Urban Cooperative Bank Ltd. v. Employees Provident Fund Organisation
2019-04-22
BISWANATH RATH
body2019
DigiLaw.ai
JUDGMENT : Biswanath Rath, J. 1. This matter has been assigned to this Bench by way of special assignment for hearing, as the Assigned Bench declined to hear the matter. 2. This writ petition involves a challenge to the order of O.P. 2-Regional Provident Fund Commissioner (C & R) dated 1.1.2016 passed in exercise of power under Section 7-B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (herein after called as, "the Act"). 3. Short background involved in the case is that the petitioner IS a Cooperative Bank registered under the provision of the Orissa Cooperative Societies Act, 1962. The petitioner-Establishment is created with an objective to provide financial assistance/benefits to the local people and/or to general public of Cuttack Town and is running in the name and style of Urban Cooperative Bank Ltd. In order to facilitate the borrowers, and customers of the Bank for making re-payment of their loan easy and to mobilize the fund in a better way, a Daily Deposit Scheme was introduced under the guideline of the Registrar of Cooperative Societies, Orissa. Initially five Daily Deposit Collection Agents were engaged to facilitate re-payment and loan transactions but in course of time, number of Daily Deposit Collection Agents got increased. While the petitioner engaged the Daily Deposit Collection Agents in such type of engagement, the Enforcement Officer of the O.Ps., vide letter dated 14.7.2003 invited the attention of the Assistant Provident Fund Commissioner, (CC-II) to extend the Provident Fund benefit to the Daily Deposit Collection Agents. In the process, an enquiry under Section 7-A of the Act was started under the petitioner's Employee Code No. 2734 for the period from 7/2003 to 11/2005. Based on a notice to the above effect, the petitioner-Bank also went on giving evidence along with relevant records to establish its case. In course of the proceeding, there was also a direction to the petitioner for submission of details of Daily Deposit Collection Agents by issuing letters to the purported claimants while asking the petitioner to comply with the same. It appears, while engaged in exercise of power under Section 7-A of the Act, it is alleged that the opposite parties in non-application of mind arrived at an assessment in the garb of outcome of the 7-A proceeding, vide Annexure-1.
It appears, while engaged in exercise of power under Section 7-A of the Act, it is alleged that the opposite parties in non-application of mind arrived at an assessment in the garb of outcome of the 7-A proceeding, vide Annexure-1. Challenging the order under Section 7-A of the Act passed by the Q.Ps., the petitioner filed W.P.(C) No. 22776/2012, which matter was permitted to be withdrawn by order 4.11.2015 of this Court but however granting permission to the petitioner to avail the alternative remedy before the competent authority. In the process the petitioner moved an application under Section 7-B of the Act for re-consideration of the whole aspect. Pending disposal of a Review Application, a notice of demand for realization of the amount involved therein was served on the petitioner, vide Annexure-3. It is alleged that while the petitioner was waiting for hearing opportunity involving the 7-B proceeding, the petitioner was surprised to receive the rejection order of the 7-B proceeding from the O.Ps. appearing at Annexure-4, resultantly, filing of the writ petition at hand. 4. Sri N.K. Mishra, learned senior-counsel for the petitioner challenging the impugned order involved herein more particularly the order at Annexure-4 contested the order on two grounds; firstly, there was no opportunity of hearing and rejection of the Review Application has been made without assigning any reason thereby involving a non-speaking order and secondly, for production of further material, and taking further grounds in 7-B Application, it was incumbent on the part of the Reviewing Authority to decide the matter in extensive in compliance of the power provided with the Authority under Section 7-B of the Act. 5. Sri S.S. Mohanty, learned counsel for the O.Ps., on the other hand, taking, this Court to the counter, the observation of the 7-A Authority and the observation of the 7-B Authority while seriously refuting the allegations of the petitioner submitted that for the detailed disclosure therein, there is no infirmity in the impugned order at Annexure-4 requiring any, interference of this Court. Sri Mohanty further taking to the provision at Section 7-A of the Act contended that once a notice of demand is issued, it becomes necessity on the part of the Employer to establish their case by producing records and the Employer cannot throw this burden on the E.P.F. Establishment. Referring to the decisions in Prem Chand vrs.
