OSWAL PETROCHEMICALS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Petitioner is aggrieved by an order dated 13th April, 2010 passed by Respondent No.2 assessing the Petitioner to pay a total sum of Rs.43,38,921/- as provident fund contribution towards 43 employees for the period from October, 1999 to January, 2004 and the order of the Employees Provident Fund Appellate Tribunal dated 13th April, 2010 dismissing the appeal of the Petitioner against the order of assessment passed by Respondent No.2.

(2.) LEARNED counsel for the Petitioner contends that since it could not accommodate its 43 employees at Mumbai Unit, they were transferred to its Punjab Unit. However, instead of joining the services at Petitioners Punjab Unit, these 43 employees remained absent from their services without any sanction from the Petitioner and without any justifiable reason. The employees filed a petition before the Industrial Court, Mumbai and during the pendency of the said petition, a full and final settlement was arrived at between the Petitioner and the said employees through the office bearers of their Union, which was also signed by the employees individually. The said settlement was voluntary and employees were free to accept or not accept the same. Despite the settlement arrived at, which clearly stated that there was no further amount payable by the Petitioner to the employees, Respondent No.4 made a complaint to the Provident Fund Commissioner stating that the Petitioner did not deduct the provident fund and pension fund though it was mandatory and thus, the employees had not received the provident fund and pension fund. On the said complaint, notices were issued belatedly on 11th December, 2008 malafidely and an inquiry was conducted. No adequate notice of inquiry was given to the Petitioner and thus, principles of natural justice were violated. The proceedings were fixed for a holiday and rescheduled. It was informed that the matter was fixed for 13th April, 2009. However, further notices were sent intimating the date of hearing to be preponed. Since the Petitioner could not be properly represented, the order directing the Petitioner to deposit the provident fund as stated above was passed. The conduct of Shri A.D. Rajkuwar, Assistant Provident Fund Commissioner was mala fide. It is further contended that since full and final settlement was arrived at, the employees could not have filed the belated complaint and ask for the provident fund. Terms of settlement were very clear and no provident fund liability was due to the Petitioner. Reliance is placed on Manipal Academy of Higher Education v. Provident Fund Commissioner, (2008) 5 SCC 428, B.S.N.L. & Ors. v. M/s Subhash Chandra Kanchan & another, 2006(9) SCALE 217, M/s Bridge and Rools Co. Ltd. v. Union of India and others, AIR 1963 SC 1474, Burmah Shell Oil Storage and Distributing Co. Ltd. v. Regional Provident Fund Commissioner, Delhi, 1981-II L.L.J.86, R.V. Shanbhag v. The Federation of Karnataka Chamber of Commerce and Industries and others, 2002(1) KCCR32, Swastik Textile Engineers Pvt. Ltd. v. Virjibhai Mavjibhai Rathod and another, LIS/GujHC/2007/10428.

(3.) I have heard learned counsel for the parties.