Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 920 (GUJ)

Mustan Taherbhai v. State of Gujarat

2016-04-28

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. In this petition, the petitioner has prayed, inter alia, that:- "8(B) Your Lordships will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the order dated 04/07/2011 passed in review application as well as order dated 16/03/2011 passed in ATA No. 650(5)/2007 by the respondent No. 2. (c) Your Lordships will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 24/08/2006 passed by the respondent No. 3 authority under Section 7A of the Act." 2. Though the petitioner has challenged the order dated 4.7.2011, passed in Review Application, actually and in substance and essentially, the petitioner is aggrieved by order dated 16.3.2011 passed by the learned Tribunal in ATA No. 650(5)/2007. 3. So as to consider and appreciate the grievance of the petitioner, it is necessary to take into account the factual back-ground. 4. The petitioner is engaged in activity of ship breaking and it is a proprietary concern having its establishment at Jamnagar. It has also emerged from the record that para-26 of the Provident Fund Scheme framed under the provisions of Employees Provident Fund Misc. Provisions, Act, 1952 was amended somewhere in the year 1990. 4.1 By virtue of the said amendment, the provisions of the Act applicable to the establishment of the Ship Breaking Industries also. 4.2 The said amendment was challenged before the Hon'ble Apex Court. The Apex Court decided the issue in the case of J.P. Tobacco Products vs. Union of India vide judgment dated 17.4.1995. 4.3 It is the case of the petitioner that after the said judgment its obligation to comply the provisions under the Act was clarified and determined and therefore, the petitioner started compliance of provisions under the Act with effect from 1.5.1995 i.e. after the decision by Apex Court. 4.4 It appears that according to the department, the applicability of the amended provision would commence with effect from 1989, and therefore, the department had raised the demand against the petitioner for payment of Provident Fund contribution with effect from 1989. 4.5 Thus, the dispute raised in this petition is confined to the period from 1989 to 1995. 4.4 It appears that according to the department, the applicability of the amended provision would commence with effect from 1989, and therefore, the department had raised the demand against the petitioner for payment of Provident Fund contribution with effect from 1989. 4.5 Thus, the dispute raised in this petition is confined to the period from 1989 to 1995. 4.6 So far as present petitioner is concerned there is no dispute with regard to the compliance from 1.5.1995 onwards. 5. When the department/respondent raised demand against the petitioner for payment of dues of provident fund for the period from 1989 to 1995 the petitioner relied on the circular/notification by the Employee's Provident Fund Organization (Central Office) dated 28.6.1995 and contended that any final decision with regard to the liability for payment of contribution for the past period i.e. for the period prior to 17.4.1995 is not taken by the Provident Fund Organization and that therefore the demand raised by the respondent No. 3 is unjustified and premature. 6. In view of such reply by the petitioner, the respondent No. 3 initiated proceedings under Section 7A of the Act and by virtue of the order dated 24.8.2006, rejected the case/defence of the petitioner and quantified the amount payable by the petitioner. 6.1 The respondent No. 3 reached to the conclusion that the petitioner is obliged to pay Rs. 3,48,770/- towards contribution payable under the Act. 7. Being aggrieved by the said order dated 24.8.2006 the petitioner filed appeal before learned Tribunal and contended that since the Provident Fund Organization itself has not determined the issue related to the arrears for the period prior to 1.5.1995, the demand by the respondent No. 3 is unjustified. 8. The learned Tribunal considered the contention by the petitioner and the department and rejected the petitioner's appeal vide order dated 16.3.2011. 8.1 Thereafter the petitioner filed Review Application before learned Tribunal. Learned Tribunal rejected the application as well vide order dated 4.7.2011 on the ground that any new material is not placed for consideration and therefore there was no justification to review and recall the order. 8.2 Feeling aggrieved by the said orders the petitioner has taken out present petition. 9. I have heard learned advocate for the petitioner and learned advocate for the respondent No. 3 and I have also considered the material on record including the impugned orders. 10. 8.2 Feeling aggrieved by the said orders the petitioner has taken out present petition. 9. I have heard learned advocate for the petitioner and learned advocate for the respondent No. 3 and I have also considered the material on record including the impugned orders. 10. Learned advocate for the petitioner referred to the notification dated 28.6.1995 more particularly paragraph No. 4 of the said notification and contended that the demand by the respondent No. 3 is unjustified and in any case it is premature. He also submitted that since the issue with regard to claim for arrears (past period) is not decided by the competent authority of the organization, in absence of such decision the respondent No. 3 could not have raised any demand. 10.1 Any other contention is not raised. 