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SCA/9004/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9004 of 2011
=====================================
LAO
MORE BUSCUITS PVT. LTD. - Petitioner(s)
Versus
ASSISTANT
P.F. COMMISSIONER - Respondent(s)
=====================================
Appearance
:
MR DM AHUJA for Petitioner(s) :
1,
None for Respondent(s) :
1,
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 30/08/2011
ORAL ORDER
1.0 Often
it is felt that howsoever good may be the intention of the
legislature and howsoever benevolent may the attempt on the part of
the authorities, there are always people like the petitioner who can
negative all the benevolent legislations and the benevolent actions
of the authorities. This is one such case.
2.0 In
this case, inquiry under Section 7A of the Employees’ Provident Fund
and Miscellaneous Provisions Act, 1952 (hereinafter referred to as
‘the PF Act’) was held against M/s. Lao More Biscuits Pvt. Ltd.,
the petitioner herein. The inquiry was concluded on 31st
October 2003. Though it was not submitted by the learned advocate
Mr. DM Ahuja for the petitioner, during the course of the argument,
when the Court inquired as to what is the order, the learned advocate
for the petitioner submitted that by this order dated 31st
October 2003, the authority has decided ‘the issue of applicability
of the Act’ to the petitioner – Unit. This could not have been
in absence of deliberate attempt on the part of the petitioner to
shunt off the decision – the determination of moneys due from
employers. At one place the authority has recorded that:
“As
the recommendation of the Enforcement Officer was to cover the unit
as a contractor of another establishment M/s. Parle Products Pvt.
Ltd., Bombay, which was situated in the State of Maharashtra, a
reference was made by the office of the Regional Provident Fund
Commissioner Gujarat State, Ahmedabad (hereinafter referred to as
‘the Department’) for securing their no objection for coverage of
M/s. Lao More Biscuits Pvt. Ltd. by the Regional Provident Fund
Commissioner, Ahmedabad. In the meantime as per the
decision taken by the department to afford an opportunity to the unit
to represent their case regarding applicability of the Act to it, a
hearing was afforded under Section 7A of the Employees’
Provident Fund s & Miscellaneous Provisions Act, 1952 on
10/12/1992. Accordingly, summons under Section 7-A was issued to the
unit asking them to represent their case on 10/12/1992. On the said
date, Shri S.L. Phalguni attended the proceedings and requested for
an adjournment and the proceedings were adjourned
from time to time for 89 occasions. During the course
of proceedings Shri S.C. Desai, Advocate appeared on behalf of the
establishment and department was represented by different officers
from time to time depending upon the officer holding the charge of
the relevant sections. During the course of proceedings on different
dates, the Employees’ Provident Fund Organization has taken a
decision that the matter regarding applicability of a particular unit
will be decided by the Regional PF Commissioner in whose jurisdiction
the unit is situated. Accordingly though there was no reply received
from Regional PF Commissioner, Maharashtra, the code No. under the
Act was issued to the unit vide department letter No.
AM/25370/ENEIV/322 dated 24.7.1995 extending the provisions of the
Act to the unit w.e.f. 9/1991 under the schedule head ‘Biscuits
Making Industries’. On receipt of the said letter the unit
has raised objection vide its application dated 16.9.1995 stating
that M/s. Lao More Biscuits Pvt. Ltd., Ahmedabad is not coverable
under the Employees’ Provident Funds and Miscellaneous Provisions
Act, 1952 as it is not completed 3 years from the date of set up.
The contention of the establishment communicated through various
letters as well as submissions made during the course of proceedings
under Section 7-A are…” (emphasis
supplied)
2.1 This
order dated 31st October 2003 was the subject matter of
appeal being ATA No. 305(5)2004 which came to be disposed of by order
dated 29th October 2010. The learned advocate for the
petitioner vehemently submitted that both the orders are contrary to
law and the petitioner be held to be entitled to the benefits of
Section 16(1)(d) of the PF Act, though, today, that section does not
find place on the Statute Book because it is already deleted with
retrospective effect from 22nd September 1997 by Act of
1998.
3.0 Having
perused the order passed by the authority under the PF Act and having
perused the order passed in appeal, the Court finds no substance in
the petition.
3.1 At
this juncture, the learned advocate for the petitioner placed
reliance on a decision of the Rajashthan High Court, Jaipur Bench in
the matter of Aditya Synthetics Pvt. Ltd. (M/s.) Vs. Union of
India, reported in RLW (Rajashthan) 2 (1993) 193. The learned
advocate for the petitioner submitted that this decision is relied by
the appellate authority against the petitioner, but, according to the
learned advocate for the petitioner, the said decision is in favour
of the petitioner.
3.2 Taking
into consideration the age of the litigation and the way it is
prolonged getting adjournments on 89 occasions, the petition is
dismissed without imposing any cost.
[
Ravi R. Tripathi, J. ]
hiren
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