Usha Martin Ltd v. Employees Provident Fund Organization, Having Its Regional Office At Purulia Highway
2019-01-16
SUJIT NARAYAN PRASAD
body2019
DigiLaw.ai
JUDGMENT Sujit Narayan Prasad, J. - This writ petition is preferred against the order passed by the Provident Fund Authority issued under the Provision of Section 8(A) of the Employees'' Provident Fund & Miscellaneous Provision Act, 1952 (hereinafter referred to as the Act, 1952). 2. The sole ground taken by the petitioner in assailing the proceeding initiated by the respondent-authority under the provision of Section 8(F) of the Act, 1952 which speaks about the provision pertaining to recovery of due, hence the same can only be asserted to if the determination of due would be made by the Provident Fund Authority in exercise of the power conferred under the provision of Section 7(A) of the Act, 1952, but having done so, the issuance of the order under Section 8(F) will be said to be not proper and not in consonance with the statutory provision as contained under the Act, 1952. It has been submitted that the recovery part can only be done if the dues will be determined but here in the instant case the due have not been determined, since no proceeding has been initiated in the provision of Section 7(A) of the Act, 1952 either against the petitioner or the respondent No.5. 3. Ms. Banani Verma learned counsel appearing for the Provident Fund Authority in all fairness has submitted that there is no determination of dues having been passed by the Provident Fund Authority in exercise of power under Section 7(A) of the Act, 1952. She, however, submits that the proceeding under the provision of Section 7(A) of the Act, 1952 has not been initiated for the reason that the principal employee i.e. the petitioner herein, has taken the liability of the respondent No.5 and was payee of the provident Fund contribution by depositing the provident fund amount of the work or the other, hence there is no reason to initiate a proceeding under Section 7(A) of the Act, 1952. 4. Mr. Alok Dubey has put his appearance to represent respondent No.4- the Bank, who has been instructed by the Provident Fund Authority to adopt the amount of the petitioner. 5.
4. Mr. Alok Dubey has put his appearance to represent respondent No.4- the Bank, who has been instructed by the Provident Fund Authority to adopt the amount of the petitioner. 5. Having heard the learned counsel for the parties and on appreciation of their rival submissions, and before going into the merit of the issue it needs to refer that the Employees'' Provident Fund and Miscellaneous Provision of Section 7(A) of the Act, 1952 is a beneficial legislation having been enacted upon to provide benefit to the Industrial Work Retirements and their dependent in case of his early death or for any contingency whatsoever. 6. The said provision stipulates for depositing some part of the contribution from the wages/remuneration/salary to be deposited in the amount defined by the management where the workers are working. In case of any default depositing the amount, the liability is to be discriminated by the provident fund authority to look into the matter and initiate proceeding and to recover the dues for the benefit of concerned workman. One of the provision has been stipulated under Section 7(A) which stipulates that the provision for determination of money dues from employers. It has been provided in the aforesaid provision that the provident fund authority in the rank of any Central Provident Commissioner, or any Additional Central Provident Fund Commissioner, or any Deputy Provident Fund Commissioner, or any Assistant Provident Fund Commissioner, may conduct an inquiry in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute and determine the amount due from any employer under any provision of this Act. It is evident from the aforesaid provision that the competent authority will determine the dues after providing a reasonable opportunity of representing his case. 7. Section 8 of the Act, 1952 provides mode of recovery of money due from employer which is being referred herein. 8.
It is evident from the aforesaid provision that the competent authority will determine the dues after providing a reasonable opportunity of representing his case. 7. Section 8 of the Act, 1952 provides mode of recovery of money due from employer which is being referred herein. 8. It is evident from the aforesaid provision that any amount due from the employer in relation to an establishment to which thing, scheme or the insurance scheme applies in respect of any contribution payable to, damages recoverable under Section 14(B) accumulation required to be transferred under sub Section (2) of Section 15 or any charges payable by him under any other provision by this Act may be recovered in the manner specified in Sections 8 (B) to 8(G), meaning thereby the recovery is to be made in pursuance to the provision of Section 8 of the Act, the amount determined under Section 7(A)-3 hence there is no dispute that making order under Section 7(A)-3 determining amount of contribution due from employer which condition precedent for serving demand for payment of contribution/omission. This aspect of the matter has been considered by the Kerala High Court in the case of A.T. Union (Pvt.) Ltd., Alwaye (By its President) Vs. Regional Provident Fund Commissioner, Trivandrum, & Ors,1968 SCCOnlineKer 142 wherein the issue failed for consideration as to whether the stage for recovery of such contribution can be taken without referring to the provision of Sub Section 3 of Section 7(A) of the Act, 1952. While answering the aforesaid issue it has been laid down therein that the making of an order under sub Section 3 of Section 7(A) determining the amount due from any employer is a condition precedent for serving a demand on the employer for payment of contribution which is heard from a reading of Section 7(A) and 8 of the Act. 9. Here in the instant case the condition stipulated in the aforesaid provision is that in case of any dispute with respect to the dues the proceeding is to be initiated under the provision of Section 7(A) of the Act, 1952. 10.
