REGIONAL COMMISSIONER Vs. MAHESHWARI NURSINGH

JUDGEMENT

(1.) This order shall govern disposal of W.P. No. 6635/11 & W.P. No. 3263/12. In both these petitions, by filing I.A. No. 99-and I.A. No. 7182/12 by the respondent, the preliminary issue is raised regarding maintainability of the petition filed by the Regional Provident Fund Commissioner and Employees Provident Fund Organization through its Assistant Commissioner. Issue of maintainability, which is common and required to be answered first, therefore, the question of maintainability is being decided. Both the writ petitions have been filed by the Regional Provident Fund Commissioner and Employees Provident Fund Organization through its Assistant Commissioner invoking the jurisdiction under Article 227 of the Constitution of India for issuance, of the writ and directions to quash the order Annexure-P/1 passed by the Provident Fund Appellate Tribunal in Case Nos. ATA 382(8)/2006 and ATA 30(8)/2006 vide orders dated 14-7-2011 and 8-2-2012. Petitioners being dissatisfied with the orders of the appellate Tribunal, therefore, preferred both these petitions.

(2.) The facts with respect to W.P. No. 6635/11 in brief are that the respondent No. 1 is running a private nursing home in the name of "Maheshwari Nursing Home" through its proprietor Dr. Virendra Maheshwari. The said hospital has been covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for brevity 'the Act 1952') w.e.f. 7-1-2000 with Code No. MP-15057. Subsequently, an inspection was carried out on 7-7-2004 wherein it was alleged that 23 employees were engaged in the respondent-institution w.e.f. 1-5-1993 and the provisions of the Act of 1952 were not complied with in the matter of depositing the employers contribution. After conducting the enquiry under section 7A of the Act, 1952, vide order dated 6-10-2004 an amount of Rs. 12,37,048/- for the period in between 1-5-1993 to 7-1-2000 has been directed to be deposited as EPF contribution.

(3.) It is not in dispute that the said due amount of Rs. 12,37,048/- was deposited prior to passing the order through challans dated 14-8-2004, 13-9-2004 and 15-9-2004. Thereafter, the Assistant Commissioner of Provident Fund has issued a show-cause notice why the damages as provided under section 14-B of the Act, 1952 should not be recovered. Reply to the said notice was submitted by the respondent on 11-5-2011, however, without due consideration to the points raised in the reply, final order was passed on 27-3-2006 imposing the damages and interest as per section 14-B and 7-Q of the Act, 1952 directing recovery of Rs. 15,45,922/-. Against the said order, an appeal was preferred before the appellate tribunal, which was decided by the order impugned on 14-7-2011 and the matter was remanded back to the petitioner to reassess the liabilities inclusive interest at the rate of 22%. Being aggrieved by the said order, this petition has been preferred in the name of Regional Commissioner, Employees Provident Fund through its Assistant Commissioner by filing an affidavit of the Assistant Provident Fund Commissioner. Any authorization by the Employees Provident Fund Organisation either in favour of the Regional Provident Fund Commissioner or in favour of the Assistant Provident Fund Commissioner is neither pleaded nor filed showing any power to challenge aforesaid two orders dated 14-7-2011 and 8-2-2012 passed by the Employees Provident Fund Appellate Tribunal, New Delhi.