WRIT PETITION None on 19 July 2006

1. The order of the Assistant Provident FundCommissioner, Regional Office, Kolkata dated June23, 2006 in connection with an enquiry underSection 7A of the Employees Provident Fund andMiscellaneous Provisions Act, 1952 and the order ofthe said authority dated July 19, 2006 on a reviewapplication filed under Section 7B of the 1952 Act isunder challenge in this writ petition at the instanceof Woodland Medical Centre Ltd.

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Mr. Banerjee, learned advocate appearing for thepetitioners submits that the order dated June 23,2006 is a non-speaking order. He further submitsthat the tests laid down by the Hon’ble SupremeCourt in the case of Food Corporation of India vs.Provident Commissioner & Ors. reported at 1990(1)SCC 68 was not complied with by the Assistant

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5. Provident Commissioner while passing the impugnedorders. He submits that the Assistant ProvidentCommissioner, by an order dated October 7, 2004,held that there is no amount due and payable fromthe writ petitioner for the period from 16[th] November,1995 to 31[st] January, 2004 but in the subsequentorder dated 23[rd] June, 2006, it has been held that asum of Rs.19,97,089/- is payable by the writpetitioner establishment for the period from April2002 to May 2005.

Mr. Prasad, learned advocate appearing for theProvident Fund Authority submits that the AssistantProvident Fund Commissioner after considering thematerials available on record determined the amountpayable by the writ petitioner establishment. Hefurther submits that the said authority also assignedcogent reasons while dismissing the reviewapplication filed by the writ petitioner.Heard the learned advocates for the parties andperused the materials placed.

It appears from the record that an enquiry wasconducted against the writ petitioner establishmentfor determination of dues for the period from16.11.1995 onwards under the Employees PensionScheme 1995 framed under the 1952 Act. Enquirieswere initiated separately for different periods for thepurpose of determination of the dues and it was

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observed in the said order that the establishmentstarted regular compliance under EPS 1995 witheffect from February 2004. The said order furtherrecords that the writ petitioner establishment hascleared the entire arrear towards pension fund alongwith interest.

However, from the order dated 23[rd] June, 2006 itappears that an enquiry under Section 7A wasinitiated for assessing the dues againstevasions/non-enrolment of the employees for EPF1995.

After going through the said order, this Court findsthat the authority held that the employer failed toextend membership under EPS 1995 to certainemployees varying from 126 for the month of April2002 to 151 for the month of May 2005.

Though the said order records that an enquiry washeld but the manner in which the report of suchenquiry was considered has not been indicated in thesaid order. That apart, when the authority afterverifying the records arrived at a finding in the orderdated 7.10.2004 that there is no dues from the writpetitioner establishment for the period November 16,1995 to January 31, 2004, this Court fails tounderstand as to how the same authority couldarrive at a conclusion that an amount ofRs.19,97,089/- is due from the writ petitioner

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Conclusion

establishment for the period from April 2002 to May2005. The order dated 7.10.2004 has been impliedlyset aside by the same authority which isimpermissible as an authority cannot sit in appealover its own decision. The said order dated23.06.2006 only records that on perusal of thesubmission of the employer and the department andafter applying mind to evidence on record, it isevident that the employer failed to extendmembership under EPS 1995 to certain employees.There is no proper appreciation of records by thestatutory authority while arriving at a conclusionthat a certain amount is due from theestablishment. Since the order is an unreasoned andnon-speaking order the same is liable to be set asideand quashed for such reason alone.

By the order dated July 19, 2006 the AssistantProvident Fund Commissioner rejected theapplication for review. This Court has already heldthat the order dated 23.06.2006 is liable to be setaside. Consequently the order passed on the reviewapplication is also liable to be set aside.The Hon’ble Supreme Court in Food Corporation ofIndia (supra) has held that the power is given to theCommisisoner under the 1952 Act to determine thecomplete actual differences in payment ofcontribution and other dues by identifying the

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13. workman. It was further observed therein that theCommissioner should exercise his power to collect allevidence and collate all materials before coming toproper conclusion. In the case on hand theProvident Fund Commissioner has passed the orderdated 23[rd] June, 2006 without identifying theworkman in respect of whom there may be dues fromthe writ petitioner establishment.

For all the reasons as aforesaid, the impugned ordersare set aside and quashed. The authority will be atliberty to proceed in accordance with law after givingan opportunity of hearing to the petitioner and anyother interested parties and pass a reasoned order inaccordance with law.

After this order was passed, the learned advocate forthe petitioner draws the attention of this Court to theorder dated 25[th] September, 2006 wherein thepetitioner establishment was directed to deposit theamount of Rs.10,00,000/- (rupees ten lacs only) as acondition for grant of interim order. After goingthrough the said order this Court finds that it wasrecorded in the said order that such payment shallbe without prejudice to the rights and contention ofthe parties and will be subject to the result of thewrit petition. Since this Court has set aside theimpugned orders, the Provident Fund Authority isdirected to refund such amount to the writ petitioner establishment within a period of three weeks fromdate of receipt of server copy of this order.

14. The writ petition stands disposed of. No Costs.

15. Urgent Photostat certified copy of this order, ifapplied for, shall be given to the parties asexpeditiously as possible on compliance of allnecessary formalities.applied for, shall be given to the parties asexpeditiously as possible on compliance of allnecessary formalities.

(HIRANMAY BHATTACHARYYA, J.)