IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
THURSDAY,
THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942
WP(C).No.17507 OF 2016(K)
PETITIONER:
EMPLOYEES PROVIDENT FUND ORGANIZATION
REPRESENTED BY ASSISTANT PROVIDENT FUND
COMMISSIONER(LEGAL), SUB-REGIONAL
OFFICE,BHYAVISHYANIDHI BHAVAN, P.B.NO.1895,KALOOR,
COCHIN-682 017.
BY ADVS.
DR.S.GOPAKUMARAN NAIR (SR.)
SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND
ORGANISATION
RESPONDENT:
M.S. RAVEN BECK SOLUTIONS (INDIA) LTD
"RAVENBECK HOUSE", CHETTICHIRA,SUBHASH CHANDRA BOSE
ROAD, VYTTILA (PO), KOCHI-682 019, REPRESENTED BY
THE MANAGING DIRECTOR.
R1 BY ADV. SRI.PAUL ANTONY MANIAMKOT
R1 BY ADV. SRI.K.K.SATHISH
THIS
WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.10.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.17507 OF 2016(K)
2
JUDGMENT
Dated this the 15th day of October 2020 By this
petition, petitioner, the Employees Provident Fund Organization, through its,
Assistant Provident Fund Commissioner (legal) is challenging the order dated
23.01.2009 (Ext.P4), passed by the Presiding Officer, Employees Provident Fund
Appellate Tribunal under the Employees Provident Fund and Miscellaneous
Provisions Act, 1952 (for the sake of brevity, EPF Act). By this impugned
order, the Appellate Tribunal has been pleased to quash and set aside, the
order dated 06.12.2007 (Ext.P1), passed by the Assistant Provident Fund
Commissioner (Enforcement), Kochi, whereby, the said Authority, in exercise of
the powers under Section 7A of the EPF Act, has been pleased to
determine an amount of Rs.51,65,660/- to be due from the 1 st Respondent -
Establishment, towards the statutory EPF contributions for the period from
03/2004 to 03/2006.
2. Heard the learned counsel appearing for the
petitioner, at sufficient length of time. He drew my attention to the impugned
order passed by the Appellate Tribunal, so also the order passed by the
WP(C).No.17507 OF 2016(K) Assistant Provident Fund Commissioner (Ext.P4
and Ext.P1) and argued that the impugned order is totally illegal and contrary
to the settled principles of law and as such, needs to be quashed and set
aside. The learned counsel for the petitioner relied on the judgment of the
Hon'ble Apex Court in the matter of Regional Provident Fund Commissioner (II),
West Bengal and Others Vs. Vivekananda Vidyamandir and Others, reported in 2019
KHC 6257 and submitted that whatever is payable in all concerns and is earned
by all permanent employees is included in basic wages for the purpose of
assessing contribution payable to the Provident Fund under Section 6 of
the EPF Act. It is urged that allowances such as house-rent allowance, Uniform
allowances, washing allowance, traveling allowances and food allowances were as
such liable to be included in basic wages for assessment and deduction towards
provident fund contributions. By drawing my attention to the impugned order of
the Appellate Tribunal, it is submitted that the learned Appellate Tribunal
committed error of law, by allowing the Appeal, despite holding that intention
of Legislature appears to be to include all emoluments, other than those
WP(C).No.17507 OF 2016(K) which are specifically excluded.
3. By placing reliance on judgment of Hon'ble Patna
High Court in the matter of State of Bihar Vs. Bipat Gope and Others reported
in 1961 Criminal Law Journal 829 = Manu/BH/0064/1961, it is argued that after
admission of the petition for final hearing, the question of delay, if any
cannot be considered by the Court. The learned counsel for the petitioner
further argued that the petitioner is authorised by the resolution passed by
the Provident Fund Organization, authorizing the Assistant Provident Fund
Commissioner (legal) to institute, file and conduct, all civil and criminal
proceedings and therefore, the petition is maintainable.
4. As against this, the learned counsel for the
respondent/employer - establishment, vehemently opposed the petition by
contending that the petition suffers from inordinate delay and latches and
therefore, the same is not maintainable. By drawing my attention to the
provisions of Section 7L (4) of the EPF Act, the learned counsel
argued that the writ petition is not maintainable and the remedy if any, is
that of filing of Review Petition before the WP(C).No.17507 OF
2016(K) Appellate Tribunal. It is further urged that the petitioner has no
locus standi to file and maintain the petition in view of the judgment of the
Hon'ble Division Bench of the Culcutta High Court in the matter of the Regional
Provident Fund Commissioner Vs. Employees Provident Fund Appellate Tribunal,
reported in 2015 (1) KLT SN 28. It is further urged that the authority under
the Provident Fund Commissioner was duty bound to grant reasonable opportunity
to the employer to represent his case. As no such opportunity was granted, the
Appellate Tribunal was right in allowing the Appeal filed by the employer.
