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M/s. Vaigai Agro Products Ltd., Rep.through Nagarajan, Assistant General Manager, Tirunelveli v/s The Assistant Provident Fund Commissioner Employees Provident Fund Organization, Tirunelveli

    W.A.(MD) No. 1170 of 2021 & C.M.P.(MD) No. 4999 of 2021 & W.P.(MD) No. 22849 of 2017 & W.M.P.(MD) No. 19151 of 2017

    Decided On, 15 July 2021

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM & THE HONOURABLE MRS. JUSTICE S. ANANTHI

    For the Appearing Parties: K. Muralisankar, V.O.S. Kalaiselvam, Advocates.



Judgment Text

(Prayer: Writ Appeal filed under Clause 15 of Letters Patent to set aside the order, dated 27.02.2018, passed in W.P.(MD) No.21130 of 2017, on the file of this Court.

Writ Petition filed under Article 226 of the Constitution of India, to issue a writ of certiorari calling for the records relating to the impugned order passed by the first respondent dated 08.07.2014 in ATA No.558(13) 2012 and quash the same.)

Common Judgment

T.S. Sivagnanam, J.

1. The appellant in the writ appeal is the Management of M/s.Vaigai Agro Products, who are aggrieved by the order dated 27.02.2018, passed in W.P.(MD) No.21130 of 2017, which was filed by the Employees Provident Fund Organisation (hereinafter, referred to as “the Organisation”) challenging the order passed by the Employees Provident Fund Appellate Tribunal (“the Tribunal”, for brevity), dated 08.07.2014.

2. The writ petition was allowed by remanding the matter back to the file of the original Authority for fresh consideration for the reason that the beneficiaries, who are entitled to receive the provident fund amount, are required to be identified. The learned Writ Court agreed with the Tribunal, which had held that identification of the beneficiaries was required to be done, but faulted the Tribunal for not having remanded the matter for fresh consideration. Therefore, the writ petition was allowed to the said extent and the matter was remanded to the original Authority to conduct a fresh enquiry and ascertain the beneficiaries. The Management is aggrieved by such order and is on appeal before us.

3. The petitioner in W.P.(MD) No.22849 of 2017 is the Organisation, who have challenged the order passed by the Tribunal in respect of the very same Management with regard to the provident fund contribution for the months of January, 2011 and February, 2011. Whereas, the period involved in the writ appeal was for the period from September, 2010 to December, 2010.

4. The Enforcement Officer of the Organisation visited the establishment of the Management on 06.12.2011 to verify the facts given in the review petition filed under Section 7B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (“the Act” for brevity). During the course of verification, it was observed that the contract between the Management and the Contractor was changed from September, 2011 and it was found that 28% of the total salary has only been allocated to basic wages to avoid provident fund payment for full wages. From September, 2011 onwards, 99.38% of total salary was taken into account for workers' wages and the Management has prepared records accordingly. Further, it was observed that salary of Rs.10,000/- has been shown as wages for each employee and the Management not paid provident fund contribution on the ground that the employees are drawing more than Rs.6,500/- as salary, which is contrary to the facts.

5. Further, it was observed that the workers employed during inspection are almost the same workers engaged by the previous contractor and the workers informed the officer that they are paid only Rs.200/- to Rs. 350/- as daily wages, whereas, the employees shown to have paid Rs.400/- to Rs.500/-. Thus, the Enforcement Officer came to the prima facie conclusion that the Management has given false statement in order to avoid provident fund payments and concluded that the order passed by the Assistant Provident Fund Commissioner under Section 7A of the Act holds good.

6. The Management submitted their objections, dated 28.12.2011 and ultimately, an order dated 06.06.2012 was passed by the Organisation determining the dues under Section 7A(1)(b) of the Act for the period from September, 2010 to December, 2010. Aggrieved by the said order, the Management preferred appeal before the Tribunal. The Tribunal, by order dated 08.07.2014, allowed the appeal on the grounds that identification of beneficiaries is the primary responsibility of the Enquiry Officer, which has not been discharged by the Assistant Commissioner and quantifying the dues without identifying the beneficiaries was not sustainable. The said order was challenged by the Organisation by filing W.P.(MD) No.21132 of 2017. The said writ petition has been allowed by order dated 27.02.2018, remanding the matter to the original Authority for fresh enquiry. Aggrieved by the same, the Management has preferred the appeal.

