R.K. Goel and Associates vs State of Jammu & Kashmir and Others

S.K. Gupta, J.—A short submission made by the learned counsel appearing for the petitioner is that respondent-3 has issued notice for

recovery of Rs. 12,72,180 as provident fund without conducting an enquiry and affording an opportunity to the employer-petitioner after

representing his case, as contemplated under Sub-section (3) of Section 8-A of the Jammu and Kashmir Employees Provident Fund Act, 1961

(hereinafter referred to as the Provident Fund Act) and, thus, the order dated 21.11.2000 is invalid, bad in law and deserves to be quashed by

issuance of a writ of certiorari.

The case of the petitioner as projected in the petition is that the petitioner-firm is engaged in the executing work of metalling of road. The

petitioner further stated that it is not a regular work, but as and when it is allotted, the employees are engaged in the execution of this specific work

on casual basis. On the completion of work, the employees no wore remain in the employment of the petitioner-firm. The firm, however, has been

contributing provident fund with the respondents. However, a sum of Rs. 7,212 was contributed in the year 1999 for the month of January to

March. It is further contended by the petitioner that the firm is not liable to contribute under the provisions of the Provident Fund Act, as their

establishment does not engage the employees on permanent basis. The engagement of the employees automatically terminates with the completion

of the work and, thus, assailed the legality and validity of the notice for the recovery of provident fund in this writ petition.

The stand taken by the respondents in their detailed objections is that despite various opportunities afforded to the petitioner to explain its

position and produce the record for inspection, the petitioner neither attended the office of respondent-2 nor produced the. documents. The notice

for recovery of the provident fund amounting to Rs. 12,72,180 is strictly in compliance to the provisions of Section 8-A of the Provident Fund Act

and the rules framed thereunder. It is further contended that Mr. Bansi Lal Duggal, Provident Fund Inspector accompanied by Assistant Provident

Commissioner-an Officer authorized by the Government in this behalf-visited the Unit of the petitioner on 5.5.1998. The Manager, however, could

not produce record pertaining to its employees on demand. A notice was issued to the Unit requiring it to produce the record regarding attendance

register, salary register for, the financial year from 1995-96 to 1997-98 in the office of the Assistant Provident Fund Commissioner on 16.5.1998

at 10.00 a.m. It is also stated that the Manager of the Unit, however, provided a list of 20 employees engaged by the firm. This shows that the

petitioner is having an establishment with 20 permanent employees to which provisions of the Provident Fund Act are applicable. The employer is,

thus, under an obligation to deposit the provident fund of its employees regularly. It is also stated by the respondents that when the petitioner did

not respond to the notice issued by the respondents to attend the office and produce the demanded document after affording the reasonable

opportunity of representing its case, respondent-2 issued an assessment notice to the petitioner-unit amounting to Rs. 12,72,180. However, the

non-deposit of the duly determined and assessed amount necessitated the respondents to refer the case to the Collector for recovery as arrears of

land revenue.

I have heard the learned counsel appearing for the respective parties and also perused the record meticulously.

On the scrutiny of the material on record, it is indisputably gatherable that during inspection of the Unit by the Provident Fund Inspector

accompanied by Assistant Provident Fund Commissioner; an officer authorized by the Government in this behalf, the employer did not produce the

record, namely, attendance register, salary register for the financial year 1995-96 to 1997-98. Proprietor/Manager of the Unit was requested to

produce the said record on 16.5.1998 in the office of Respondent-2. It is also disclosed from the record that the Manager of petitioner-unit, M/s

R.K. Goel & Associates, Bari Brahmana, provided a list of its employees, which were twenty in number, working in petitioner's unit at Jammu as

on 5.5.1998, the date of inspection. The list was prepared as per attendance register and salary register. The petitioner, however, neither attended

the office nor produced the requisite record for inspection.

On going through the record produced by the respondents, it is disclosed that another notice was issued to the petitioner on 1.6.1998 for

attending and producing of the record, further followed by notice dated 29.6.1998 and 3.11.1998. But neither the petitioner appeared nor

produced the record. When the petitioner did not avail the opportunity afforded to him to represent his case and produce relevant record

pertaining to its employees, viz., attendance register and salary register, as envisaged u/s 8-A (3), respondent-2 determined the amount due from

the employer and made an assessment order on 3.11.1998 whereunder the amount recoverable from the petitioner-firm as contribution of CP

Fund, administrative charges and damages was assessed at Rs. 12,72,180 and directed the petitioner-firm to deposit the same within the stipulated

period provided thereunder.

The petitioner, therefore, having not availed of the opportunity provided to it by respondent-2 for representation of its case after attending the

office and production of record, the respondents left with no option but to determine the amount and pass the assessment order on the basis of the

list of the employees working in the petitioner's firm as on 5.5.1998 prepared from the attendance register and the salary register, and directed the

petitioner-firm the deposit the same with the respondents. This clearly shows that there was a compliance of the mandatory provisions of Section

8-A (3) of the Provident Fund Act, 1961. The arrears were assessed by the Assistant Provident Fund Commissioner-an authorized Officer by the

Government under the Provident Fund Act. It is also evidenced from the record that action u/s 8-A of the Provident Fund Act was taken by

respondent-2 only after the petitioner-firm was given ample and reasonable opportunity of being heard and to produce the record, which it failed

and the matter was referred to the Collector, Deputy Commissioner, Jammu for the recovery of the arrears of CP Fund etc. in the same manner as

arrears of land revenue. In such circumstances, the petitioner cannot be allowed to take benefit of his own wrong when failed to avail the

opportunity of being heard is provided in terms of Section 8-A of the Provident Fund Act.

Further plea raised by the petitioner that he was astonished to receive a notice of recovery for Rs. 12,72,180 with a direction to deposit the

amount by 19.11.2000 is also not on valid basis and does not bear a ring of truth. As a matter of fact, the petitioner already knew that the

recovery proceedings have been initiated against him, as is clearly borne out from review application dated 17.4.1999 u/s 8-A of the J&K

Employees Provident Fund Act, made to the Assistant Provident Fund Commissioner by the petitioner-firm. This plea, therefore, is also of no avail

to the petitioner being bereft of any substance.

In view of the aforesaid facts and circumstances, I do not find any merit in this petition and is accordingly dismissed.