Writ Petition Appeal on Provident Fund Dues
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blackaleuserWrit Petition Appeal on Provident Fund Dues
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15. The above said order was challenged by the petitioner before the
Appellate Authority and the learned Appellate Authority dismissed the
petitioner‟s plea vide order dated 19th September, 2014 forwarded by letter
dated 22nd September, 2014 and upheld the order of the respondent RPFC.
16. Being aggrieved by the impugned order dated 19 th September, 2014,
the petitioner has approached this Court seeking setting aside of the same.
PLEADINGS
17. The petitioner had filed the instant writ petition on 17th October, 2014
and submitted the below stated arguments:
“..(A) Because the order dated 19.09.2014 forwarded by letter
dt. 22.09.2014 passed by the Ld. Appellate Tribunal as well as
Respondent order dated 22.10.2013 forwarded by letter dt.
29.10.2013 are contrary to the directive of the Hon'ble Supreme
Court of India passed vide Order dated 28.07.2009 in the
matter of Civil Appeal No. 7482 of 2003 titled; Food
Corporation of India Versus Regional Provident Fund
Commissioner & Anr; passed the impugned Order without
examining the definition of 'employee' in the light of the
decision of the Constitution Bench of the Hon'ble Supreme
Court in the case of Steel Authority of India Limited Versus
National Union Waterfront Workers (2001) 7, SCC,1 and
further without considering the aspect of issuance of notice to
the contractors, as required under the decision of the Hon'ble
Supreme Court in the case of Bharat Heavy Electricals Ltd.
Versus ESI Corporation, reported in (2008) 3, SCC, 247.
(B) Because the Ld. Appellate Tribunal and respondent RPFC
passing the impugned Order did not take into account of the
fact that the records of the contractors' laborers could not have
been in the possession of the Petitioner as under Rule 74, 75 of
W.P.(C) 8237/2014 & 17 other connected matters Page 15 of 61
71
the Contract Labour (Regulation) and Abolition Central Rules,
it is only the contractor who has the details of the workmen.
***
(D) Because the Ld. Appellate Tribunal and respondent failed
to appreciate that the record can be only available either with
the Contractor as under Rule 74 and 75 of the Contract Labour
(Regulation) &Abolition Act, 1970, which clearly says that
"Principal employer shall maintain a register of the Contractor
in Form XII and as per Rule 75 every Contractor shall maintain
the record of the employees of Contract Labour or with the
License Authority, who issued the License under Rule 18 and 21
of the CLRA Act to the Contractor to hire the contract labour,
but instead of asking the contractor or the Licensing authority
to produce the record, directed the Petitioner to produce the
record of the year 12/1980 to 01/1988 & 05/1990 to 04/1991
like the Attendance Register at Depot and wrongly illegally
shifted the onus upon the petitioner.
***
(M) BECAUSE the Ld. Appellate Tribunal and Respondent in
spite of the fact that all the contractors did not appear in the
proceedings and despite that identification of the workers had
not been done in accordance with the directions of the Hon'ble
High Court of Punjab &Haryana, arbitrarily completed the
proceeding and passed the impugned Order No. COMP-
l/PB/BTI/12584/8540 DATED 22.10.2013 forwarded by letter
dt. 29.10.2013 , whereby the Ld. Respondent erroneously re-
determined a sum of Rs.46,38,332 / as P.P. dues payable in
respect of Contractors' Employees of FCI, Jalalabad (W), Distt.
Fazilka for the period 12/1980 to 01/1988 &05/1990 to 04/1991
and thereby directed the Petitioner to deposit the said amount
of Rs. 46,38,332 / immediately on the receipt of the Order and
submit copies of Bank Challans duly receipted by the Bank
authorities failing which the action to recover the same under
the Provisions of Section 8B to 8G of the Employees' Provident
Funds & Misc. Provisions Act, 1952 will be initiated after 15
W.P.(C) 8237/2014 & 17 other connected matters Page 16 of 61
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days of the receipt of the Order and the same will be without
prejudice to any other action that may be taken under Statutory
Provisions of Law including the levy of Damages under '
Section 14B and to claim interest under Section 7Q of the Act
on belated payments for which separate orders will be issued to
the Establishment and further that the Establishment will be
liable to pay the escaped amount also, if any, noticed at any
subsequent stage, under the provisions of the Section 70 of the
Act and any of the action as deemed necessary as per Law….”
18. In response to the writ petition, the respondent no. 1, i.e., RPFC filed
its counter affidavit refuting the petitioner‟s case, relevant portion is as
under:
“..viii) That it is often seen that employer/establishment resort
to filing the petition in the Court once the recovery process has
been started, which in any case start after default of the
legitimate dues have been committed by such employer. The
employers file such cases with a view to defeat the object of the
social security legislation, which provides for a lump sum
payment to the employees on their retirement so that they can
spend their retired life with some element of comfort.
ix) That the Hon'ble Supreme Court in the matter RPFC Vs.
Shibu Metal Works, 1964 65(27) FJR 491 upheld that in
construing the material provisions of the Act, if two views are
reasonably possible, the Courts' should prefer the view which
helps the achievement and furtherance of the object. In the
matter of State Vs. Girdhari Lai Bajaj, 1962 II LU 46
([Link]), the Hon'ble Court observed that when there is doubt
about their meaning, it is to be understood in the sense in which
it best harmonizes with the subject of the enactment and the
object which the legislature has in view.