5. I have considered the submissions so advanced
and perused the materials placed before me. The order of the quasi judicial
authority is impugned in this petition. It needs to be noted that the High
Court under Article 227 can neither review nor re-appreciate the
evidence upon which determination of the Tribunal purports to be based or to
correct errors of fact. The High Court cannot substitute its own decisions if,
decisions of Sub-Ordinate Courts or Tribunals is within limits of law. However,
interference is called, when such WP(C).No.17507 OF 2016(K) decisions of
the Tribunal results in grave miscarriage of justice or flagrant violation of
law.
6. It hardly needs to mention that the Employees
Provident Fund Act is a beneficial piece of Legislation. If two
interpretations are possible, then by construing such statute, the Court should
lean in favour of the interpretation which is beneficial to the subject under
such welfare Legislation. Such statute needs construction to ensure that
benefit thereof goes to the employees. Section 5 of the EPF Act deals
with framing of a scheme by the Central Government for employees or for any
class of employees as well as creation of a fund and scheme to be administered
by the Central Board of Trustees constituted under Section 5A of the
Act. The Central Board of Trustees are required to administer the fund vested
in it in such a manner as may be specified in the scheme. Thus, Employees
Provident Fund Organization has fiduciary duty towards the subject of the Act.
7. The employer under the EPF Act has a
statutory obligation to deduct the specified percentage of contribution from
employees salary and make matching contribution in terms of provisions of
WP(C).No.17507 OF 2016(K) Section 6 of the said Act. The entire
amount is thereafter required to be deposited in the fund within 15 days of
such collection. Section 6 of the EPF Act speaks about contribution
of specified percentage of basic wages, dearness allowance and retaining
allowance. Section 2(b) of the EPF Act defines the term basic wages
thus:
(b)
"basic wages" means all emoluments which are earned by an employee
while on duty or on leave or on holidays with wages in either case in
accordance with the terms of the contract of employment and which are paid or
payable in cash to him, but does not include--
(i) the
cash value of any food concession;
(ii) any
dearness allowance (that is to say, all cash payments by whatever name called
paid to an employee on account of a rise in the cost of living), house-rent
allowance, overtime allowance, bonus commission or any other similar allowance
payable to the employee in respect of his employment or of work done in such
employment;
(iii) any
presents made by the employer;
8. Section 6 which deals with
contributions payable by the employer to the fund reads thus:
"6. Contributions and matters which may be
provided for in Schemes.-- The contribution which shall be paid by the employer
WP(C).No.17507 OF 2016(K) to the Fund shall be ten per cent of the basic
wages, dearness allowance and retaining allowance (if any) for the time being
payable to each of the employees (whether employed by him directly or by or
through a contractor)], and the employees' contribution shall be equal to the
contribution payable by the employer in respect of him and may, if any employee
so desires, be an amount exceeding ten per cent of his basic wages, dearness
allowance and retaining allowance (if any), subject to the condition that the
employer shall not be under an obligation to pay any contribution over and
above his contribution payable under this section]: [Provided that in its
application to any establishment or class of establishments which the Central
Government, after making such inquiry as it deems fit, may, by notification in
the Official Gazette specify, this section shall be subject to the modification
that for the words "ten per cent.", at both the places where they
occur, the words "twelve per cent" shall be substituted:] Provided
further that where the amount of any contribution payable under this Act involves
a fraction of a rupees, the Scheme may provide for the rounding off of such
fraction to the nearest rupee, half of a rupee or quarter of a rupee.
[Explanation 1].-- For the purposes of this [section], dearness allowance shall
be deemed to include also the cash value of any food WP(C).No.17507 OF
2016(K) concession allowed to the employee. Explanation 2.--For the
purposes of this section, "retaining allowance" means an allowance
payable for the time being to an employee of any factory or other establishment
during any period in which the establishment is not working, for retaining his
services.
9. It is thus clear that the basic wages of an
employee comprises of all emoluments which are earned by him while on duty or
on paid leaves/holidays.