11. So far as the order dated 16.3.2011 by the learned Tribunal is concerned it is relevant to note that the learned Tribunal has held inter alia, that: "6. The applicability of the EPF Act to the appellant establishment is not disputed. Section 2(1) defined the word employee as follows: 2(f) employee means any kind of work. Manual or otherwise, in or in connection with the work of fan establishment and who gets his wages directly or indirectly from the employer. And includes any person. (i) employed by or through a contractor in or in connection with the work of the establishment. (ii) engaged as an apprentice, not being an apprentice engaged under the Apprentice Act, 1961 (52 of 1961) or under the standing orders of the establishment: The perusal of the definition make it clear that as per the EPF Act there is no distinction made between a temporary and a permanent employee. Moreover, the persons were engaged regularly by the appellant so they cannot be treated as casual employees. In the case of M/s. Swamti G.V.V. Vs. Regional PF Commissioner reported in 1987 LIC page 719 the Hon'ble High Court of Andhra Pradesh held that, where the establishment employees even temporary as a part of the regular feature of the employment such employment cannot be considered as casual employment and they cannot be excluded from considering in determine the total member of workers working in the establishment also. In the case of Railway Employees Corporative Bank Society Ltd. Vs. Union of India reported in 1980 LIC page 1212, the Hon'ble High Court of Rajasthan held that. In the case of Railway Employees Corporative Bank Society Ltd. Vs. Union of India reported in 1980 LIC page 1212, the Hon'ble High Court of Rajasthan held that. This wider definition of employee in our opinion embraces the part time employee as also the employee. 7. It is not disputed that the validity of the amendment of para 26 was upheld by the Hon'ble Supreme Court in the year 1995. The litigation was started against the amendment. A person cannot be allowed to take advantage of his own Act. In the case of M/s. Gram Sewa Samiti Vs. Regional PF Commissioner reported in 1997 Vol. it Ltd. at para 1202 the Hon'ble High Court of Madhya Pradesh held that employer beneficially disputing the applicability of the Act is not absolved of his liability to pay the contribution and subsequently admitted for the default. 8. It is contended that according to the circular the appellant is not liable to pay the dues. The Circular No. 12/Misc/91E1 date 28.6.1995 shows that the realization of past dues was under consideration so the circular clearly shows that no waiver was allowed with regard to the past dues. 9. Thus in view of the discussion held above, no infirmity is noticed in the order of the EPF authority. Hence ordered, the appeal is dismissed. Copy of order be sent to the parties and the file be consigned to record room." (emphasis supplied) 12. So far as the conclusion recorded by the respondent No. 3 and learned Tribunal with regard to the factual aspect is concerned, actually any dispute with regard to the said factual aspect is not raised during hearing of this petition. 13. Even otherwise, this Court would not sit in appeal over the finding of fact recorded by the first adjudicating authority i.e. respondent No. 3, more particularly when the said findings of fact is re-appreciated and re-analyzed by the learned tribunal while hearing statutory appeal. 14. When concurrent findings of the fact by the statutory authority and by the learned Tribunal are recorded, this Court would not sit in appeal over such findings of fact and would not enter into proceedings of re-appreciation of the evidence. Under the circumstances this Court would proceed in present case by taking into account the findings of fact as correct and justified. 15. Under the circumstances this Court would proceed in present case by taking into account the findings of fact as correct and justified. 15. It is noticed from the record that the learned Tribunal has recorded/confirmed the findings of fact that:- "there is no distinction made between a temporary and a permanent employee. Moreover, the persons were engaged regularly by the appellant so they cannot be treated as casual employee". 15.1 Learned tribunal has also recorded that even the part time employees are covered within the definition of the term "employee" under the Act. 15.2 Further, the validity of the amendment is upheld by Apex Court and the petitioner has also started compliance w.e.f. 1.5.1995. Thus, so far as the issue related to temporary/permanent employee is concerned it does not survive. 16. Therefore, also there is no justification to interfere with or disturb the said findings of fact. 17. The limited issue which arises for consideration is with regard to the petitioner's claim for payment of contribution for the period from 1989 to 1995. 18. The amendment in paragraph No. 26 of the scheme was introduced in 1990. 18.1 By virtue of the amendment provision of the Act is made applicable to the establishment similar to the petitioner's establishment. 18.2 It is also not in dispute that the amendment in question was subject matter of dispute which came to be finally decided by Hon'ble Apex Court vide judgment dated 17.4.1995. 18.3 By the said judgment Hon'ble Apex Court upheld the amendment. In absence of decision and direction by Hon'ble Apex Court that the amendment would be applicable from the date of the decision by the Hon'ble Apex Court, and in absence of any provision in the amendment that it would be applicable from any future date (as has been done in case of amendment in Section 2(j) of Industrial Disputes Act, 1947) the provision introduced by way of amendment would be enforcible from the effective date mentioned by the legislature for the purpose of enforcement of the amendment. 19. In this backdrop the dispute as regards claim for contribution for period from the effective date of the amendment until 1.5.1995 is raised. 19. In this backdrop the dispute as regards claim for contribution for period from the effective date of the amendment until 1.5.1995 is raised. 