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SCA/10739/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10739 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JUNAGADH
GYMKHANA - Petitioner(s)
Versus
ASSISTANT
PROVIDENT FUND COMMISSIONER & 1 - Respondent(s)
=========================================================
Appearance
:
MR
BT RAO with MR SM SOJATWALA
for
Petitioner(s) : 1,
MS E.SHAILAJA for Respondent(s) : 1,
NOTICE
UNSERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 05/09/2011
ORAL
JUDGMENT
Heard learned Advocate for the
petitioner.
The matter requires consideration.
2. RULE. Learned Advocate
Ms.E.Shailaja waives service of Rule on behalf of the respondent.
At the request of learned Advocate
for the petitioner, the matter is taken up for final hearing, to
which learned Advocate for the respondent has no objection.
3. The matter is in a very narrow
compass. The question is as to whether the petitioner –
M/s.Junagadh Gymkhana ever employed 20 persons so as to see that the
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952
(hereinafter referred to as, “the said Act”) becomes
applicable. Clause-(b) of sub-section (3) of Section-1 of the Act
provides for applicability of the Act which reads as under:-
“to any other establishment
employing [twenty] or more persons or class of such establishments
which the Central Government may, by notification in the official
gazette, specify in this behalf:”.
4. Learned Advocate for the
petitioner invited attention of the Court to page No.71. It is order
dated 27.01.2004 passed by the Assistant Provident Fund Commissioner.
It is specifically mentioned in para-5 (unnumbered) of the order
that:-
“The documents available in the
file are perused. On going through the records it is observed that
the establishment was covered on the basis of AEO’s report
dated 20.03.2003.”
(emphasis supplied)
4.1 Learned Advocate for the
petitioner submitted that this report was never made available to the
petitioner until a specific order was obtained from the appellate
Tribunal.
4.2 Learned Advocate for the
petitioner submitted that though relevant documents were produced
before the authority, the authority refused to look into the same on
the ground that, ‘when opportunity was given to the petitioner, the
petitioner did not avail that opportunity and therefore, authority
closed its eyes to the documents produced by the petitioner’.
4.3 Earlier, a Review Application
was filed, but that application was filed on plain paper and hence,
it was returned by saying that, ‘Refused. To be filed only in a
prescribed formate’. When the application was filed in a prescribed
formate, it was rejected by the following order:-
“In view of the said provision
of the Act, I have examined the review application submitted by
establishment and have gone through the order passed under section 7A
and observed that the establishment has not submitted any new matter
or evidence which may cause consideration of the review of the said
7A order. The establishment was provided the opportunity to produce
the documentary evidence for deciding the review application for
hearing the matter under Section 7B. But the representative failed
to produce any documentary evidence except affidavits from the
employees and from the establishment which are not sufficient to
review the case. Moreover, the review application in Form-9 was
received after the stipulated time limit of forty five days from the
date of making such order.”
5. If the authority had taken a
little pragmatic approach and had given an opportunity to the
petitioner-establishment, the matter would not have been required to
be brought up to this Court.
6. On perusal of the documentary
evidence, produced, i.e. ‘Wage Register’, names of two persons,
viz.Mr.J.H.Vaja and Mr.P.K.Makwana are appearing twice. Only if
these names are counted twice, the number reaches to magic figure of
20 (twenty), otherwise the number of workers remains only only 18
(eighteen).
6.1 This Court sees no reason for
the authorities to have taken such an adamant stand in the matter and
to refuse to look to the evidence, even when it is brought to their
notice. It is true that Provident Fund Act is meant for the benefits
of the workers, but it cannot be applied to an establishment which is
not fulfilling the required conditions prescribed under the Act.
7. On perusal of the papers –
Wage Register and affidavit and the provisions of law, this Court is
of the opinion that the authority as well as the appellate Tribunal
have committed error in holding that the Act is applicable to the
petitioner-establishment.
8. In the result, the petition
succeeds and the same is allowed. Orders dated 27.01.2004 and
03.05.2010 are quashed and set aside. Rule is made absolute. No
costs.
(Ravi
R.Tripathi, J.)
*Shitole
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