IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.3439 of 2001 Management Coromandel International Ltd., Rep. By its Regional Head H.R., Ranipet. ... Petitioner (Cause title amended as per order dated 23.03.2010 by KCJ in WPMP.Nos.197 and 215 of 2010 in W.P.No.3439 of 2001) Vs 1.Asst.Provident Fund Commissioner, S.R.O., Employees Provident Fund Organisation, 31 Filter Bed Road, Vellore 632 001. 2.M/s.EID Parry Contractors Union Rep. By its Legal Advisor, No.8, Parry Nagar, Ranipet 632 401. 3.M.Kannadasan. ...Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records relating to impugned proceedings dated 22.12.2000 in TN/VL/344/Enf in pursuance to notice dated 29.04.1998 on the file of the first respondent, quash the said proceedings, further direct the first respondent not to proceed further with the enquiry against the petitioner. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan and Co For Respondents : Mr.V.Vibhishanan for R1 Mr.S.T.Varadarajulu for R2 Mr.Ravi for M/s.Gupta and Ravi for R3 O R D E R
The writ petition was filed seeking to challenge the proceedings dated 22.12.2000 pursuant to the notice dated 29.04.1998 on the file of the first respondent/Assistant Provident Fund Commissioner, Vellore and seeks for a direction to forbear from conducting any enquiry against the petitioner.
2. The writ petition was admitted on 22.02.2001. Pending the writ petition, this Court granted an order of injunction against the first respondent from further proceeding with the enquiry under Section 7A of the EPF Act.
3. It was the contention of the petitioner that the authority has no power to reopen any proceedings which were already concluded. Subsequently, the injunction was made absolute on 29.08.2003 on the ground that the respondent PF Department has not filed any reply to the allegations made by the petitioner Management.
4. It was thereafter on 06.08.2001, a counter affidavit was filed by the first respondent. When the matter was taken up, a settlement under Section 18(1) of the I.D.Act dated 19.11.2009 reached between the Contractors M/s.K.Anandaraj and P.Anbazhagan with the EID Parry Coromandel Fertilisers Contract Employees Union was produced. In that the trade union and their immediate contractors have agreed in paragraph 2 as follows:-
“2. Workmen hereby agree and declare that the employer is providing them wages well above the minimum rates of wages under the statue and also providing them various statutory and other benefits like Bonus, Leave with wages, Provident Fund, ESI, Gratuity etc., strictly in accordance with law and they have no grievances whatsoever either in the past or currently in this regard.”
5. Therefore, Mr.S.Ravindran, learned counsel appearing for M/s.T.S.Gopalan and Co submitted that in the light of the workers agreeing to accept the contractors as employer for all purposes any proceedings with reference to the payment of PF cannot be mulct on the petitioner Management. They also submitted that notice of enquiry under Section 7A was issued to the second respondent Trade Union on the basis of the complaint given by them. Since the second respondent Trade Union could not substantiate their original claim that they were employees of the principal employer, the said complaint was closed. As against the said order dated 21.01.1998 no appeal was filed. On 29.04.1998, the first respondent without authority reopened the enquiry under Section 7A and by an order dated 26.11.1998 he directed the petitioner company to pay contribution in respect of contract workmen for the period from 04/90 to 08/98.
6. The erstwhile Management filed an appeal before the Appellate Tribunal being ATA 13 (9)/99. The Tribunal by an order dated 29.07.1999 set aside the order of the first respondent and remanded the matter to the first respondent to issue summons even to the Contractor and to decide the legality of the proceedings. The petitioner Management raised a preliminary objection before the first respondent regarding their jurisdiction. By the impugned proceedings dated 27.12.2000, the first respondent reopened the enquiry and issued notice to the Contractor. Aggrieved by this order, the present writ petition has been filed.
7. In the counter affidavit filed by the first respondent, it was claimed that the proceedings initiated by them was valid and they have power to reopen the earlier proceedings. In paragraph 10, it was averred as follows:-
“…Hence the Assistant Provident Fund Commissioner, by his letter dated 11.2.1998 intimated his decision to drop the enquiry proposed to be conducted. However, when the Contractors Union satisfied the Enquiry Authority with sufficient proof and reasons that they did not receive the notice intimating the date of hearing on time, the authority decided to reconsider the case in the light of the material evidences promised to be submitted by the Contractors Union….”
8. Though the learned counsel appearing for the Trade Union stated that they are satisfied if they are covered by the present contractors with reference to the PF, this Court is not concerned with the subsequent settlement reached under Section 18(1) of the I.D.Act dated 19.11.2009. The first question was that the earlier order passed by the Tribunal was one of remand and therefore, the petitioner having obtained a remand order must proceed to participate in the enquiry before the first respondent. If according to the petitioner, the second respondent Trade Union has subsequently entered into a settlement then that fact will have to be proved before the authorities. That settlement cannot be used to set at naught the order of the remand made by the Tribunal which directed the hearing of only the petitioner but also the Contractor on the issue of coverage. Therefore, the subsequent settlement is at the maximum a defence which will have to be pleaded to the satisfaction of the authorities and cannot be used as a lever to set at naught the order of remand made by PF Tribunal.
9. The only question raised was when that there was a proceeding initiated earlier was concluded finally and hence, there was no power to reopen the enquiry. Since earlier proceedings were initiated at the instance of the trade union and that the trade union itself had given a petition seeking permission to substantiate their allegation, it cannot be said that there was no jurisdiction on the part of the PF Department to hear the parties afresh. Even that question has become academic, since the petitioner was satisfied with the order of remand made by the Tribunal and the P.F.Appellate Tribunal’s order was not under challenge before this Court.
10. In the light of the above, the writ petition stands dismissed. No costs.
08.06.2010
Index: Yes/No
Internet :Yes/No
svki
To
1.Asst.Provident Fund Commissioner,
S.R.O.,
Employees Provident Fund Organisation,
31 Filter Bed Road, Vellore 632 001.
2.The Legal Advisor,
M/s.EID Parry Contractors Union
No.8, Parry Nagar,
Ranipet 632 401.
K.CHANDRU,J.
Svki
Pre-Delivery order in
W.P.No.3439 of 2001
08.06.2010