10. Adverting to the facts of the instant case, it
is seen that, the respondent establishment is undisputedly covered under
the EPF Act and the Enforcement Officer of the Provident Fund
Organization found that the Provident Fund contribution on unrealistic monthly
wages of the employees was being deposited with the Employees Provident Fund.
It was prima facie found that the respondent establishment was only
contributing a fraction of actual basic wages paid to its employees and a major
chunk was being kept out for the purpose of contribution payable to the
Provident Fund by classifying it into different kind of allowances.
Accordingly, the competent officer under the EPF Act initiated the
enquiry under Section 7A and summons came to be issued WP(C).No.17507
OF 2016(K) to the respondent establishment for determining the outstanding
dues of Employees Provident Fund for the period from March 2004 to March 2006
on the allowances which were not subjected to any Provident Fund Contribution.
The statement of such allowances which were not made subjected to any Provident
Fund Contribution towards Employees Provident Fund came to be annexed to the
summons.
11. In response to the summons for determination of
amount due from the respondent establishment towards contribution to Provident
Fund, the employer and authorised representatives of the respondent appeared
before the Assistant Provident Fund Commissioner (Enforcement). Prolonged
enquiry came to be conducted from time to time and even adjournments as prayed
by the respondent employer came to be granted by the authority. The
respondent/establishment had put up its stand before the Assistant Provident
Fund Commissioner (Establishment) in following words.
"Due
to the heavy competitive nature of security industry and various inherent
problems faced by the organizations like High Labour Turnover, presence of
large number of unorganized security agencies we are operative at
WP(C).No.17507 OF 2016(K) a low margin. We are also facing a problem of
bearing the compensation for any theft, loss or damages in the worksite. This
is causing our company to face serious financial crisis. But even amidst these
problems we are in the process of increasing the basic wages for all new
recruits and existing staff. We request you to kindly consider the information
provided and take a favourable decision which would not further weaken our
already deteriorating financial position."
12. After hearing the employer/authorised
representative of the respondent establishment, the Assistant Provident Fund
Commissioner (Establishment) came to the conclusion that the amount classified
as basic wages in each month comes to only 35% of the gross wages and the
various allowances put together far exceeds the basic wages. The said authority
while passing the order under Section 7A of the EPF Act has given the
following finding.
"From
the above, it is crystal clear to my mind that the classification of the total
wages paid to the employees in the different so called "Excluded
Allowances" leaving only approximately 1/3rd of the amount to be classed
as "Basic Wages"
for each employee for the purpose of the EPF
contribution is nothing but a subterfuge on the part of the employer to
illegally reduce his WP(C).No.17507 OF 2016(K) statutory EPF liability by
adopting a separate nomenclature for part of the wages paid to his employees
while submitting the returns under the EPF Act."
13. With these observations, it was held that
various so called allowances classified by the respondent employer are nothing
but basic wages as defined under section 2b of the EPF Act and the
employer is liable to make the payment of Employees Provident Fund on these
amounts. Accordingly, the Assistant Commissioner of Provident Fund
(Enforcement) vide order dated 06.12.2007 (Ext.P1) determined the amount of
Rs.51,65,660/- to be due and payable by the respondent - establishment towards
statutory Employees Provident Fund contribution for the for the period from
March 2004 to March 2006. It is not disputed by the parties before this Court
that house rent allowance, uniform allowance, washing allowance, food allowance
and traveling allowance, as such came to be added to the basic wages by the
Assistant Provident Fund Commissioner (Establishment) while passing the order
under Section 7A of the EPF Act for assessment and deduction of Statutory
Employees Provident Fund Contribution and that is how the figure of 51,65,660/-
came to be arrived at as the WP(C).No.17507 OF 2016(K) amount due from the
respondent - establishment towards balance contribution to Provident Fund
payable by it.
14. Feeling aggrieved by this order under Section
7A of the EPF Act, the respondent-establishment has preferred an appeal
under Section 7I of the said Act. A perusal of grounds of appeal
makes it clear that the respondent-establishment has urged before the Appellate
Tribunal that uniform allowance, washing allowance, food allowance and
traveling allowance etc is being paid by it to all its employees uniformly
across the board. The respondent-establishment, in its appeal contended that it
has no transport facility and therefore it pays transport allowance to all its
employees. The security personnel needs uniform and therefore, uniform
allowance is paid to all employees. In other words, it was not the contention
of the respondent - establishment that allowances such as uniform allowance,
washing allowance, food allowance and traveling allowance were being paid to
only such employees who availed the opportunity of these allowances, linked to
any incentives for getting more output.
