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2018 DIGILAW 1010 (BOM)

Central Board Of Trustees v. Annapurna Restaurant

2018-04-10

A.S.CHANDURKAR

body2018
JUDGMENT A.S. Chandurkar, J. (Oral) - In view of notice for final disposal issued earlier the learned Counsel for the parties have been heard by issuing Rule and making the same returnable forthwith. 2. The petitioner is aggrieved by the order passed by the Employees Provident Fund Appellate Tribunal dated 2292014 whereby the appeal preferred by the respondent herein challenging the adjudication under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short, the said Act) has been allowed and the order passed by the Regional Provident Fund Commissioner has been set aside. 3. According to the petitioner, the respondent herein was running two establishments by name Annapurna Restaurant and Swagatam Restaurant. These two Restaurants were having a common kitchen and they satisfied the necessary ingredients warranting clubbing of the said two establishments. On the complaint made by the employees of the said establishments that the employer was not paying the provident fund dues, the Enforcement Officer was deputed for making necessary enquiry. After such enquiry was made, it was directed that from July, 1995 the two establishments should be treated as clubbed for the purposes of coverage under the said Act. The proceedings had reached this Court and in Writ Petition No. 2682/1998 this Court had remanded the proceedings to the Provident Fund Commissioner to decide the matter afresh. After such remand the Provident Fund Commissioner by order dated 562013 under provisions of Section 7A of the said Act directed that the provisions of the said Act would be applicable to both the establishments from July, 1995. It accordingly ordered implementation of that order. Being aggrieved the respondent filed an appeal under provisions of Section 7I of the said Act and by the impugned order that appeal came to be allowed and the order passed by the Provident Fund Commissioner was set aside. Being aggrieved the present writ petition has been filed. 4. Dr. R. S. Sundaram, learned Counsel for the petitioner submitted that the appellate Tribunal without considering the material on record as well as the well reasoned order passed under provisions of Section 7A of the said Act has proceeded to reverse that order on irrelevant grounds. He submitted that there was sufficient material on record including the statements recorded to substantiate the conclusion drawn by the Regional Provident Fund Commissioner. He submitted that there was sufficient material on record including the statements recorded to substantiate the conclusion drawn by the Regional Provident Fund Commissioner. By ignoring that evidence and by appreciating the evidence in a perverse manner, the said order has been set aside. Referring to the deposition of one Shri. T. S. Bageshwar, it was submitted that said witness had deposed that he had seen a common entrance for the common premises for the two establishments. He had seen the employees working interchangeably in both the establishments and the kitchen was common for both the Restaurants. The Tribunal in para 14 of its judgment while referring to the said evidence has come to a perverse conclusion that the witness had stated otherwise. The said finding was contrary to the record and hence not sustainable. The ground that the employees whose services had been terminated had not challenged the order of termination was not a relevant factor for setting aside the order passed by the Regional Provident Fund Commissioner. It was therefore submitted that by passing a cryptic order, the Tribunal has failed to properly exercise the jurisdiction vested in it. 5. Shri. A. J. Pathak, learned Counsel for the respondent supported the impugned order. According to him, it was rightly found by the Tribunal that there was absence of functional integrity between the two establishments and that the total number of employees was less than twenty. It was not permissible for this Court to again re-appreciate the evidence for coming to another conclusion. A possible view of the matter was taken by the Tribunal and hence, no interference was called for. 6. After considering the learned Counsel for the parties and after perusing the material placed on record, I find that the petitioner is justified in contending that the Tribunal has set aside the order passed by the Regional Provident Fund Commissioner without considering the entire material on record. Perusal of the order passed by the Regional Provident Fund Commissioner indicates that the conclusion therein has been arrived at after weighing the entire material on record as well as the statements of the persons who had inspected the establishments. Cogent reasons were assigned by the Commissioner for concluding that there was functional integrity between the two establishments. Perusal of the order passed by the Regional Provident Fund Commissioner indicates that the conclusion therein has been arrived at after weighing the entire material on record as well as the statements of the persons who had inspected the establishments. Cogent reasons were assigned by the Commissioner for concluding that there was functional integrity between the two establishments. This well reasoned order has been reversed by the Tribunal without concluding that the findings of the Regional Provident Fund Commissioner could not have been arrived at on the basis of the material on record. In fact, the observations in paragraph 14 of the order of the Tribunal are contrary to what was deposed by the said witness. The importance given to the absence of the orders of termination being challenged by the employees is unwarranted and the same would not be relevant while considering the aspect of functional integrity. It is found that the order passed by the Tribunal is without taking into consideration the entire material available on record thereby causing prejudice to the case of the petitioner. In the light of the substantial material considered by the Regional Provident Fund Commissioner, it was necessary for the Tribunal to have adverted to those aspects which had found favour with the Commissioner. Ignoring those aspects and by giving importance to secondary factors, the order passed under Section 7A of the said Act has been set aside. I find that a fresh consideration of the appeal by the Tribunal is necessary. 7. In view of the aforesaid discussion, the following order is passed: (1) The order passed by the Employees Provident Fund Appellate Tribunal, New Delhi dated 2292014 in Appeal No. 410(9)/13 is quashed and set aside. (2) The said appeal is restored for fresh consideration in accordance with law. The appeal be adjudicated in accordance with law without being influenced by any observations made in this order. (3) The parties shall appear before the Tribunal on 252018 and the appeal be decided expeditiously. (4) Rule is made absolute in aforesaid terms with no order as to costs.