19.1 From the submissions by learned advocate for the petitioner and more particularly from the notification issued by the provident fund organization it appears that even according to the provident fund organization matter with regard to past period (i.e. arrears for the period from the effective date of the amendment until the date of the decision by Hon'ble Apex Court) was under consideration by the provident fund organization. Even before any final decision by the provident fund organization could be taken, the respondent No. 3 demanded payment of arrears from the petitioner and the learned Tribunal has confirmed the said demand vide order dated 16.3.2011. 20. In the decision dated 16.3.2011 learned Tribunal has also observed that:- 8. It is contended that according to the circular the appellant is not liable to pay the dues. The Circular No. 12/Misc/91E1 date 28.6.1995 shows that the realization of past dues was under consideration so the circular clearly shows that no waiver was allowed with regard to the past dues. 21. The said observations by learned Tribunal is required to be considered in light of the notification dated 28.6.1995 which reads thus:- "4. As regards that past period, the matter is under consideration with the Government and further communication will follow". 22. The petitioner has emphasized the said paragraph and claimed that until provident fund organization takes any decision with regard to past period the demand could not have been raised. 22.1 As against the said contention learned Tribunal has, after recording findings of fact, held and observed in paragraph No. 8 of the order that the said notification does not speak about waiver and does not restrain realization of the past due therefore, the grievance of the respondent No. 3 is unjustified. 23. So far as the observations by the learned Tribunal in paragraph No. 8 of the decision dated 16.3.2011 are concerned, in light of the notification the said observations cannot be faulted and cannot be said to be erroneous or unjustified. 23.1 The petitioner has failed to make out any ground against the said observation and conclusion by the learned Tribunal. 24. 23.1 The petitioner has failed to make out any ground against the said observation and conclusion by the learned Tribunal. 24. As mentioned earlier, unless any specific provision is made while amending the provisions under the Act clarifying that the amendment would be applicable from any retrospective date or any future date i.e. any date subsequent to the date of notification, the amended provision would become effective from the date mentioned in the notification as "effective date". 25. In absence of such clarification in the amendment, and in absence of direction - order by Hon'ble Apex Court holding that the amendment would be effective only from the date of the judgment the petitioner's contention that the obligation to pay contribution would commence only from the date of the decision by Hon'ble Apex Court, cannot be sustained. 26. During the hearing of this petition learned advocate for the petitioner failed to point out any observation by Hon'ble Apex Court directing that the liability to pay contribution in respect of the employees as per amended provision would be effective and enforcible from the date of the decision by Hon'ble Apex Court. 27. In absence of such observation and clarification by Hon'ble Apex Court the findings by the learned Tribunal cannot be faulted. 28. At this stage it is relevant to refer to the order passed by the Court in present petition on 1.12.2011. The said order reads thus:- "Heard learned advocate Mr. Mehul K. Vakharia for the petitioner. The learned advocate for the petitioner invited attention of the Court to para 8 of the order impugned dated 16th March 2011-Annexure 'A' and invited attention of the Court to Annexure 'D' - paged 36, wherein para 4 reads as under: "As regards that past period, the matter is under consideration with the Government and further communication will follow." Though this is dated 28th June 1995, the learned advocate for the petitioner states that no decision of the Government of India is received so far. The learned Presiding Officer, Employees Provident Fund Appellate Tribunal (EPFAT), Delhi has brushed aside this aspect by saying that, "8. It is contended that according to the circular the appellant is not liable to pay the dues. The learned Presiding Officer, Employees Provident Fund Appellate Tribunal (EPFAT), Delhi has brushed aside this aspect by saying that, "8. It is contended that according to the circular the appellant is not liable to pay the dues. The Circular No. 12/Misc/91-E1 dated 28.6.1995 shows that the realisation of past dues was under consideration so the circular clearly shows that no waiver was allowed with regard to the past dues." 2. There cannot be more misreading/misinterpretation of the contents of the circular. The matter requires consideration. RULE. NOTICE as to interim relief returnable on 15th December 2011. Ad interim relief in terms of para 8(D). Direct service is permitted." 29. In this background and considering the paragraph No. 4 of the notification dated 28.6.1995, present petition is disposed of with the clarification that the respondent No. 3 shall take any action after seeking necessary clarification from the competent authority in light of paragraph No. 4 of the notification dated 28.6.1995. 30. A copy of the decision which might have been taken or which may be taken by the government/provident fund organization with regard to past period shall be supplied to the petitioner and appropriate further action, as may be necessary as per the decision by government/provident fund organization with regard to past period, and as may be required pursuant to the order passed in 7A proceedings and conferred by learned tribunal vide order dated 16.3.2011, may be taken thereafter. With the aforesaid clarification the petition is disposed of. Rule is discharged.