15. The Appellate Tribunal heard both sides. The
Appellate WP(C).No.17507 OF 2016(K) Tribunal relied on the judgment of the
Hon'ble Apex Court in the matter of Bridge and Roof Co. (India) Ltd. V.
Union of India reported in AIR 1963 SC 1474, so also other judgments and
came to the following conclusion in paragraph 11 and 12 of the impugned
judgment.
"The
intention of the Legislature under the Act is that the contribution to the fund
should be made on basic wages, dearness allowance and retaining allowance as
defined under Section 2(b) & Section 6 of the Act. The
plain intention of the Legislature appears to be to include all emoluments
other than those, which are specifically excluded. I do not find any warrant to
interpret Section 2(b) of the Act, to include the allowances such as
house rent allowance, uniform allowance washing allowance, food allowance,
traveling allowance and over time allowances under the head of the definition
of term "Basic Wages" in the present appeal.
In view
of the above discussions, the impugned order suffers from infirmity and is
quashed. The appeal is allowed. Appeal file be consigned to record room. The
copy of the order be sent to both parties".
16. At this juncture it is apposite to quote the
relevant portion from the judgment of the Hon'ble Apex Court in the matter of
WP(C).No.17507 OF 2016(K) Vivekananda Vidyamandir (supra) wherein reliance
was placed on judgment in Bridge and Roof Co. (India) Ltd. It reads thus:-
9.
"Basic wage, under the Act, has been defined as all emoluments paid in
cash to an employee in accordance with the terms of his contract of employment.
But it carves out certain exceptions which would not fall within the definition
of basic wage and which includes dearness allowance apart from other allowances
mentioned therein. But this exclusion of dearness allowances finds inclusion
in Section 6. The test adopted to determine if any payment was to be
excluded from basic wage is that the payment under the scheme must have direct
access and linkage to the payment of such special allowance as not being common
to all. The crucial test is one of universality. The employer, under the Act,
has a statutory obligation to deduct the specified percentage of the
contribution from the employee's salary and make matching contribution. The
entire amount is then required to be deposited in the fund within 15 days from
the date of such collection. The aforesaid provisions fell for detailed
consideration by this Court in Bridge and Roof (supra) when it was observed as
follows:
7. The
main question therefore that falls for decision is as to which of these two
rival contentions is in consonance WP(C).No.17507 OF 2016(K) with Section
2(b). There is no doubt that "basic wages" as defined therein means
all emoluments which are earned by an employee while on duty or on leave with
wages in accordance with the terms of the contract of employment and which are
paid or payable in cash. If there were no exceptions to this definition, there
would have been no difficulty in holding that production bonus whatever be its
nature would be included within these terms. The difficulty, however, arises
because the definition also provides that certain things will not be included
in the term "basic wages", and these are contained in three clauses.
The first Clause mentions the cash value of any food concession while the third
Clause mentions that presents made by the employer. The fact that the
exceptions contain even presents made by the employer shows that though the
definition mentions all emoluments which are earned in accordance with the
terms of the contract of employment, care was taken to exclude presents which
would ordinarily not be earned in accordance with the terms of the contract of
employment. Similarly, though the definition includes "all
emoluments" which are paid or payable in cash, the exception excludes the
cash value of any food concession, which in any case was not payable in cash.
The exceptions therefore do not seem to follow any logical pattern which would
be in consonance with the main WP(C).No.17507 OF 2016(K) definition.
8. Then
we come to Clause (ii). It excludes dearness allowance, house-rent allowance,
overtime allowance, bonus, commission or any other similar allowance payable to
the employee in respect of his employment or of work done in such employment.