7. As mentioned above, the writ petition in W.P.(MD) No.22849 of 2017 filed by the Organisation is challenging the order, dated 08.07.2014, passed by the Tribunal for the subsequent period i.e. January, 2011 and February, 2011 on the same grounds, which they have raised in W.P.(MD) No. 21130 of 2017, which has been allowed by the order impugned in W.A.(MD) No.1170 of 2021.

8. We have elaborately heard Mr.V.O.S.Kalaiselvam, learned counsel appearing for the Management and Mr.K.Muralisankar, learned counsel appearing for the Organisation.

9. The first objection raised by the learned counsel appearing for the Management is that the writ petition is not maintainable by the Assistant Provident Fund Commissioner as the said Officer was discharging quasijudicial function under Sections 7A and 7I of the Act and once such an order was set aside by the Appellate Authority, it would not be permissible for the Assistant Provident Fund Commissioner to challenge the order passed by the Appellate Authority reversing his order and permitting such an exercise would be subversive of judicial discipline. Further, it is submitted that an Authority, while discharging quasi-judicial function, cannot challenge the order passed by the Appellate Authority reversing his / her order. In support of such contention, the learned counsel placed reliance on the decision of the High Court of Bombay in Asstt. Provident Fund Commissioner, Goa vs. Nirmitee Holidays (P) Ltd., Pune [2011-II-LLJ-469 (Bom)] and the decision of the High Court of Andhra Pradesh in Assistant Provident Fund Commissioner, Visakhapatnam vs. Employees Provident Fund Appellate Tribunal and another [2013-II-LLJ-82 (AP)].

10. Without prejudice to the said contention, the learned counsel submitted that the payment made to the Contractor towards the work done by his worker exceeds the ceiling limit of Rs.6,500/- after adjusting the contractor profit of 12% and the 88% of the balance paid to the workers of the Contractor itself exceeds the ceiling limit of Rs.6,500/- and hence, the workers will not come under the definition of “employees” for the purpose of the Act and the Scheme framed thereunder and the question of deduction does not arise. Further, the Management has deducted 1% TDS on total payment made to the Contractor, since the entire payment made to the Contractor are construed as wages paid to his workers and therefore, the Management was on the impression that the entire amount paid to the Contractor are for his workers.

11. Further, it is submitted that overtime wages has been specifically excluded under Section 2(b)(ii) of the Act and the Authorities erred in including the overtime wages for the purpose of computing contribution payable and the same is against the provisions of the Act. Further, it is submitted that food concession extended by the Contractor to his workers is specifically excluded under Section 2(b)(ii) of the Act and inclusion of the same for the purpose of computing the contribution payable is against the provisions of the Act. Further, the enquiry ordered under Section 7A of the Act is without conducting any inspection and without furnishing the copy of the report. Further, there is lot of contradictions in the Enforcement Officer's report, which have not been taken into consideration while determining the compensation. Further, the employees, who were engaged, are the employees of the Contractor and the Management effected payment to the Contractor and it is the Contractor, who has to decide the payment of wages to his employees and without impleading the Contractor as the party, the determination of contribution could not have been made.

12. Further, it is submitted that though the Enforcement Officer has alleged that when he enquired the contract labourers, they stated that they received only Rs.200/- to Rs.350/- as daily wages, however, the names of those contract labourers were not disclosed to the Management and no opportunity was granted to the Management to prove such a statement was incorrect. It is submitted that taking into consideration the grounds raised by the Management, the Tribunal rightly held that there is neither any identification of beneficiaries nor the wages of the employees have been recorded and the question would be as to who will receive the provident fund amount or how the amount will be disbursed among the beneficiaries and identification of the beneficiaries being the primary responsibility of the Enquiry Officer, which was not discharged, the question of determining the amount payable as contribution would not arise.