Sri Mohanty further taking to the provision at Section 7-A of the Act contended that once a notice of demand is issued, it becomes necessity on the part of the Employer to establish their case by producing records and the Employer cannot throw this burden on the E.P.F. Establishment. Referring to the decisions in Prem Chand vrs. Regional Provident Fund Commissioner, Jajpur: 2003-II-LLJ 119 and Rajpath Motors vrs. Assistant Provident Fund Commissioner, Bhubaneswar & another 2007 (Supp. II) OLR-492, Sri Mohanty, learned counselor the O.Ps. contended that the action of the O.Ps. also gets the legal support through the aforesaid decisions. Sri, Mohanty also took a stand through an order of this Court in W.P.(C) No. 4340/2006 passed on 9.5.2017 contended since a statutory remedy of appeal is available, nothing prevented the petitioner to avail the remedy of appeal. It is in the above premises, Sri Mohanty, learned counsel for the O.Ps. prayed this Court, for rejection of the writ petition. 6. Considering the rival contentions of the parties, this Court finds, there was no dispute with regard to applicability of the Act, 1952 to the petitioner's Establishment. Question remained here to be considered as to whether a demand for inclusion of some beneficiaries particularly keeping in view the extension of Provident Fund benefit is permissible in absence of a detailed enquiry in absence of particular beneficiaries and only on the basis of some expenditure involved therein? It is in this background of the matter, this Court finds, when the 7-A proceeding was initiated involving the dispute involved herein based on production of document and taking some stand, in the 7-A proceeding, the Provident Fund Authority finally decided the 7-A proceeding, vide its order dated 21.11.2012 wherein this Court finds, in the order at Annexure-I, the Provident Fund Authority has this specific finding. "It is seen from records that the beneficiaries i.e. individual deposit collectors have not been identified. It is also observed that the 7-A inquiry has been going on for almost 7 years. And the 7-A Authority; can identify the beneficiary only when the employer cooperates as only the employer is in a position to identify and submit detailed list of beneficiaries." It is with this finding based on a judgment of Chennai High Court, it appears, the 7-A Authority has proceeded to make the demand as per the details of commission paid during different point of time.
This Court looking to the observations of the 7-A Authority finds surprise, in the attitude of the 7-A Authority expressing helplessness in coming to a legal conclusion involving such matters. Once a 7-A proceeding is initiated, the provision under the Act has also prescribed the procedure to be adopted in such determination. Nothing prevented the Provident Fund Authority to order the Employer for producing any hidden document even assuming that the Employer is suppressing some material facts since the 7-A proceeding initiated on the basis of a complain. It appears, there is no endeavour at the instance of the Provident Fund Authority to at least asking the complainant to produce any such record and identify the beneficiaries. In worse a paper advertisement could have been invited asking for applications from any such beneficiaries. 7. Keeping the above in view and looking to the decisions cited by the learned counsel for the O.Ps., this Court finds, none of the decisions is applicable to the case at hand. 8. Here this Court observes, purpose of 7-A determination is not only to cover the Establishment under the E.P.F. Act but also to bring the actual beneficiaries to the fold of P.F. benefits. This Court here observes, ultimately the benefit has to go to the beneficiaries, as collection of such amount is neither collection of tax nor collection of revenue by any other mode so as to be enjoyed by the State or Union of India. Ultimately, the amount received by the P.F. Authority has to be discharged in favour of the beneficiaries. This Court, therefore, makes, it clear that unless there is identification of the beneficiaries, such collection will be per se bad. This Court to achieve the identification of the beneficiaries also observes, nothing prevented the P.F. Authority to make an advertisement in the local daily with local language for awaiting objections or claims from the beneficiaries also. It appears, the Commissioner has not exercised the power vested in it and simply busy in collection of funds for augmentation of its fund and which funds will ultimately remain unutilized, which is not the purpose of the Act, 1952. Getting into the order, this Court finds, there is no actual determination of the issue involved herein. It is under the circumstance only, the review was very much entertainable. 9.
Getting into the order, this Court finds, there is no actual determination of the issue involved herein. It is under the circumstance only, the review was very much entertainable. 9. This Court here considering the rival contentions of the parties and getting into the order at Annexure-4 finds, rejection of the Review Application is not only unreasoned one but also a mechanical rejection one. For the provision contained in 7-B of the Act, this Court observes, the decision involving Section 7-B of the Act is not empty formality, as the order involving 7-B of the Act will have to ultimately merged with the order under Section 7-A of the Act. In absence of any reason, this Court also observes, even though an Appeal lies under Section 7-D of the Act but for not assigning any reason in the impugned order at Annexure-4, this Court finds, the petitioner has no scope for filing ah Appeal even, it is for the, observation and reason indicated herein above, while answering the questions framed herein holding that the decision on the demand is not an empty formality and such proceeding should be concluded only after all out effort for the identification of the beneficiaries. Identification of the persons does not mean that number of persons could have utilised for the involvement of money but actual identification of the persons with their names, period of engagement and wages they have drawn. 10. For the observations made herein above, this Court interfering with the order at Annexure-4 sets aside the same arid remits the matter back to the Regional Provident Fund Commissioner (C & R), Bhubaneswar for re-determination of the Review Application. The petitioner is directed to appear before the Regional Provident Fund Commissioner (C & R) with a copy of this judgment for taking date of hearing of the 7-A proceeding within three weeks. It is also open to the petitioner to bring any further reply or document to facilitate the determination of the 7-B proceeding. Till a decision is taken on the Review Application, the demand involved herein shall remain suspended but however subject, to deposit of at least 25% of the amount, under demand. The amount shall be kept in Fixed-Deposit for the benefit, of the successful party ultimately.