SARASWATI CONSTRUCTION COMPANY Vs. CENTRAL BOARD OF TRUSTEES

JUDGEMENT

(1.) By this petition filed under Article 226/227 of the Constitution of India, the petitioner seeks quashing of the order dated 13.11.2006 passed by the EPF Appellate Tribunal and orders dated 12.11.99 and 14.5.2001 passed by the Regional Provident Fund Commissioner, Delhi under Section 7A and 7B of the Employees Provident Fund and Misc. Provisions Act, 1952. The petitioner also seeks directions to direct Regional PF Commissioner, Delhi not to proceed further in the matter of determination of PF dues under Section 7A of the Act till final decision of the present petition.

(2.) Brief facts of the case relevant for deciding the present petition are that on 9.3.89, a two member squad of Enforcement Officers visited the petitioner firm and submitted their enquiry report and on 23.9.92, the respondent department initiated enquiry u/s 7A of the Employees Provident Fund and Misc. Provisions Act, 1952. On 12.11.99, the Regional PF Commissioner, Delhi upheld the coverage as recommended by the squad of the Enforcement officers. Thereafter, the petitioner filed review petition and the Regional PF Commissioner on 14.5.2001 passed an order against the petitioner. Consequently, the petitioner filed an appeal before the EPF Tribunal which vide order dated 13.11.06 dismissed the same. Feeling aggrieved by the aforesaid orders, the petitioner has filed the present petition.

(3.) Mr. S.P. Arora, counsel for the petitioner argued that the enquiry report dated 9.3.1999 submitted by the Officers of P.F. Enforcement is bogus and incorrect as the said officers never visited the establishment of the petitioner. Counsel further submitted that in the inspection report submitted by the Provident Fund Inspectors, the address of the petitioner has been wrongly disclosed as 908, Hemkunt House, 6 Rajendra Place, Delhi where as the correct address of the petitioner is 906, Hemkunt House, 6, Rajendra Place, Delhi. Similarly the petitioner firm has been shown to be a partnership firm comprising of two partners while in fact the petitioner firm is a proprietorship firm under the sole proprietorship of Mr. Lalit Mohan Madhan. Finding further faults with the inspection report, counsel submitted that the enforcement inspectors did not obtain signatures of any employee of the petitioner and had given incorrect strength of the employees then working in the establishment of the petitioner firm besides quoting wrong and inappropriate amount of wages being drawn by such employees. The contention of the counsel for the petitioner was that at no point of time the petitioner establishment had employed 20 employees and therefore, the petitioner could not have been brought under the purview of the said Act w.e.f. 1.8.88. Counsel further submitted that the onus to prove the existence of 20 employees or more was on the respondent, but since the respondent failed to discharge the said onus, therefore, the Tribunal ought to have drawn an adverse inference against the department instead of proceeding against the petitioner. Counsel for the petitioner further submitted that the petitioner was not given any opportunity to crossexamine the said two enforcement inspectors who had submitted their inspection report based on their alleged visit to the petitioner establishment despite specific requests made by the petitioner, and therefore, the impugned orders passed by the Regional Provident Fund Commissioner suffers from patent illegality and perversity besides being arbitrary and in violation of principles of natural justice. Counsel for the petitioner further submitted that it is for the respondent Provident Fund Commissioner to establish the fact of any establishment employing 20 or more persons with their exact identification, period of service etc. and since the respondent failed to prove the same, therefore, the provisions of the said Act could not have been made applicable to the establishment of the petitioner. In support of his arguments, counsel for the petitioner placed reliance on the following judgments:-