PETITIONER:
FOOD CORPORATION OF INDIA
Vs.
RESPONDENT:
PROVIDENT FUND COMMISSIONER AND ANR.
DATE OF JUDGMENT26/10/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
THOMMEN, T.K. (J)
CITATION:
1989 SCR Supl. (1) 755 1990 SCC (1) 68
JT 1989 (4) 380 1989 SCALE (2)1029
ACT:
Employees' Provident Funds and Miscellaneous Provisions
Act, 1952: Section 7A--Determination of amounts payable by
employer as contribution--Statutory authority--Whether duty
bound to summon evidence when requested by party, before
coming to proper conclusion.
HEADNOTE:
Respondent No. 1--the Provident Fund Commissioner called
upon the appellant--Food Corporation of India to deposit
contribution payable by it under the Employees' Provident
Fund and Miscellaneous Provisions Act, 1952 and the scheme
thereunder, in respect of workers employed by the contrac-
tors appointed by the appellant for handling storing and
transporting food grains and other articles in its depots in
Rajasthan. On appellant's non-compliance, Respondent No. 1
made an order under Section 7A of the Act determining the
amount payable by the appellant. Against the aforesaid
order, the appellant filed writ petition before the High
Court, which dismissed the same. Hence the appeal, by spe-
cial leave, by the appellant--Corporation.
It was contended that the appellant was denied a reason-
able opportunity to produce actual proof of identification
of workers in respect of whom contribution was payable
inasmuch as Respondent No. 1 neither gave notice to contrac-
tors, who were in possession of the relevant lists of work-
ers, nor made them parties to the proceedings, despite its
repeated requests.
Allowing the appeal,
HELD: The Commissioner, while conducting an inquiry
under Section 7A of the Employees, Provident Fund and Mis-
cellaneous Provisions Act, 1952 has the same powers as are
vested in a court under the Code of Civil Procedure for
trying a suit. Thus, the Commissioner is authorised to
enforce attendance in person and also to examine any person
on oath. He has the power requiring the discovery and pro-
duction of documents. This power was given to the Commis-
sioner to decide not abstract questions of law, but only to
determine actual concrete differences in payment of contri-
bution and other dues by identifying the
756
workmen.The Commissioner should exercise all his powers to
collect all evidence and collate all material before coming
to proper conclusion. That is the legal duty of the Commis-
sioner. It would be failure to exercise the jurisdiction
particularly when a party to the proceedings requests for
summoning evidence from a particular person. [757H; 758A;
F-H]
In the instant case, the appellant--Corporation had some
problems in collating the lists of all workers engaged in
depots scattered at different places. It requested the
respondent--Commissioner to summon the contractors to pro-
duce the respective lists of workers engaged by them. Howev-
er, the appellant--Commissioner did not summon the contrac-
tors, nor the lists maintained by them. The matter is,
therefore, remitted to the Commissioner for fresh disposal.
[757F; 759A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4552 of
1989.
From the Judgment and Order dated 23.12. 1988 of the
Rajasthan High Court in C.W.P. No. 13 of 1987.
G.L. Sanghi and Y.P. Rao for the Appellant.
C.S. Vaidyanathan, S.R. Setia and K.V. Mohan for the
Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. Special leave granted.
Having heard counsel on both sides and having perused
the material on record, we are of opinion that the matter
requires reconsideration by the Provident Fund Commissioner.
The Food Corporation of India has depots located at
various places in Rajasthan for handling storing and trans-
porting food grains and other articles. It has appointed
contractors for execution of such works and the contractors
in turn engaged some workers. In respect of such workers,
the Provident Fund Commissioner called upon the Corporation
to deposit contribution payable under the Employees, Provi-
dent Fund Act and the scheme framed thereunder. When there
was non-compliance, the Commissioner made an order under
section 7A of the said Act determining amount payable by the
Corporation. Being aggrieved by that determination, the
Corporation moved the
757
High Court for relief under Art. 226 of the Constitution.
