IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6842 of 2010
Veerayatan, Rajgir
Versus
The Union of India & Anr.
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03. 20.10.2011 Mr. Alok Kumar Sinha, learned counsel for the
petitioner is present.
A prayer has been made on behalf of Mr. Bhupendra
Kumar Verma, learned counsel appearing on behalf of the
respondent Provident Fund Organization and its authorities for
adjournment.
The writ petition has been filed questioning the order
dated 19.2.2010 passed by the Regional Provident Fund
Commissioner, Bihar, Patna in purported exercise of power vested
under Section 7A of the Employees Provident Fund and
Miscellaneous Provisions Act, 1952 (hereinafter referred to as the
‘Act’) and the Scheme framed thereunder, as contained in
Annexure-1, whereby the respondent Commissioner while
purporting to act in pursuance of the order dated 25.11.2008 placed
at Annexure-7, whereby the act was made applicable on the
petitioner, has initiated assessment proceedings for determination
of the dues for the anterior period being March, 1972 until
1.4.2008, from which date the Act was made applicable on the
petitioner.
The case of the petitioner in brief is that the respondent
authorities under the powers vested under the Act had initiated a
similar proceedings as back as in the year 1996 and considering the
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response filed on behalf of the petitioner, the proceedings initiated
under Section 7A of the Act was dropped by order dated 22.7.1996
placed at Annexure-3 to the writ petition, inter alia, on grounds of
the petitioner being a charitable institution. In the circumstances
aforesaid, the Act was held not applicable on the petitioner’s
establishment. While the matter rested at that stage a complaint
was filed on behalf of the Veerayatan Employees Union on
30.5.2008 i.e. after a lapse of almost 12 years making a complaint
of deprivation of their rights flowing under the Act by the
petitioner establishment. It is not in dispute that the earlier
proceedings which culminated in the order dated 22.7.1996 was
neither reviewed by the respondent Organization nor any appeal was
filed and thus has become conclusive and binding on the parties.
Following the complaint dated 30.5.2008 a fresh proceeding was
initiated under Section 7A of the Act and the petitioner was directed
to respond to the same by letter dated 27.8.2008 as contained in
Annexure-5. The petitioner while responding to the notice as
contained in Annexure-5 filed a detailed response mentioning
therein that a similar proceeding under the Act having been initiated
was dropped by order dated 22.7.1996 holding the Act not
applicable on the petitioner and which order continues to remain in
force and has neither been modified nor set aside by a superior
authority under the Act. However, considering the grievance of the
employees the petitioner voluntarily accepted the applicability of the
Act with effect from 1.4.2008. In the circumstances aforesaid, the
Assistant Provident Fund Commissioner vide coverage order dated
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25.11.2008 held the Act applicable on the petitioner’s
establishment with effect from 1.4.2008 and by a stipulation made
in paragraph-9 thereof required the petitioner to make payment of
arrears with effect from 1.4.2008. Learned counsel for the petitioner
submits that the petitioner in compliance of the coverage order as
contained in Annexure-7 has started compliance in terms of the
provisions of the Act and the Scheme framed thereunder and that
the position is not in dispute. It so appears that following the
coverage order and voluntary acceptance by the petitioner, a second
complaint was made by the workers Union on 20.10.2009
requesting the Regional Provident Fund Commissioner to hold that
the workers employed by the petitioner would be entitled to the
benefits arising under the Act with effect from their respective date
of appointment.
It is the complaint of the petitioner that the respondent
Regional Provident Fund Commissioner by the impugned notice
dated 19.2.2010 proceeding mechanically on the complaint filed by
the workers Union has directed remittance of contribution by the
petitioner under the Act and the Scheme framed therein with effect
from March, 1972 until 1.4.2008 being the date from which the
petitioner had voluntarily accepted the applicability of the Act.
Learned counsel for the petitioner makes a very short submission. It
is contended that the earlier proceeding initiated under Section 7A
of the Act having culminated in an order dated 22.7.1996,
whereunder, by a quasi judicial determination of the issue, the
Assistant Provident Fund Commissioner had held the Act not
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applicable on the petitioner establishment, considering its activities
being of a charitable character and the said order not having been
upset by a superior statutory authorities, there lies no occasion for
the Regional Provident Fund Commissioner to have preponed the
applicability of the Act from March, 1972 to 1.4.2008 in absence of
any determination in the coverage order and which is unsustainable,
in teeth of the order dated 22.7.1996 as well as in violation of the
statutory provisions.
Let a comprehensive counter affidavit be filed on behalf
of the respondent organization in the light of the averments made in
the writ petition.
As prayed, put up on 17.11.2011 retaining its position.
Until further orders of this Court, the proceedings
initiated by the Regional Provident Fund Commissioner pursuant to
the notice dated 19.2.2010 as contained in Annexure-1 shall remain
stayed.
(Jyoti Saran, J.)
S.Sb/-