A. THANGAVELU Vs. EPF APPELLATE TRIBUNAL AND OTHERS

JUDGEMENT

(1.) This writ petition has been filed by the petitioner under Article 226 of the Constitution of India with a prayer to issue a writ of certiorarified mandamus by quashing order dated 23.02.2012 passed by the first respondent Appellate Tribunal, in ATA No.605(13) 2011, as the same is illegal, arbitrary and contrary to law and restore the order of the Provident Fund Commissioner directing the respondent no.2, to deposit the provident fund amount due to the petitioner by the third respondent, and with a further direction to release all the attendant benefits together with accrued interest.

(2.) As it appears, that the petitioner was working under the third respondent, since 1970. However, in the year 1986, the lock out having been announced. On 17.02.1988, the lock out was lifted, but the petitioner was not taken back to service till 22.02.1991. Thereafter, the petitioner was in ex-parte domestic enquiry dismissed from service on 16.04.1992, which was refused to be approved by the Industrial Tribunal in A.No.42 of 1992, and the respondent no.3, therein was directed to pay the back wages to the petitioner. The said order of the Industrial Tribunal was challenged in WP.No.17353 of 1995, which was dismissed on 27.06.2003. A Writ Appeal against the same was filed in W.A.No.754 of 2004, having also been dismissed by the Division Bench of this Court on 05.07.2007. Thereafter, Special Leave Petition was filed against the same, before the Apex Court vide SLP(C) No.20789 of 2007, which was disposed of, in terms of the compromise meted out of the Court wherein, it was specifically stated that the entitlement of back-wages, the payment of compensation paid to the petitioner of Rs. 2,62,000/- be treated as back-wages. Accordingly, the aforesaid compensation having been paid which was in the nature of backwages, the petitioner approached respondent no.2/Regional Provident Fund Commissioner, to direct the management to pay the provident fund contribution from 16.09.1992 to 06.07.2007, so as to pay the pension to the petitioner on the basis of his entire service. Such amount of Provident Fund contribution quantify to Rs. 1,35,596.70/- and accordingly, a direction was given to the respondent no.3, to deposit the same. However, the respondent no.3, without complying with the aforesaid order preferred an appeal before the Provident Fund Appellate Tribunal vide appeal No.ATA 605 (13)/2011, in which, the petitioner was not made as a party and as such, without giving any notice to the petitioner, the first respondent/Appellate Tribunal dispose of the same, setting aside the order of the Provident Fund Commissioner indicating therein that since the aforesaid amount was not paid as wages for the duties performed but the compensation awarded under Court settlement, the same does not constitute basic wages and as such employer is not liable to pay the Provident Fund Contribution. Reliance in this regard was placed in the case of Swastik Textile Engineers Pvt Ltd., v. Virjibhai Mavjibjhai Rathod and another(in SLP.No.4336 of 1999) 2007 SCC OnLine Guj 313 .

(3.) The learned counsel appearing for the petitioner, however submits that the aforesaid amount being paid as back wages. Such order of the Appellate Tribunal therefore, is contrary to law that too when the aforesaid order has been passed without giving any opportunity to the petitioner, hence, the same is unsustainable. But, placing reliance on the decision of Gujarat High Court, the learned counsel for the respondents submits that since the aforesaid is not the basic wages as defined under Provident Fund Act but the compensation paid under Provident Fund no liability is attracted to the petitioner.