BHAIYA INDUSTRIES INDORE Vs. RASHMIKANT R SHAH

JUDGEMENT

(1.) THIS is a petition filed by the petitioner against an order passed by the Regional Provident Fund Commissioner, on 30th January 1982, holding that respondent No. 1 was an employee and, therefore, directing payment of provident fund contribution against the petitioner.

(2.) ACCORDING to the petitioner, when the claim was made before the regional Provident Fund Commissioner, the petitioner challenged the claim made by respondent No. 1 on the ground that he was not a regular employee but was only a commission agent. The Regional Provident Fund Commissioner instituted an enquiry and it was alleged that during that enquiry a certificate signed by one Mr. Gangwani who was a partner of the petitioner firm at one time, was produced showing that the petitioner was appointed on a monthly salary. This certificate was challenged by the petitioner and various questions were raised doubting the genuineness of the said certificate. It was alleged that the certificate was prepared and issued not on the date written on it but subsequently after Mr. Gangwani ceased to be a partner. Under these circumstances, both the parties wanted that this person should be examined and for that purpose a date was fixed on 3rd November 1981. The grievance made by the petitioner in this petition is that before the date which was fixed on 24th October 1981 it appears that Mr. Gangwani appeared before the Regional Provident Fund Commissioner and the Commissioner in the absence of the petitioner without intimating him that he is examining mr. Gangwani put certain question to Mr. Gangwani and made a note of it which appears in the order-sheet dated 24th October 1981 (Annexure R-1)and it is contended that such an enquiry made by the Regional Provident fund Commissioner at the back of the petitioner is illegal and against the principles of natural justice. It was held in that enquiry that the respondent no. 1 was a regular employee of the petitioner and, therefore, the petitioner was liable to make payment of provident fund contribution.

(3.) LEARNED counsel appearing for the Regional Provident Fund Commissioner contended that although it is not disputed that the date fixed was 3rd November 1981 but on 24th October 1981 Mr. Gangwani appeared before the Regional Provident Fund Commissioner and submitted that he was going out and it will not be possible to come on 3rd November 1981. Under these circumstances the Regional Provident Fund Commissioner made the enquiry and made a note of it in the order-sheet dated 24th October 1981. It is not disputed that none of the parties were present on 24th October 1981 when Mr. Gangwani was examined. It was contended by learned counsel for the Regional Provident Fund Commissioner that it was not the only material on the basis of which the order was passed by the Regional Provident Fund Commissioner which was challenged in this petition. Learned counsel for respondent No. 1 contended that although the enquiry was made from Mr. Gangwani on 24th October 1981 when he also was absent but he contended that the enquiry was made, it appears, by the Regional Provident fund Commissioner for his satisfaction only but the matter has been disposed of on affidavits and documentary evidence produced by the parties.