MAHESHBHAI G PUVAR Vs. MANAGING DIRECTOR

JUDGEMENT

(1.) AS common question of law and facts arise in all these petitions, they are being disposed of by this common judgment and order.

(2.) SPECIAL Civil Application No. 15691 of 2004 has been preferred by the Petitioner -Gujarat State Road Transport Corporation for an appropriate writ, direction and order quashing and setting aside the impugned communications made by Respondent No. 1 -Regional Provident Fund Commissioner (C and R) dated 15.10.2004 and dated 9.11.2004 and thereby to allow the Petitioner -Corporation to make payment contribution towards Provident Fund contribution at the rate of 10% instead of 12% and further allow the corporation to get the adjustment of the excess amount of Provident Fund Contribution made to the tune of Rs. 54.17 crores in the Provident Fund Trust Account since 1997.

(3.) SHRI Dagli, learned advocate for the Petitioner of Special Civil Application No. 15691 of 2004 has submitted that under Section 6 of the Act, 1952, the Petitioner is liable to deposit their contribution to the Provident Fund at the rate of 10% however considering the proviso of Section 6 and considering the Notification dated 9.4.1997, the Corporation voluntarily passed resolution for deduction of their contribution towards P.F at the rate of 12%. It is submitted that the objection was raised by the audit party, that the Petitioner had been making enhanced contribution at the rate of 12% from 1997 though it had been suffering cash losses and accumulating loss exceeding its entire net worth even prior to 1997 -98 which could have been avoided in view of its weak financial position and has been defaulting in payment of PF dues from August 2003. It is submitted that as per the objection raised by the Auditor Officer, the notification issued by the Central Government enhancing the provident fund contribution to 12% shall not be applicable, to the Petitioner corporation as there is accumulated loss equal to or exceeding its entire net worth and has also suffered cash losses in such financial year and the financial year immediately preceding such financial year. Therefore, it is submitted that considering the fact that corporation had been suffering the cash loss and had accumulated loss exceeding its entire net worth even prior to 1997 -98, and considering the fact that even the corporation was in default in depositing their contribution towards P.F from August 2003, Petitioner approached Respondent No. 1 by submitting that their case falls within the ambit of Clause (III) of Schedule II in view of direction issued by the Ministry of Labour, Government of India, bearing F No. S -35019/1/97 -SS -II dated 9.4.1997 and therefore it was requested to permit the corporation to deposit/pay their contribution towards PF at the rate of 10% as proviso to Section 6 of the Act and the notification enhancing the contribution to be deposited at the rate of 10% would not be applicable to the Petitioner and therefore, it was requested to permit them to deposit their contribution P.F towards 10%. However, by communication dated 15.10.2004 Respondent No. 1 -Regional Provident Fund Commissioner (C and R) directed the Petitioner Corporation to continue to pay the P.F contribution at the rate of 10% instead of 12% by observing that GSRTC has been contributing the P.F at the rate of 12% since 1997 till date and therefore, once the establishment start paying contribution at the enhanced rate, it does not have the option to revert back to the old rate of contribution. Being aggrieved and dissatisfied with the aforesaid communication dated 15.10.2004, the Petitioner Corporation has preferred the present Special Civil Application No. 15691 pf 2004. It is to be noted that having prima facie considered the notification dated 9.4.1997 the learned Single Judge while admitting the present petition has granted the interim relief in terms of para 8(C) allowing the Petitioner Corporation to continue to make P.F. Contribution at the rate of 10% instead of 12% prospectively. It is to be noted that at the time of admission of the petition and considering the facts, the learned advocate for the Petitioner -Corporation fairly conceded that though the financial condition of the Petitioner -corporation is in a pathetic state since long i.e. even prior to issuance of notification dated 9.4.1997, he has instruction not to press for the interim relief retrospectively and press the same only prospectively because even if under mistake the corporation has paid the contribution at the rate of 12%, as a public body, interim relief cannot be pressed with retrospective effect. However, it was submitted that looking to the financial position of the corporation the Petitioner shall be exempted from making contribution at an enhanced rate.