This exception suggests that even though the main part of the definition
includes all emoluments which are earned in accordance with the terms of the
contract of employment, certain payments which are in fact the price of labour
and earned in accordance with the terms of the contract of employment are
excluded from the main part of the definition of "basic wages". It is
undeniable that the exceptions contained in Clause (ii) refer to payments which
are earned by an employee in accordance with the terms of his contract of
employment. It was admitted by counsel on both sides before us that it was
difficult to find any one basis for the exceptions contained in the three
clauses. It is clear however from Clause (ii) that from the definition of the
word "basic wages" certain earnings were excluded, though they must
be earned by employees in accordance with the terms of the contract of
employment. Having excluded "dearness allowance" from the definition
of "basic wages", Section 6 then provides for inclusion of
dearness allowance for purposes of contribution. But that is clearly the result
of the specific provision in Section 6 which lays down that
contribution shall be 6-
1/4 per centum of the basic wages, dearness
allowance and WP(C).No.17507 OF 2016(K) retaining allowance (if any). We
must therefore try to discover some basis for the exclusion in Clause (ii) as
also the inclusion of dearness allowance and retaining allowance (for any) in Section
6. It seems that the basis of inclusion in Section
6 and exclusion in Clause (ii) is that whatever is payable in all concerns
and is earned by all permanent employees is included for the purpose, of
contribution under Section 6, but whatever is not payable by all
concerns-or may not be earned by all employees of a concern is excluded for the
purpose of contribution. Dearness allowance (for example is payable in all
concerns either as an addition to basic wages or as a part of consolidated
wages where a concern does not have separate dearness allowance and basic
wages). Similarly, retaining allowance is payable to all permanent employees in
all seasonal factories like sugar factories and is therefore included in Section
6; but house-rent allowance is not paid in many concerns and sometimes in the
same concern it is paid to some employees but not to others, for the theory is
that house-rent is included in the payment of basic wages plus dearness
allowance or consolidated wages. Therefore, house-rent allowance which may not
be payable to all employees of a concern and which is certainly not paid by all
concern is taken out of the definition of "basic wages", even though
the basis of payment of house-rent allowance where it is paid is WP(C).No.17507
OF 2016(K) the contract of employment. Similarly, overtime allowance
though it is generally in force in all concerns is not earned by all employees
of a concern. It is also earned in accordance with the terms of the contract of
employment; but because it may not be earned by all employees of a concern it
is excluded from "basic wages". Similarly, commission or any other
similar and other allowances is excluded from the definition of "basic
wages" for commission and other allowances are not necessarily to be found
in all concerns; nor are they necessarily earned by all employees of the same
concern, though where they exist they are earned in accordance with the terms
of the contract of employment. It seems therefore that the basis for the
exclusion in clause (ii) of the exceptions in Section 2(b) is that
all that is not earned in all concerns or by all employees of concern is
excluded from basic wages. To this the exclusion of dearness allowance in
clause (ii) is an exception. But that exception has been corrected by including
dearness allowance in Section 6 for the purpose of contribution.
Dearness allowance which is an exception in the definition of "basic
wages", is included for the purpose of contribution by Section 6 and
the real exceptions therefore in Clause (ii) are the other exceptions besides
dearness allowance, which has been included through Section 6.
WP(C).No.17507 OF 2016(K)
10. Any variable earning which may vary from
individual to individual according to their efficiency and diligence will stand
excluded from the term "basic wages" was considered in Muir
Mills Co. Ltd., Kanpur V. Its Workmen Manu/SC/0244/1960: AIR 1960 SC 985
observing:
11. Thus understood "basic wage" never
includes the additional emoluments which some workmen may earn, on the basis of
a system of bonuses related to the production. The quantum of earning in such
bonuses varies from individual to individual according to their efficiency and
diligence; it will vary sometimes from season to season with the variations of
working conditions in the factory or other place where the work is done; it
will vary also with variations in the rate of supplies of raw material or in
the assistance obtainable from machinery. This very element of variation,
excludes this part of workmen's emoluments from the connotation of "basic
wages"..."
16. It is thus clear that where the wage is
universally, necessarily or ordinarily paid to all across the board, such
emoluments are Basic Wages. However, where the payment is available and
specially paid to those who avail of the opportunity is not Basic Wages. Any
payment made by the employer as a special incentive is not forming the part of
WP(C).No.17507 OF 2016(K) Basic Wage. However, it needs to be kept in mind
that house rent allowance is expressly excluded from the purview of the term
"Basic Wages" in view of provisions of Sub Section 2(b) of
the EPF Act. The dearness allowance, though excluded from Basic Wages
under Section 2(b), it is expressly included for the purpose of making
contribution by virtue of Section 6 of the EPF Act.
17. In the case in hand, I have quoted the stand of
the respondent - employer before the Assistant Provident Fund Commissioner
(Enforcement) while determining the amount payable towards the contribution of
Provident Fund in exercise of powers under Section 7A of the EPF Act.
