HOTEL AIRLINES NO. 4, MADRAS BANK ROAD BANGALORE-560001 REP. BY ITS PROPRIETOR SRI. S DIWAKAR RAO Vs. ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION - 13, RAJARAM MOHAN ROY ROAD BANGALORE-560025 AND THE PRESIDENT KA

JUDGEMENT

(1.) EMPLOYER aggrieved by order dt. 28.2.2007 Annexure -A of the Asst. Provident Fund Commissioner directing it to remit provident fund contribution in respect of eight employees represented by 2nd respondent -Trade Union with effect from the dates mentioned, questioned the same in an appeal A.T.A. No, 208(6)/2007 before the Provident Fund Appellate Tribunal, New Delhi, which when confirmed by order dt. 10.5.201] dismissing the appeal, has presented this petition.

(2.) HAVING heard the learned counsel for the parties, perused the pleading and examined the order impugned, undoubtedly the order Annexure -A of the Asst. Provident Fund Commissioner suffers from an error apparent on the face of the record. I say so because the said Authority did not hold an enquiry as contemplated by Section 7 -A(2) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19/1952) and in compliance of the observations of the Supreme Court in Food Corporation of India Vs. Provident Fund Commissioner and Others, JT (1989) 4 SC 380 wherein it is held that mere production of records by the 2nd respondent -trade union in support of the ease tor payment of contribution in respect of 8 employees ipso facto cannot be considered as admissible evidence over the contents of the said documents. The documents when produced required proof of its contents by examination of witnesses who were required to be tendered for cross -examination by the employer. Such is not a procedure adopted by the Asst. Provident. Fund Commissioner and therefore, conclusion arrived at on the basis of the documents produced by the 2nd respondent -trade union stating that 8 of the workmen were employees under the petitioner from the dates mentioned in the order, is by adopting a perverse procedure.

(3.) KEEPING in mind the opinion of the Apex Court in Food Corporation of India's case (supra) and the procedure in law, in the adjudication of the dispute between the parties, it cannot but be said that the order Annexure -A of the Asst. Provident: Fund Commissioner is illegal and unsustainable. As a consequence, the order of the Appellate Tribunal without making reference to the law or procedure required to be followed by the Asst. Provident Fund Commissioner is unsustainable too.