Sylee Tea Estate Ltd. v. Regional Provident Fund Commissioner, Jalpaiguri
2017-11-09
SAMBUDDHA CHAKRABARTI
body2017
DigiLaw.ai
JUDGMENT : 1. Heard Mr. Majumder, the learned advocate for the petitioner and Ms. Banerjee, the learned advocate for the provident fund authority. 2. Although there is a provision for a statutory appeal this writ petition is taken up for consideration as, I am informed, the Appellate Tribunal is practically non-functioning. 3. The petitioner challenges an order dated August 25, 2017 passed by the Regional Provident Fund Commissioner, i.e. the respondent no. 1 herein. This order has been passed under Section 7A of the Employees’ Provident Fund & Miscellaneous Provisions Act in respect of the petitioner-establishment for the period from May 2015 to September 2016. 4. On an allegation that the concerned establishment had failed to deposit the provident funds and other dues an enquiry under Section 7A of the said Act was conducted by the respondents for the period mentioned above and in the manner prescribed by the Act. The petitioner was given an opportunity of being heard and it was represented by a learned Advocate as well as its Manager. 5. The contention of the petitioner was that the casual and temporary workers engaged for the emergent work of the establishment should not be taken into consideration for the purpose of counting the number of employees, the statements made in respect of temporary cash pluckers who worked for a brief period are not regular employees and therefore, they should not be treated as employees of the establishment and not only the establishment but the agency as well is liable to make the alleged dues. 6. The respondent no. 1 has taken the submissions into consideration and concluded factually that the petitioner-establishment had failed to deposit the provident fund dues for the relevant period. He assessed the amount payable by the establishment under Section 7A as well as under Section 7Q of the Act to the tune of Rs. 2,19,02,937/-. Of that admittedly an amount of Rs. 23 lakhs has already been recovered by the provident funds authorities by attaching the bank accounts of the petitioner. Now the total due comes to about Rs. 1 crore 89 lakhs and odd. 7. Mr. Majumder’s initial prayer is for a liberty to liquidate the total outstanding sum by way of instalments. 8. Ms.
23 lakhs has already been recovered by the provident funds authorities by attaching the bank accounts of the petitioner. Now the total due comes to about Rs. 1 crore 89 lakhs and odd. 7. Mr. Majumder’s initial prayer is for a liberty to liquidate the total outstanding sum by way of instalments. 8. Ms. Banerjee very vehemently opposed this prayer on the ground that in respect of the period starting from July 2014 till April 2015 the petitioner is a defaulter in respect of more than Rs. 33 lakhs. She also submits that the petitioner has not been paying the current dues since October 2016. 9. In the teeth of such objection Mr. Majumder decided to assail the order on merit submitting that the order is more on law than on fact and there have been various factual anomalies which the respondent no. 1 failed to take care of. The order, according to Mr. Majumder, does not specify the number of employees, the wages they have received, so on and so forth. 10. The stand of the petitioner is obviously self-contradictory. The petitioner has prayed for instalments not only verbally but also in the writ petition itself. Had Ms. Banerjee not opposed this prayer the petitioner would not have anything to say about the purported impropriety of the order. If an order is good it is good for all purpose. If an order is bad it cannot be rendered unobjectionable if instalments are allowed; but if instalments are not allowed it is bad. 11. On merits also the respondents have taken into consideration the report of the Enforcement Officer, a copy of which must have been provided to the petitioner at least the petitioner does not make any grievance about it which certainly does contain specifically the number of employees that the petitioner has been engaging. The petitioner while challenging the order of the respondent no. 1 has not even mentioned the number of employees it has engaged for the purpose of running the establishment and the nature of such employment. This is an information which is within the special knowledge of the petitioner and, therefore, the onus lies on the petitioner to disclose the same. The petitioner without doing the same has found fault with the respondents. Moreover, since the respondent no.
This is an information which is within the special knowledge of the petitioner and, therefore, the onus lies on the petitioner to disclose the same. The petitioner without doing the same has found fault with the respondents. Moreover, since the respondent no. 1 has accepted the report of the Enforcement Officer the petitioner should not make any complaint about the number of employees which has been accepted by the respondent no. 1. 12. The order impugned does not suffer from any infirmity and also does not call for any judicial interference. It needs to be highlighted again that the petitioner also initially did not make any grievance about the order and would have accepted it if instalments have been allowed. The demerits of an order do not surface if prayer for instalments is opposed by the respondents. 13. The writ petition merits no consideration and the same is dismissed. 14. There will be no order as to costs.