DEBI DAYAL SUKHANI Vs. REGIONAL PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed in this Court by one Debi Dayal Sukhani carrying on business under the name and style of M/s Jetmull Bhojraj at Darjeeling for issue of appropriate writs against the notices dated January 29, 1973 and May 2, 1973, by the Regional Provident Fund Commissioner. The Respondents to this petition are (i) Regional Provident Fund Commissioner, West Bengal and Andamans, (ii) Provident Fund Inspector and (iii) Union of India. In the petition the Petitioner has, inter alia, prayed for:

(2.) The material facts are as follows:

(3.) The said partnership firm M/s Jetmull Bhojraj was an establishment to which the Employees' Provident Funds and Family Pension Act, 1952 (XIX of 1952), (hereinafter called the Act) applied and the firm duly paid its contribution as employer to the fund. The case of the Petitioner is that by an indenture dated April 18, 1970, the firm Jetmull Bhojraj was dissolved on and from April 14, 1970 and the assets thereof were partitioned and divided between the existing partners, namely, the Petitioner D.D. Sukhani and P.C. Sukhani. Upon such dissolution the firm Jetmull Bhojraj became proprietorship concern with the Petitioner D.D. Sukhani as karta and manager of the joint family consisting of himself and his sons and grandsons. On June 13, 1970, the firm Jetmull Bhojraj informed the Regional Provident Fund Commissioner, West Bengal, that consequent upon the partition of the firm among the partners the branches at Siliguri Tista Bridge and Kalimpong in the district of Darjeeling have been allotted to Sri P.C. Sukhani, one of the partners, with effect from April 14, 1970, sent a copy of the indenture dated April 18, 1970, to the Regional Provident Fund Commissioner. In the said letter it was pointed out that certain members (covering Code No. W.B. 8174) mentioned in the said letter ceased to be the employees of the firm Jetmull Bhojraj, Darjeeling and the firm was no longer responsible for deduction and payment of their provident fund contribution. It is also stated in that letter that any further correspondence on the subject should be addressed to the Petitioner P.C. Sukhani, c/o. M/s Jetmull Bhojraj, Kalimpong, Darjeeling. Thereafter, on July 1, 1970, a final notice of cessation and discontinuance of the membership was given to the Regional Provident Fund Commissioner by the said firm. In the said letter it was pointed out that on and from April 15, 1970, the firm M/s Jetmull Bhojraj which was registered under the Employees' Provident Funds Act, 1952, ceased to exist upon partition and dissolution of the firm and the provisions of the said Act were not applicable to the said dissolved firm. The Provident Fund Commissioner was requested by the said letter to refund to certain employees named in the said letter the funds which accumulated in their respective names. It was also stated in the said letter that the business of Jetmull Bhojraj was not going to deduct any provident fund contribution from the month of July 1970 nor was it liable to pay their share of contribution. On July 31, 1970, the firm addressed another letter to the Regional Provident Fund Commissioner stating that, in view of the clear legal position in the matter, individual accounts of certain members should be settled. On December 15, 1970, another reminder was given by the firm to the Regional Provident Fund Commissioner. Thereafter, on February 23, 1971, the said firm submitted 13 duly completed signed and attested forms in the name of certain members calling upon the Regional Provident Fund Commissioner to settle the claims as early as possible. On April 16, 1971, the Regional Provident Fund Commissioner requested certain members of the firm to send stamped receipts. Thereafter, 9 stamped receipts were sent and certain payments were made to some of the members. Thereafter, by a letter dated January 29, 1973, the Regional Provident Fund Commissioner informed the firm M/s Jetmull Bhojraj that the firm had actually stopped payment of provident fund dues with effect from July 1970 without informing the office of the Regional Provident Fund Commissioner which was highly irregular. It was stated in the said letter that the establishment of M/s Jetmull Bhojraj was covered with effect from April 30, 1962, as trading and commercial establishment and cannot go out of the scope of the said Act by mere partition of the firm among the partners. It is also stated that it has been ascertained on enquiry that all the employees who have received the refund are still the employees of the establishment. The membership of the employees who have received a payment of provident fund accumulation, are not in any case be deemed to have terminated and they are required to contribute as usual along with other members with effect from July 7, 1970 and the firm was requested to effect full compliance in respect of those employees as well as the other employees of the establishment. On February 17, 1973, the Provident Fund Inspector, West Bengal, requested the firm to comply immediately with the provisions of the Act and the scheme framed thereunder. On March 4, 1970, there was the inspection of the firm M/s Jetmull Bhojraj, Darjeeling and the Inspector's inspection report was submitted on March 14, 1973. The inspection report was followed by a letter dated April 10, 1973, from the Regional Provident Fund Commissioner, West Bengal, calling upon the firm to rectify the defects within 7 days from the date of receipt of the letter. On July 12, 1973, Mr. P.C. Chatterjee, Solicitor for Debi Dayal Sukhani as karta of the Hindu joint family carrying on joint family business under the name and style of Jetmull Bhojraj at Darjeeling, made a demand for justice stating, inter alia, that the notice dated January 29, 1973, followed by the report of the Inspector held on March 14, 1973 and the final letter dated April 10, 1973, from the Regional Provident Fund Commissioner are absolutely void, unconstitutional not maintainable and beyond jurisdiction and the said notices are liable to be revoked and/or cancelled. Thereafter, this petition was filed on July 23, 1973.