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2012 DIGILAW 1507 (JHR)

Icon Dairy Foods (I) Ltd. v. Employee Provident Fund Organisation, Jamshedpur, East Singhbhum

2012-10-03

APARESH KUMAR SINGH

body2012
ORDER Heard counsel for the parties. 2. The petitioner is aggrieved by the order no. JH/SRO/JSR/JH/JP/5694/2081 dated 14th August 2006 whereby the review petition filed by the petitioner under section 7B of E.P.F. & M.P. Act, 1952 for review of the order dated 20th July 2006 was rejected. The petitioner has also challenged the order no. JH/SRO/JSR/7A/JH/5694/2006/1587 dated 20th July 2006 passed under section 7A of the Act of 1952 whereby the Assistant Provident Fund commissioner, Jamshedpur (Respondent No. 2) has determined the amount of liability of Rs. 3,75,957/- due from the establishment and a sum of Rs. 2,27,660/- under section 7Q of the Act of 1952 and directed the petitioner to pay the same within 15 days from the date of the order. 3. Counsel for the petitioner submits that the petitioner establishment was manufacturer of Ice Creams under an agreement with M/s Kwality Ice Creams Limited, Calcutta on 21st January 1986. This arrangement continued till 1995, whereafter, M/s Kwality Ice Creams Limited made alliance with M/s Brook Bond Lipton India Limited on 2nd June 1995. Consequently, the petitioner signed a deed of cancellation with M/s Kwality Ice Creams Limited, a deed of assignment of marketing assets with Brook Bond Lipton India Limited and a deed of sourcing with Brook Bond Lipton India Limited. This agreement was entered between the respective parties on 6th November 1995. Under the deed of cancellation between the M/s Kwality Ice Creams Limited and the petitioner dated 21st January 1986, manufacturing of ice cream in the brand name of Kwality was cancelled. Further, all rights of marketing, assets and the distribution of the said products, vending licences were transferred in favour of Brook Bond Lipton India Ltd. As per the petitioner, under the sourcing agreement, the petitioner company was permitted to manufacture the Ice cream under the Kwality brand exclusively at the instruction and requirement of Brook Bond Lipton India Limited having no right to market the same. Learned counsel for the petitioner submits that because of such arrangement, the petitioner company did not have any right for marketing of manufactured Ice cream, in terms of earlier agreement with M/s Kwality Ice Creams Limited which led to the petitioner company to withdraw its sales related staff from the field and services of respondent no. 3-Krishna Das @ Kisto Das was terminated on and from 22nd November 1995. 3-Krishna Das @ Kisto Das was terminated on and from 22nd November 1995. This fact was informed to the official respondent in Form-10 that Krishna Das was the permanent employee of the petitioner company having his P.F. Account No. BR-5694-28. Subsequently, it is the case of the petitioner that Brook Bond India Limited engaged M/s Kwality Ice Creams Enterprises to market and distribute its products and the respondent no. 3 was employed by M/s Kwality Ice Creams Enterprises and his salary was paid by Brook Bond India Limited through M/s Kwality Ice Creams Enterprise. Later on, on account of some dispute, the agreement between the Brook Bond India Limited and the petitioner company were cancelled in the year 2000 and the petitioner company thereafter began manufacturing Ice cream in its own brand name. However, the respondent no. 3 remained employee of M/s Kwality Ice Creams Enterprises and the petitioner company have no relationship with the said M/s Kwality Ice Creams Enterprises. The respondent no. 3 was thereafter terminated by his employer for which gratuity was also paid by Life Insurance Corporation. However, he was again appointed by the petitioner company from 01st September 2004 and a new provident fund account was duly obtained by the petitioner company in his name being BRJP-5694-57 with effect from 01.09.2004. 4. On the complaint of the respondent no. 3 before the respondent no. 2, Assistant Provident Fund Commissioner that he was under the services of the petitioner company since 1986 and was made permanent in the year 1990, whereafter contribution towards provident fund was deducted by the petitioner company since 1986, but not paid to him after 1995, proceedings against the petitioner company were initiated in which he appeared and submitted his reply on different dates. However, the impugned order dated 20th July 2006 has been passed under section 7A of the Act of 1952 making the petitioner company liable for the aforesaid amount of Rs. 3,75,957 in respect of the respondent no. 3 and four other persons for the period November 1995 to August 2004. By the same order, the petitioner company has also been saddled with a separate liability of Rs. 2,27,660/- under section 7Q of the Act. 5. 3,75,957 in respect of the respondent no. 3 and four other persons for the period November 1995 to August 2004. By the same order, the petitioner company has also been saddled with a separate liability of Rs. 2,27,660/- under section 7Q of the Act. 5. The petitioner assailed the impugned order passed under sections 7A and 7Q of the Act of 1952 on the ground that the Assistant Provident Fund Commissioner has taken the petitioner company and M/s Kwality Ice Creams Enterprises as one and the same, although there are no evidences to show financial integrity of the two organisation except that mother and wife of the director of the petitioner company was the owner of M/s Kwality Ice Creams Enterprises. Counsel for the petitioner further assails the impugned order dated 20th July 2006 on the basis of the stand that the liability has been assessed contrary to the documents shown as contained in Form-10 (Annexure-4) informing the EPF organisation of the factum of the respondent no. 3 and four others having left the services of the petitioner company. It is further submitted that the complaint of the respondent no. 3 was never served upon the petitioner company in order to rebut the same and apart from the respondent no. 3, no one appeared to allege that the petitioner company failed to deduct the provident fund for the period in question from November 1995 to August 2004. However, by the impugned order, the liability has also been assessed of four other employees who are no where in picture. 