13. It is further submitted that the learned Writ Court had agreed with the findings of the Tribunal, but thought fit to remand the matter for fresh enquiry and the Management, at this distance of time, does not have the records to establish, more particularly, when the workers were those engaged by the Contractor. That apart, the Management had also raised a question of jurisdiction for raising a demand as the workers of the Contractor would not fall within the definition of “employees” for the purpose of the Act. Therefore, it is submitted that the order passed by the Tribunal should be confirmed and the writ petition filed by the Organisation may be dismissed.

14. Mr.K.Muralisankar, learned counsel appearing for the Organisation, submitted that the decisions relied on by the learned counsel appearing for the Management questioning the jurisdiction of the Authority to file the writ petition are not applicable to the facts of the case as the writ proceedings have been filed by the Board of Trustees of the Organisation and the power has been delegated to the Assistant Provident Fund Commissioner and in all these decisions, relied on by the learned counsel for the Management, it was the Assistant Provident Fund Commissioner, who filed the appeal.

15. It is submitted that the Management had paid amount to the Contractor, which includes the wages of the employees and the Contractor profit and other expenses. Out of the total amount paid, only 28% was shown as wages on which provident fund contribution was paid by the Management. Whereas, 25% of the total amount was shown as grocery materials, which was made for supply of food, gas etc., to the workers and their family and it constitute cash value of food concession and it is liable for provident fund contribution as per Explanation I under Section 6 of the Act, which is to the effect that for the purposes of this section dearness allowance shall be deemed to include also the cash value of any food concession allowed to the employee. Similarly, 14% of the total amount shown as overtime allowance, whereas the Management had paid the amount to the Contractor on the basis of production / tonnage and not on the basis of working hours and as such, the concept of overtime will not come. The Organisation, under Section 7A of the Act, decided that 67% of the amount paid (i.e.28+25+14) to the Contractor constitutes wages payable to the contract employees and accordingly, determined the dues and it is as per law.

16. Further, it is submitted that the monthly payment made by the Contractor stating to be Rs.7,142/- per employee on an average basis cannot be accepted for deciding as to whether the employee is excluded from the definition of “employee” or not under the Act. Further, it is submitted that the Management had remitted certain amounts for the period from September, 2010 to December, 2010 on 31.03.2011 and produced remittence challan, which shows that they were not prompt in remitting the provident fund dues and they remitted certain amounts only after enquiry was initiated under Section 7A of the Act by notice dated 09.02.2011.

17. Further, the Management has not produced all relevant records during the enquiry under Section 7A of the Act and it had been admitted that they had calculated provident fund dues on minimum wages, but not on actual wages, since they had paid contractors on the basis of the production / tonnage and the details of wages were not known to them.

18. Further, it is submitted that aggrieved by the order dated 30.06.2011 issued under Section 7A of the Act, the Management filed a petition on 16.08.2011 under Section 7B of the Act to review the order and after enquiry, the details were directed to be verified and by order, dated 30.06.2011, the order was set aside with a direction to conduct fresh enquiry and accordingly, fresh enquiry under Section 7A of the Act was initiated vide notice dated 20.11.2011. During said enquiry, the Management sought for copy of the reports of the Enforcement Officer and accordingly, a copy of the report dated 22.05.2011 of the Enforcement Officer and the squad report dated 08.12.2011 were sent to the Management vide letter dated 11.05.2012. Therefore, it is submitted that the allegation made by the Management that inspection report was obtained after the enquiry is baseless and there is no violation of principles of natural justice.

19. Further, it is submitted that the Management is covered under the provisions of the Act and allotted a code number and sought for a separate code number for their unit at Adaikkalapattinam for complying with the provisions of the Act in respect of the employees engaged through Contractor and assured that all the statutory provisons would be complied with for the said code number as they do for the main unit and accordingly, code No.TN/75776 was allotted.