The High Court has dismissed the petition. Hence the Corpo-
ration has appealed to this Court.
The grievance complained of by the Corporation is that
it was denied of reasonable opportunity to produce material
in proof of identification of the workers in respect of whom
the contribution was payable. It is urged that the contrac-
tors are in possession of the relevant lists and the Commis-
sioner has not even given notice to contractors nor made
them parties to the proceedings in spite of repeated re-
quests made by the Corporation. Counsel for the Union of
Workmen, however, contended that under the provisions of the
Contract Labour (Regulation and Abolition) Act, 1970 the
Corporation being the principal employer has to maintain
list of workers; that it has failed to produce such list
and, therefore, it cannot throw the burden on the contrac-
tors to prove the case.
We have carefully perused the Commissioner’s order and
also the order of the High Court. The total amount ordered
to be payable comes to about Rs.22,48,000 in respect of the
employees of depots namely: Udaipur, Jaipur, Ajmer, Badmer
and Sawai Madhopur. The Commissioner has also directed the
Divisional Officer, Jaipur to deposit the Provident Fund
Contribution i.e. Rs. 18,72,194 to the Fund being maintained
by the trustees of the establishment. It is indeed a large
amount for the determination of which the Commissioner has
only depended upon the lists furnished by the workers,
Union. It is no doubt true that the employer and contractors
are both liable to maintain registers in respect of the
workers employed. But the Corporation seems to have some
problems in collating the lists of all workers engaged in
depots scattered at different places. It has requested the
Commissioner to summon the contractors to produce the re-
spective lists of workers engaged by them. The Commissioner
did not summon the Contractors nor the lists maintained by
them. He has stated that the Corporation has failed to
produce the evidence.
The question, in our opinion, is not whether one has
failed to produce evidence. The question is whether the
Commissioner who is the statutory authority has exercised
powers vested in him to collect the relevant evidence before
determining the amount payable under the said Act.
It is of importance to remember that the Commissioner
while conducting an inquiry under section (7A) has the same
powers as are
758
vested in a Court under the Code of Civil Procedure for
trying a suit. The section reads as follows:
“S. 7(A) Determination of Moneys due from
Employer–
(1) The Central Provident Fund Commissioner,
any Deputy Provident Commissioner or any
Regional Provident Fund Commissioner may, by
order determine the amount due from any em-
ployer under any provision of this Act (the
scheme or the Family Pension Scheme or the
Insurance Scheme as the case may be) and for
this purpose may conduct such inquiry as he
may deem necessary.
(2) The Officer conducting the inquiry under
sub-section (1) shall, for the purposes of
such inquiry, have the same powers as are
vested in a Court under the Code of Civil
Procedure, 1908, for trying a suit in respect
of the following matters, namely:
(a) enforcing the attendance of any person or
examining him on oath;
(b) requiring the discovery and production of
documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of
witnesses.
and any such inquiry shall be deemed to be a judicial pro-
ceeding within the meaning of Sections 193 and 228, and for
the purpose of Section 196 of the Indian Penal Code.”
It will be seen from the above provisions that the
Commissioner is authorised to ‘enforce attendance in person
and also to examine any person on oath. He has the power
requiring the discovery and production of documents. This
power was given to the Commissioner to decide not abstract
questions of law, but only to determine actual concrete
differences in payment of contribution and other dues by
identifying the workmen. The Commissioner should exercise
all his powers to collect all evidence and collate all
material before coming to proper conclusion. That is the
legal duty of the Commissioner. It would be failure to
exercise the jurisdiction particularly when a party to the
proceedings requests for summoning evidence from a particu-
lar person.
759
We, therefore, allow the appeal and reverse the order of
the Commissioner and that of the High Court. The matter
stands remitted to the Commissioner to dispose it of afresh
and in accordance with law and in the light of the observa-
tion made.
The parties shall appear before the Commissioner to
receive further orders on December 12, 1989. The Commission-
er, shall dispose of the matter within three months thereaf-
ter.
N .P.V. Appeal
allowed.
760