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2017 DIGILAW 527 (CAL)

Sabita Enterprise v. Regional Provident Fund Commissioner-I

2017-06-08

RAKESH TIWARI, SHIVAKANT PRASAD

body2017
JUDGMENT : Rakesh Tiwari, J. The appellants have preferred this appeal aggrieved by the judgment and order dated 23rd November, 2016, passed by learned Single Judge in W.P. No. 22477(W) of 2016, on the ground that the impugned judgment and order is vitiated by gross error of law and having regard to the facts and circumstances of the case, the impugned judgment is wrong, both on facts and in law. 2. Stand of the appellants is that the learned Judge failed to appreciate that statutory provisions wherein before the question of payment and/or liability of the appellants under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, in the case of contractors/sub-contractors, the provisions of sections 27, 28, 30, 31 and 32 of the Code of Civil Procedure must have to be looked into prior to determination of dues of the contractor and sub-contractors. 3. The crux of the stand of the appellants is that the learned Court failed to appreciate and ignored the powers vested in the aforesaid sections and without considering the same, the question of determination of dues of the contractors/sub-contractors, does not and cannot arise. However, in the instant case, learned Judge without considering the aforesaid provisions, has passed an order to the effect that the Reviewing Authority has correctly dealt with the engagement of sub-contractors under the petitioner no. 1, which is a clear case of gross violation of the principles of natural justice in view of the judgment of this Court in the case of Rajasthan State Road Development and Construction Corporation Limited v. Regional Provident Fund Commissioner and Anr. 4. We have considered the grounds of the appeal and the facts and circumstances of this case. The order dated 28th May, 2016, passed under section 7A of the Act of 1952 and also the order of review, passed under section 7B of the said Act relate to payment by sub-contractors who are excluded members and are said to have been erroneously included. 5. We find that the thrust of submission advanced by the appellants with regard to the aforesaid, was dealt considered and after perusing the order impugned in the writ petition, the Court had found that Reviewing Authority had correctly dealt with engagement of sub-contractors under the petitioner no. 5. We find that the thrust of submission advanced by the appellants with regard to the aforesaid, was dealt considered and after perusing the order impugned in the writ petition, the Court had found that Reviewing Authority had correctly dealt with engagement of sub-contractors under the petitioner no. 1 and has also rightly came to the conclusion that it was the liability of the petitioner to deposit the provident fund and connected benefits of the workers engaged by the principal employer. 6. Admittedly, the appellant/petitioner had appeared before the authority after receiving the notice under section 7A of the Act and had also filed a review application. Therefore, it cannot be said that the provisions of Code of Civil Procedure as provided in section 7A of the Act have not been complied with. We also note that the appellant/petitioner had a remedy to file appeal but bypassing the same, had directly approached the Writ Court and, therefore, it is redundant to remand the matter back to the Tribunal. 7. For all the reasons aforesaid, the appeal stands dismissed. Consequently, the application for stay (CAN 331 of 2017) also stands dismissed. 8. There will be no order as to costs. 9. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.