SATAYNARAYAN BRICK Vs. UNION OF INDIA

JUDGEMENT

(1.) IDENTICAL facts and points of law being involved in the two cases, those have been heard analogously and are governed by this common judgment.

(2.) THE petitioner No. 1 in W. P. No. 18562 (W) of 2007 is a registered partnership firm and engaged in a business of manufacturing brick. The petitioner nos. 2 to 4 are the partners of the said firm. Such establishment is a small-scale industry and it has the quarry permit. It pays royalty to the Government of west Bengal regularly for quarry of soil. The said establishment does not have any shed and the same is situated in an open field. The nature of industry is seasonal and the activities are purely dependent on weather. A large part of the year particularly the rainy season is spent without any activity. During the peak season, labourers are hired from independent contractors. Workers are mainly cultivators who work for additional income when they are otherwise free. This establishment was established in 1988. A code number was subsequently allotted to the said establishment by the Provident Fund organization being C. A/33187 dated 8th December, 1995. A memo bearing reference No. R-ENF/spl/wb/ca/33187/331 dated 8. 12. 1995 was issued by the respondent No. 3 in favour of petitioner No. 2. There was no mention in it as to whether it was covered as a 'factory' or as an 'establishment' under Section 1 (3) (a) or under Section 1 (3) (b) of the Employees' provident Funds and miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'epf and MP Act' ). The said memo dated 8th December, 1995 purported to cover the establishment as a manufacturer of brick and it was given retrospective effect w. e. f. 30th January, 1989. Such establishment since then had been paying provident fund contributions under the misconception that the said Act is applicable to it. From time td time the Enforcement Officers used to visit the establishment and upon verification of relevant records used to report compliance of the statutory provisions by the establishment.

(3.) IN the year 1999, proceeding under Section 7a of the EPF and MP Act, 1952 was initiated for the period from 12/92 to 01/99 for failure in payment of provident fund dues. Authorized representative of the establishment duly appeared before the respondent No. 4 but since 2002, the respondent authorities maintained a stoic silence in respect of the same. All on a sudden, petitioner No. 2 received a purported notice issued by respondent No. 5 in respect of the said proceedings. By such notice dated 12th February, 2007, intimation was given that the enquiry was last held on 14. 9. 2002 and in order to finalize the enquiry, petitioner No. 2 was summoned to appear in person or through an authorized representative on 22nd March, 2007. The matter was heard by respondent No. 4 on diverse dates. It was submitted that subject-matter of the proceeding was the alleged provident fund dues by the said establishment for the period from February, 1989 to November, 2000 and since the said proceeding was reinitiated after a lapse of more than 18 years, relevant documents have been lost and/or misplaced. The petitioner No. 2 sought for time in order to enable him to collect such document but the prayer was turned down. By an order dated 22nd May, 2007 issued by respondent No. 4, petitioners were directed to pay a sum of Rs. 4,76,621/-along with interest in terms of section 7q of the EPF and MP Act for the provident fund dues for the period february, 1989 to November, 2000.