2001 before the Employees Provident Fund Appellate Tribunal, New Delhi.

When the matter was pending before the Appellate Authority, the petitioner requested APFC, Amritsar on 17.04.2002 to supply copies of calculation sheets etc. in the Section 7-A proceedings to carry in appeal proceedings. There was no response. The petitioner wrote a reminder on 03.05.2002. On 09.05.2002 the request was arbitrarily rejected by the APFC, Amritsar citing that there was no provision under the Act for supply of materials let in, in the course of inquiry. Once a bona fide request for transfer was made it should have been left to be first examined and decided by the superior authority and APFC/inquiry officer should have stayed his hands and not to have proceeded to consign the file to the record room with undue haste.

The Appellate Tribunal rejected the appeal by an order dated 12.01.2010 which to my mind is a supreme example of highhandedness, arbitrariness and casualness with which quasi judicial authorities are sometimes known to exercise. The order is so perverse and cryptic as should not be passed by a quasi-judicial authority and, therefore, it needs reproduction in its entirety:-

Present: Shri Arun Kathpalla, Advocate for appellant.

Shri S.K. Pandey, Advocate for respondent.

This order passed by the EPF authority u/s 7-A of the Act directing the appellant to deposit the dues is challenged in this appeal.

The case of the appellant is that the EPF Commissioner started the proceedings u/s 7-A against the appellant. The appellant appeared before his and submitted the list of total persons for whom he was contributing and list of 4 persons who were not the employee of the appellant but they are the employee of Hind Samachar Ltd. The authority without verifying anything directed the appellant to deposit the dues. The case of the respondent is that the appellant was not depositing the dues and order passed by the authority was legal one.

It is contended that the order of the authority is illegal one and no opportunity was given to the appellant to place his case.

The Ld. Advocate for the respondent supported the order.

It is not disputed that the EPF Act was applicable to the appellant and he is also making the EPF contribution for 21 employees. The order revealed that notice was served on the appellant and enquiry is suffered 4 to 5 adjournments but the appellant failed to cooperate. So the order was passed on the available materials. Annexure-III to A-V contains the name of the employees employed by the appellant. No matter was placed to show that they were not the employee of the appellant. The order also revealed that proper opportunity was provided to the appellant. So there was no breach of principle of natural justice. The order of the authority suffers from no infirmity.

Hence order, the appeal is dismissed. File be consigned to the record room. Copy of the order be sent to both the parties.

Sd/- (Srikanta Nayak) Presiding Officer, EPFAT

It is the specific case of the petitioner in Paragraphs 7 & 8 of the petition which are a pointer to the abject remissness of the 2nd respondent in passing an unconscionable order with respect to 25 persons. Paragraphs 7 & 8 deserve reproduction:-

On 7.6.2001, the Petitioner appeared before the Assistant Provident Fund Commissioner, Amritsar and after much requesting, a list of 25 persons was handed over to the representative of the Petitioner for the first time and they were asked to ascertain whether these 25 persons were enrolled as member of the Employees Provident Fund Scheme or not and the matter was adjourned to 15.6.2001.

On 15.6.2001 the representative of the Petitioner No. 1 appeared and submitted details of the provident fund account numbers of each of the said 25 persons, vide two lists, one containing the names of 21 persons and other of 4 persons. In these lists it was clearly mentioned that out of 25 persons, the names of 4 persons (who figured in the second list) were not the employees of M/s. Hindi Press, but were actually the employees of Hind Samachar Ltd. and they were also members of the Provident Fund Scheme under Hind Samachar Ltd. and their membership numbers were also mentioned. The case was adjourned to 25.6.2001 for the purpose of verifying the lists by the Department. Copies of the lists are annexed herewith as Annexure P-3 (colly).

In the written statement filed in response to notices issued by this Court these paragraphs have been replied to in the following manner. They would also deserve reproduction:-

That the contents of para No. 7 of the petition are admitted

That in reply to para No. 8 of the petition it is submitted that the representative of the establishment appeared on 25.6.2001 and submitted a list of 25 employees but they didn''t mention their Wages, Date of Appointment and Date of Membership. Further a squared of Eos was deputed to verify the list of employees with the records of the establishment and representative of the establishment was also advise to give the full description i.e. Name, Father''s Name, P.F. A/c No. Date of Appointment, Date of Member of the Fund and Wages of individuals and case adjourned to 25.6.2001.

The written statement filed by the Regional Provident Fund Commissioner, Jalandhar before this Court is clearly evasive in its explanation of the decision making process in what is apparently no controversy at all. The 25 persons in two sets of 21 and 4 had numbers assigned by the respondent-Organization under the Scheme who are clearly identified in Annexure P-3 by name, father''s name and the provident fund account numbers of each of them. Annexure P-3 is in two parts; one relating to M/s. Hind Press and the other to the Punjab Kesari, Hind Samachar and Jag Bani all of which are separate establishments for the purposes of the Act. There is not even a whisper in either of the orders or in the written statement with respect to contents of Annexure P-3.

I have heard Mr. Arun Kathpalia, learned counsel for the petitioner and Mr. Rajiv Sharma, learned counsel for respondent Nos. 1 & 2 and have perused the record with their assistance.

Unfortunately a non issue has been made into a voluminous paper book in the hands of this Court only to waste its precious time which could have been diverted for a better cause. The list of persons who are made subject matter of the instant proceedings u/s 7-A of the Act are identifiable and verifiable not just from the records of the petitioner but from the records of the respondents. There appears to have been a calculated effort to subvert justice for over a decade on a matter which does not even require any elaborate or long drawn out argument to appreciate. In the view of this Court, the petitioner has been harassed for far too long by a perverse order deliberately u/s 7-A in abuse of authority and an equally perverse order passed by the appellate authority affirming it by a non speaking order which demonstrates abject apathy and a refusal to apply the mind. I have no hesitation at all in quashing both the impugned orders. I have also little hesitation in awarding costs of Rs. 1 lac on the respondents for lack of probity and for deliberate subversion of justice and the rule of law. It is not enough now for a public authority charged with quasi judicial power on consciously passing a perverse order contrary to facts to their knowledge to say:- "Here is an order do what you want to do with it." The writ petition is allowed. The impugned orders dated 12.07.2001 (P-6) and 12.01.2010 (P-13) are untenable and are therefore quashed. Let the costs of Rs. 1 lac be paid to the petitioner within 30 days from the date of receipt of a certified copy of this order. The Central Provident Fund Commissioner, New Delhi would be at liberty to set his house in order and fasten liability to recover costs from erring official/s if found responsible for misdemeanour and conscious abuse of authority to decide.