6. Counsel for the petitioner also submits that the review application was filed on behalf of the petitioner on 9th August 2006 which is annexed as Annexure-16 to the supplementary affidavit filed in the writ petition taking categorical stand, but the review application was rejected by the impugned order dated 14th August 2006 without meeting the specific grounds raised by the petitioner in his application for review. 7. Counsel for the respondents, on the other hand, submits that the impugned order dated 20th July 2006 has been passed under sections 7A and 7Q of the Act of 1952 after giving adequate opportunity to the petitioner wherein categorical findings have been recorded that the petitioner company was the sister concern of M/s Kwality Ice Creams Enterprises. He further submits that the petitioner had failed to show that since November 1995 the respondent no. He further submits that the petitioner had failed to show that since November 1995 the respondent no. 3 was not on the rolls of the petitioner company. It is further submitted that these arrangements appears to have been made by the petitioner company to escape the liability under the Act of 1952. 8. Counsel for the respondents further submits in respect of the order passed in the review that the grounds taken in the review application have been answered, but the petitioner himself fails to attach the copy of the documents on which it relied in the review application. 9. I have heard learned counsel for the parties at length and gone through the impugned orders and other relevant materials brought on record. The specific grounds on which the petitioner assailed the impugned order are that the complained filed by the respondent no. 3 was never served upon the petitioner before passing the impugned order. Further, the petitioner has also relied upon the documents being Form-10 contained at Annexure-4 to show that the employees shown therein including the respondent no. 3 had left the services on different dates in November 1995 and the same was communicated to the respondent organisation in January 1996 itself. But none of other persons who had left the company had come forward to lodge complaint against the petitioner company for reduction of the provident fund dues. The respondent no. 3 has also not adduced any witness in support of his contention in respect of other employees. The petitioner company being aggrieved by the order passed under section 7A of the Act, invoked the alternative remedy of review under the Act of 1952 by making an application within the prescribed time. The application was made on 9th August 2006 and it has been rejected on 14th August 2006 itself in a cryptic manner which does not show proper application of mind relating to the specific contention made on behalf of the petitioner. The order dated 14th August 2006 records that the copy of the Form-10 relied upon by the petitioner company was not attached with the review application. However, the documents filed under section 10A were already before the original authority who is also supposed to pass the order in review. 10. From perusal of the impugned order passed in review, it appears that the respondent no. However, the documents filed under section 10A were already before the original authority who is also supposed to pass the order in review. 10. From perusal of the impugned order passed in review, it appears that the respondent no. 2 has passed the same in a mechanical manner and without proper application of mind and without discussing the material and adequate and sufficient reasons. Reasons are the soul and heart beat of an order and reflects the mind of the authority passing the order. It enables the higher forum or the appellate authority to appreciate the grounds for rejecting the application of the aggrieved party. Moreover, the aggrieved party is also required to know the specific reasons why his application has been rejected in order to challenge the same before the proper forum or the appellate authority including the writ court exercising powers of judicial review. It is also necessary to reflect transparency in the functioning of administrative and quasi judicial authorities under the Act of 1952. Since the impugned order dated 14th August 2006 fails to address the specific contention of the petitioner and has been passed without assigning adequate reasons on the face of it, it cannot be sustained in law and is accordingly set aside. The matter is remanded back to the Assistant Provident Fund Commissioner, Regional Office, Jamshedpur (Respondent No. 2) to consider the review application of the petitioner in accordance with law and dispose it of as expeditiously as possible and preferably within a period of 12 (twelve) weeks from the date of receipt / production of a copy of this order. The petitioner shall appear before the respondent no. 2 within a period of 15 days with a copy of the order. The petitioner shall cooperate in the early conclusion of the proceeding. This writ application is allowed in the aforesaid terms. It is made clear that any observation made herein-above shall not be treated as a comment on the merits of the case. Application allowed.