Unicorn Plywoods(P) Ltd. v. Assistant Provident Fund Commissioner
2016-03-16
SHAJI P.CHALY
body2016
DigiLaw.ai
JUDGMENT : Shaji P. Chaly, J. The above writ petition is filed by the petitioner seeking to quash Exts.P1, P2 and P3 orders under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the "the Act" for short), whereby the 1st respondent has issued assessment order against the petitioner and affirmed in review and dismissed the appeal by the Appellate Tribunal. 2. Brief facts for the disposal of the writ petition are that, the petitioner is a company engaged in the manufacture of plywoods. The petitioner is an establishment covered under the Act, under Code No.KR/16614. It is the case of the petitioner that, it had been regularly paying the provident fund amounts due under the Act. While so, proceedings were initiated under Section 7A of the Act alleging that the petitioner has defaulted payment of various dues for the period from January 2003 to March 2008. Petitioner produced all the relevant documents demanded before the 1st respondent, which was then forwarded to the Enforcement Officer for verification. Petitioner filed counter and resisted the demand contending inter alia that the salary and wages for the years 2003-2004 to 2005 - 2006 is tallying with the Wages Register, Ledger and Balance Sheet and that figures shown as wages for 2006 - 2007 are the gross emoluments paid which included bata, T.A, food, contractor's commission etc. Petitioner has produced statements bifurcating the bata, T.A., food and contractor's commission from the head of wages in the ledger. 3. The 1st respondent has accepted the records produced for the period from 2003-2006. However, for the period from April 2006 to March, 2008, the 1st respondent without adverting to and considering the documents and evidence in the correct perspective ordered payment of an amount of Rs. 2,50,158.50 by Ext.P1 order dated 4.9.2008. It is the contention of the petitioner that Ext.P1 was passed solely relying upon the report of the Enforcement Officer and without any independent application of mind by the 1st respondent. The assessment for the period 2007-2008 was made on the basis of the audited balance sheet for the previous year 2006-2007 on the ground that the audited balance sheet for the year 2007-2008 was not produced. Even the wages taken for assessment deferred from the actual wages as per the audited balance sheet for the year 2006- 2007.
The assessment for the period 2007-2008 was made on the basis of the audited balance sheet for the previous year 2006-2007 on the ground that the audited balance sheet for the year 2007-2008 was not produced. Even the wages taken for assessment deferred from the actual wages as per the audited balance sheet for the year 2006- 2007. In view of the glaring mistake apparent on the face of the record, petitioner filed an application for review under Section 7B of the Act seeking to review Ext.P1 order. Along with the said review petition the petitioner also produced the ledger folio which disclosed that the wages are inclusive of the bata, T.A., food, contractor's commission etc., the audited balance sheet of 2007-2008 which was only obtained on 03.09.2008 and therefore could not be produced earlier and the audited balance sheet for the year 2006-2007. However the 1st respondent by Ext.P2 order dated 21.01.2009 has rejected the review petition. 4. Aggrieved by Exts.P1 and P2 orders, petitioner has preferred the appeal as provided under Section 71 of the Act before the Appellate Tribunal, New Delhi as ATA No.117/2009. However the Appellate Authority without any application of mind and without adverting to or considering any of the documents or contentions raised, dismissed the appeal by Ext.P3 order dated 9.3.2010, is the contention advanced by the petitioner. Pursuant to Ext.P3, the 2nd respondent has initiated recovery proceedings, evident from Ext.P4 dated 2.7.2010. It is thus challenging Exts.P1 to P3 this writ petition is filed by the petitioner. 5. Heard learned counsel for the petitioner and learned counsel for the respondents. 6. Having considered the rival submissions, the question that remains for consideration is whether the impugned orders passed by the respective statutory authorities are suffering from any illegality, impropriety, or irrationality. The thrust of the contention advanced by the petitioner before this court is that the statutory authority while passing Ext.P1 order and Ext.P2 review order has not taken into consideration the entire documents produced by the petitioner before the said authority. That apart it is also contended that the statutory authority has ignored the predominant case put forth by the petitioner while considering wages. The authority has taken into account the payments effected by the petitioner towards the bata, T.A, food concession etc., which is not contemplated under law for calculating wages for the assessment purpose.
That apart it is also contended that the statutory authority has ignored the predominant case put forth by the petitioner while considering wages. The authority has taken into account the payments effected by the petitioner towards the bata, T.A, food concession etc., which is not contemplated under law for calculating wages for the assessment purpose. It is also contended that in order to make the assessment the wages dehors such emoluments alone need to be taken into account and therefore, the orders passed by the authorities without taking into account the said aspect cannot be sustained legally. 7. Having gone through Exts.P1 and P2 orders passed by the 1st respondent, I am of the considered opinion that the entire case put forth by the petitioner was taken into account by the 1st respondent before orders are passed. Therefore, the petitioner is not at liberty to contend that the documents and the case put forth by the petitioner was not considered by the 1st respondent. In Ext.P2 review order also the authority has taken into account the case put forth by the petitioner with respect to the audited balance sheet for 2007- 2008 and has arrived at a finding that the said balance sheet shows considerable reduction in the wages and in the salary for staff compared with the same items of expenditure in the balance sheet for 2006-2007. It was also held that no reduction was noticed in respect of other items of expenditure. The point considered by the 1st respondent is also recited in Ext.P2 review order. In such circumstances, I am of the considered opinion that the 1st respondent has taken into account all the contentions put forth by the petitioner, assimilated the fact situation and applied the law involved in the subject matter and has arrived at a correct finding. 8. So also on a perusal of Ext.P3 order passed by the Tribunal, even though it is short, the point raised by the petitioner giving thrust to the calculation of wages is considered with respect to the period 2007-2008 and has arrived at a conclusion that Exts.P1 and P2 orders passed by the 1st respondent are in accordance with law. On a perusal of the said order also, I do not find any illegality, impropriety or irrationality.
On a perusal of the said order also, I do not find any illegality, impropriety or irrationality. The upshot of the above discussion is that the petitioner is not entitled to get any relief as claimed in the writ petition. I also do not find any reason to interfere with the factual findings rendered by the statutory authority, by invoking the discretionary jurisdiction conferred on this court under Article 226 of the Constitution of India. 9. Resultantly the writ petition fails and the same is dismissed accordingly. 10. As a last submission, learned counsel for the petitioner submitted that the petitioner may be permitted to pay the amount in instalments. This is opposed by the learned counsel for the respondents. However, I am inclined to grant reasonable instalment facility to the petitioner. Accordingly the 50% of the total dues outstanding inclusive of interest if any, shall be paid by the petitioner on or before 30.04.2016 and the balance amount in three equal and successive monthly instalments starting from 30th May, 2016. Needless to say, if any of the said instalments are defaulted, the respondent will be at liberty to recover the amounts in accordance with law. 11. All pending interlocutory applications in this case stand closed.