9. Here in the instant case the condition stipulated in the aforesaid provision is that in case of any dispute with respect to the dues the proceeding is to be initiated under the provision of Section 7(A) of the Act, 1952. 10. As has been gathered by this Court as per the argument advanced by the learned counsel for the petitioner that they are not disputing the applicability of the Act rather they are disputing their liability, since according to their case the permanent workmen have been appointed and engaged by the respondent No.5. Therefore, respondent No.5 being an establishment within the meaning of definition of establishment made under Section 1 of the Act, 1952 since whole object of the Act, 1952 is by way of beneficial legislation and therefore the principal employer held to be liable to make payment of the dues taking into consideration the fact that the said respondent no. 5 is rendering services to the principal employer and therefore the order of recovery has been passed upon the petitioner in view of the provision of Section 8 of the Act, 1952 but she fairly admits that proceeding under Section 7(A) of the Act has not been initiated by the respondent-authority. 11. While on the other, the said aspect of the matter has seriously been disputed by learned counsel appearing for the Provident Fund Authority by submitting that the intent and spirit of the Act is to be taken care of. 12. There is no dispute that the Act, 1952 is beneficial legislation but for extending the benefit to the worker, if any provision has been made in the statute it has to be strictly adhered to on the ground of settled position of law that if any statute provides any provision the thing has to be done in accordance with the provision of law and there cannot be any deviation since it is the cardinal rule of interpretation that when statute provides with an opportunity, thing should be done, it should be done in the manner prescribed and not in any other way, reference in this regard be made to the judgment rendered by the Hon''ble Apex Court in the case of State of Uttar Pradesh, Vs. Singhara Singh & Ors, (1964) AIR SC 358 , wherein it has been held at paragraph-8 as under: " ..
Singhara Singh & Ors, (1964) AIR SC 358 , wherein it has been held at paragraph-8 as under: " .. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted ." Reference has also made to the judgment rendered by the Hon''ble Apex Court in the case of Babu Verghese & Ors. Vs. Bar Council or Kerla & Ors, (1999) 3 SCC 422 , wherein it has been held at paragraphs- 31 and 32 as under: "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: " [W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law." Reference to the judgment rendered by the Hon''ble Apex Court also needs to be made rendered in the case of Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & Ors, (2002) 1 SCC 633 , wherein it has been held at paragraph-27 as under: " ..
Anjum M.H. Ghaswala & Ors, (2002) 1 SCC 633 , wherein it has been held at paragraph-27 as under: " .. It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself .." Reference has also made to the judgment rendered by the Hon''ble Apex Court in the case of State of Jharkhand & Ors. Vs. Ambay Cements & Anr, (2005) 1 SCC 368 , wherein it has been held at paragraph-26 as under: " It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. " Reference has also made to the judgment rendered by the Hon''ble Apex Court in the case of Zuari Cement Ltd. Vs. Regional Director E.S.I.C. Hyderabad & Ors, (2015) 7 SCC 690 in (Civil Appeal No. 5138- 40/2007) wherein it has been held at paragraph- 14 as under: "14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, it was held that: (SCC p. 378, para26) "26 .. It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way." It is the settled position in law that a thing is required to be done strictly in pursuance to the provisions of law, if any deviation, then ultimately the provision as contained under the statute will have no effect. 13.
13. This Court after going across the pleadings made in this writ petition having been admitted by the learned counsel appearing for the Provident Fund Authority, there is no determination of the claim under the provision of Section 7(A) of the Act, 1952, rather the authority straightaway has invoked the jurisdiction conferred to it under Section 8(F) of the Act, 1952 which cannot be said to be in consonance with the statutory provision as contained under the Act, 1952. 14. There is no dispute that the liability is to be taken by the establishment but before it proper determination is to be made under the provision of Section 7(A) of the Act, 1952 but having not done so and straightaway invoking the power conferred under Section 8(F) of the Act, 1952 the demand notices on 16.10.2018 (Annexure-4), 02.11.2018 (Annexure-6) and 16.11.2018 (Annexure-8) have been issued which cannot be said to be in consonance with the provision made in the Act, 1952, therefore, is not sustainable in the eye of law, in consequence thereof, the same are being quashed. 15. It is equally settled position of law that on technicality no advantage can be extended in favour of anybody and if on technicality anybody would be extended benefit after quashing of the order, the same will not be proper. 16. In view thereof, the issue needs to be considered by the authority by initiating a proceeding under the provision of Section 7(A) of the Act, 1952 and therefore the competent authority having its power to exercise jurisdiction under Section 7(A) of the Act, 1952 is directed to initiate a proceeding afresh and take decision by determining the dues after providing an opportunity of hearing to the parties by going into the available records which shall be presented by the parties within a period of three weeks from the date of receipt of copy of this order. 17. The concerned authority shall complete the exercise within the period of three weeks from the date of appearance of the parties, accordingly the writ petition is disposed of. 18. Interlocutory application being I.A. No.209 of 2019 also stands disposed of.