OM ENTERPRISE Vs. ASSISTANT PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) IN the present petition, the petitioner who is a labour supply contractor and supplies contract labour in various establishment has challenged order dated 26/5/2006 passed by the Provident Fund Commissioner under Section -7A of the Employees Provident Fund and Misc. Provisions Act, 1952 (hereinafter referred to as 'the Act') whereby the petitioner has been directed to pay Rs. 12,69,289/ - towards provident fund's dues and Rs. 8,50,925/ - towards interest. The petitioner has also challenged an order dated 29/5/2007 passed by the Employees Provident Fund Appellate Tribunal (hereinafter referred to as 'the Tribunal') whereby the appeal filed by present petitioner against the above referred order, has been rejected solely on the ground that the date on which it was filed, the appeal was time barred. Aggrieved by the said two orders, the petitioner is before this Court.

(2.) THE facts leading to the presentation of this petition are in narrow compass. The petitioner has claimed that it is a proprietary concern which undertakes contracts of suppling contract labour to various establishments. It is further claimed that on an allegation that the petitioner had defaulted in making payment towards PF contribution for the period form March -2000 to June -2002, a notice under the provisions of the Act was issued and it was intimated that the inquiry as contemplated under Section -7A will be initiated in respect of the alleged non -payment. The petitioner has alleged that without affording sufficient opportunity of hearing, particularly with regard to the document on which substantial reliance came to be placed by the adjudicating authority, the impugned order came to be passed. The petitioner claims that after the order dated 26/5/2006 was passed, representation was made by the petitioner on 19/6/2006 but the same remained unattended. Subsequently on or around 17/4/2007, the petitioner preferred an appeal before the Appellate Tribunal. The period provided for filing an appeal is of 60 days. The Act confers on the Tribunal power to condone delay to the extent of further 60 days. Differently putting the Tribunal's power to condone delay beyond the period prescribed for filing appeal, is restricted to 60 days. Since the appeal preferred by present petitioner was filed not only beyond the prescribed limit but even beyond the time period which could have been condoned by the Tribunal in exercise of its powers, the Tribunal passed the order dated 17/4/2007 rejecting and returning the appeal on the ground of limitation holding that the same was time barred.

(3.) MR . K. M. Patel, learned Senior Advocate with Mr. J.M. Patel, learned Advocate has appeared for the petitioner and submitted that actually the amount towards contribution has been paid by the petitioner. However, since the petitioner was working, at the relevant time as a Contractor of an undertaking named Dolphin Laboratory, the petitioner was not alloted any separate and independent code number but had to deposit the contribution of its employees under the sub -code of the code number alloted to the Principal Employer i.e. the Dolphin Laboratory. He submitted that due to some inadvertent error either on the part of the principal employer or of the office i.e. the respondent authorities, the amount paid by the petitioner came to be deposited/credited in the account/code number of the principal employer and therefore the accounts of the respondent -authorities reflected non - payment on the part of the petitioner. Consequently the demand notice dated 28/5/2002 came to be issued. Learned Counsel Mr. Patel further submitted that during the proceedings before the Assistant Provident Fund Commissioner, the petitioner had attended the proceedings through his advocate and the proceedings were adjourned for enabling the petitioner to produce relevant record and before the record could be produced, the impugned order came to be passed. Learned Counsel Mr. Patel submitted that the fact remains that the provident fund contribution in respect of its workers has been deposited with the department but the only difficulty is that the amount was deposited in principal employer's account and it is this vital and relevant aspect which was required to be considered by the respondent -authorities. He submitted that if the aforesaid factual aspect is not considered and if the impugned order is not interfered with then the petitioner would be required to pay the amount once over again and he will be subjected to the hardship of making double payment. Learned Counsel Mr. Patel also submitted that although belatedly, the petitioner did prefer an appeal before the Tribunal, however, the same came to be dismissed on the ground of limitation.