20. It is further submitted that in terms of Paragraph No.30 of the Employees' Provident Fund Scheme 1952, the Management being the principle employer is responsible for the remittence of provident fund dues in respect of the contract employees. It is submitted that the Management contends that the employees' wages exceeds Rs.6,500/-, which is only a tactics to avoid the actual liability under the Act and the Schemes. Out of the total amount, only 28% was shown as wages on which provident fund contribution paid by the Management.

21. Further, in terms of the Paragraph No.26 of the EPF Scheme, it is the obligation on the part of the Management to disclose the facts of joining of the employees in his establishment through statutory forms and therefore, the observation of the Tribunal that the beneficiaries are not identified could not have been a reason to interfere with the order passed by the Authority without noting the vital fact that the Management has failed to discharge their statutory obligation. Further, it is submitted that the Tribunal did not consider the various contentions, which were putforth by the Organisation in their elaborate counter statement, dated 25.07.2013, more particularly, the assurance given by the Management in writing that they will comply with the statutory provisions when they sought for allotment of a separate code number in respect of the contract employees. Therefore, it is submitted that the order of the Tribunal ought to have been set aside in its entirety and not remanded to the original Authority for fresh consideration.

22. The arguments with regard to the jurisdictional aspect as well as on facts raised in the writ petition is identical to that of the contentions advanced before us in the writ appeal.

23. We have elaborately heard the learned counsel appearing for the parties and carefully perused the materials available on record.

24. As rightly pointed out by Mr.K.Muralisankar, learned counsel appearing for the Organisation, the writ petitioner is the Central Board of Trustees and the Employees Provident Fund Organisation represented by the Assistant Provident Fund Commissioner, who has been delegated the power to challenge the order passed by the Tribunal. Therefore, the contention of the Management that the Assistant Provident Fund Commissioner cannot maintain the writ petition and he as the quasi-judicial Authority cannot challenge the order of the Tribunal cannot be applied to the case on hand as it is the Central Board of Trustees of the Organisation, who have challenged the order of the Tribunal by delegating its power to the Assistant Provident Fund Commissioner. Hence, we hold that the writ petition was maintainable and the decisions cited supra cannot be applied to the facts and circumstances of the case.

25. Next we move on to consider as to whether the order passed by the learned Writ Court remanding the matter to the Original Authority was justified or not. The learned Writ Court came to the conclusion that the Tribunal was right in holding that the beneficiaries have not been identified. We are not in agreement with the said finding recorded by the Tribunal, which was affirmed by the learned Writ Court. This is so, because the Management was under the statutory obligation to furnish all details, more particularly, in terms of Paragraph No.26 of the Scheme. If such is the obligation cast upon the Management, it goes without saying that the Organisation is bound to compute the contribution payable. Therefore, the Management cannot take advantage of its own default and contend that the beneficiaries have not been identified. There is a statutory obligation on the Management to pay the contribution as it is the principal employer. The Tribunal has not dealt with any of the issues, which have been raised by the Management in their counter affidavit to the appeal petition filed by the Management. In the preceding paragraphs, we have set out the contentions advanced by the learned counsel for the Organisation, which are in fact the grounds raised by the Organisation in their counter affidavit before the Tribunal.

26. To say the least, the order passed by the Tribunal is cryptic. The Organisation has not only brought out the statutory obligation, which the Management failed to fulfill, but also on facts pointed out as to how the contribution is payable by the Management. Therefore, in our considered view, the writ petition should have been allowed in its entirety. We are precluded from holding so, because the Organisation has not filed writ appeal against that portion of the order in W.P.(MD) No.21130 of 2017, dated 27.02.2018. However, such a problem will not arise in W.P.(MD) No.22849 of 2017, wherein we can consider as to whether the order of the Tribunal was justified in allowing the Management's appeal in its entirety. There is no difference in the phraseology or the conclusion in the order of the Tribunal in both cases. It is verbatim the same and the only difference is the period for which computation has been done. Nevertheless since the writ petition is an original proceeding and it has been filed by the Central Board of Trustees, we are entitled to hold in the writ petition that the order passed by the Tribunal is cryptic. The factual matrix has not been gone into by the Tribunal. The Tribunal has not been able to point out any error in the order passed by the Authority, wherein the factual aspects have been clearly brought out. In fact, the determination of the contribution has been done for the second time as the earlier order was set aside and the matter was remanded for fresh enquiry. Therefore, the question of remanding the matter for fresh enquiry is an uncalled for exercise at least in the case in W.P.(MD) No.22849 of 2017.

27. Above all, the Management has given in writing that they will comply with the statutory provisions as they do for their principal Unit and this undertaking was given by them while applying for a separate code for the second unit. This undertaking goes to the root of the matter and the Management is estopped from contending contra to the said undertaking. The allegation that there has been violation of the principles of natural justice is absolutely without any basis. In our considered view, more than reasonable opportunity has been granted to the Management, which has been availed by them and they participated in the enquiry and they were represented by the counsel. Therefore, the plea raised by the Management that no proper enquiry was conducted and proper opportunity was granted has to necessarily fail.

28. The learned counsel appearing for the Management placed reliance on the decision of the Honourable Supreme Court in Himachal Pradesh State Forest Corporation vs. Regional Provident Fund Commissioner [2008-III-LLJ-581 (SC)]. In the said case, the appeal filed by the Forest Corporation was dismissed holding that the intention on the part of the Commissioner to initiate proceedings within a reasonable time has to be deplored. However, when the Forest Corporation itself has submitted that it was covered under the Act, considering the long delay, amounts due from the Corporation will be determined only in respect to those employees, who are identifiable and whose entitlement can be proved on evidence. This decision is pressed into service to state that the beneficiaries have not been identified and therefore, the question of remitting contribution does not arise. Firstly, the facts in the said case are entirely different and that the Forest Corporation therein admitted that it is covered under the Act and the Honourable Supreme Court made such an observation on account of the delay on the part of the Provident Fund Commissioner to initiate proceedings. Therefore, limited relief was granted to the Forest Corporation that the amounts due from it will be determined only with respect to those employees, who are identifiable.

29. The case on hand is factually different.

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It is clear that the Management had all the details with them and also unequivocally agreed to comply with the provisions of the Act and after proceedings were initiated under Section 7A of the Act, remittence were made belatedly and remittence challan was produced before the Authority. Thus, the plea raised by the Management during the enquiry as well as before the Tribunal lacks bona fide and the Management having failed to fulfill the statutory obligations, no relief ought to have been granted to it by the Appellate Tribunal. As observed earlier, since the Organisation has not filed a separate writ appeal against the order passed in W.P.(MD) No.21130 of 2017, we are not setting aside the order passed by the Tribunal, but dismiss the writ appeal filed by the Management. 30. Insofar as W.P.(MD) No.22849 of 2017 is concerned, as observed earlier, the order passed by the Tribunal is absolutely cryptic, suffers from manifest errors, non-consideration of the materials, which were placed by the Organisation before the Tribunal, the factual averments set out in the counter affidavit and to say the least, the order is devoid of reasons. Though the Tribunal has referred to few decisions to substantiate its conclusion, there was a duty cast upon the Tribunal to examine the facts, especially when elaborate counter statement was filed by the Organisation for the consideration of the Tribunal. Therefore, we find that the order passed by the Tribunal impugned in W.P.(MD) No.22849 of 2017 calls for interference. 31. In the result, (i) W.A.(MD) No.1170 of 2021 is dismissed and the respondent – Organisation is directed to conduct a fresh enquiry as ordered by the learned Writ Court for the period in question and compute the contribution payable by the Management. This exercise shall be completed within a period of three months from the date of receipt of a copy of this Judgment. Needless to state that the appellant – Management shall extend full cooperation to the enquiry. (ii) W.P.(MD) No.22849 of 2017 is allowed and the order passed by the Tribunal dated 08.07.2014 in ATA No. 558(13) 2012 is set aside and the order passed by the Assistant Provident Fund Commissioner, Tirunelveli, dated 06.06.2012, is restored and the Organisation is permitted to take steps for recovery of the contribution from the Management. (iii) No costs. Consequently, connected miscellaneous petitions are closed.
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