Similarly contents of the grounds urged by the respondent - employer in its
Appeal before the Tribunal are also stated by me in the following paragraph. It
is not the stand of the respondent-employer that uniform allowance, washing
allowance, food allowance and traveling allowance is being paid by it to its
employees as a special incentive or that these allowance were variable and
linked to any incentive for getting more output from such employees. It is not
the stand of the respondent-establishment that these allowances were
WP(C).No.17507 OF 2016(K) not paid across the board to all employees. No
material was placed before the Assistant Commissioner of Provident Fund
(establishment) by the respondent-establishment to show that allowances such as
uniform allowance, washing allowance, food allowance and traveling allowance
were being paid to such employees who availed the opportunity and not to all
and sundry. On the contrary, in the memo of appeal, it was the stand of the
respondent-employer that these allowances are uniformly paid to all its
employees. This makes it clear that uniform allowance, washing allowance, food
allowance and traveling allowance forms the integral part of basic wages and as
such, the amount paid by way of these allowances to the employees by the
respondent-establishment were liable to be included in basic wages for the
purpose of assessment and deduction towards contribution to the Provident Fund.
Splitting of the pay of its employees by the respondent
- establishment by classifying it as payable for
uniform allowance, washing allowance, food allowance and traveling allowance
certainly amounts to subterfuge intended to avoid payment of Provident Fund
Contribution by the respondent-establishment. However, at the same
WP(C).No.17507 OF 2016(K) time, the only error of law which can be found
in the order under Section 7A of the EPF Act (Ext.P1) is that of inclusion of
HRA in basic wages for assessing and claiming deduction on that ground. Rest of
the allowances viz, uniform allowance, washing allowance, food allowance and
traveling allowance form the part of Basic Wages and were certainly liable to
be included in Basic Wages for the purpose of deduction of contribution towards
Provident Fund. The Appellate Tribunal has certainly committed error of law in
excluding these allowances for the purpose of deduction of Provident Fund
Contribution. The impugned order of the Appellate Tribunal to that extent
cannot be sustained and is liable to be interfered with.
18. So far as question of delay in filing the
petition is concerned, it needs to mention that the instant petition is already
admitted for final hearing by this Court on 18.05.2016. Once the petition is
admitted for final hearing, the question of delay cannot be gone into. The
learned counsel for the petitioner has rightly relied on judgment of the
Hon'ble Patna High Court in the matter of Bipat Gope and Others (supra).
Relevant portion from paragraph 15 of that judgment can be WP(C).No.17507 OF
2016(K) quoted with advantage.
"It is not necessary that there should be an
order condoning the delay. The mere admission of an application filed beyond 60
days indicates that the delay, if any, must have been condoned by the Bench
which admitted it. Moreover, once the Criminal Revision have been admitted, it
has to be decided on merits, and it cannot be thrown out simply on the ground
that it was filed beyond 60 days. The above view is amply supported by
decisions of this Court.
In Lalo Mahto V. Emperor MANU/BH/0157/1941, Varma,
J. held that, when the application has been admitted, the question of
limitation is not of much importance in a criminal revision about which no
limitation has been fixed by statute. In Bibi Zainab V. Anwar Khan MANU/BH/0181/1945,
a similar view has been taken by Pande, J., who has held that, once a petition
has been admitted by the Court, it has got to be considered on its merit, and
the plea of limitation does not apply, particularly when there is no period
prescribed by the statute for such application."
19. Thus, as the petition is already admitted for
final hearing by this Court in the year 2016, it cannot be dismissed on the
technical ground of delay in filing the petition, particularly when the relief
is sought for and on behalf of the employees by the Provident Fund
WP(C).No.17507 OF 2016(K) Organization, which is the Trustee of
vindicating the rights of the subjects of the welfare statute.
20. In the matter of the Regional Provident
Fund Commissioner V. Employee's Provident Funds Appellate Tribunal (Supra),
relied by the learned counsel for the respondent-establishment, it is held by
the Hon'ble Division Bench of Culcutta High Court that the Provident Fund
Commissioner, being Quasi Judicial Authority, cannot challenge the order passed
by the Appellate Authority reversing the order of the Quasi Judicial Authority,
because the said Quasi Judicial Authority is not a party to the lis. However,
in the case in hand, the Appellate Order is challenged by the Officer
concerned, who is authorized for this purpose by the Provident Fund
Organization and as such, it cannot be said that the petition as framed and
filed is not maintainable. Similarly, no merits can be found in the submission
of the learned counsel for the respondent that the writ petition is not
maintainable in view of provisions of Section 7L of the EPF Act which
gives finality to the order made by the Appellate Tribunal. The fact that the
order of the Tribunal disposing the Appeal cannot be questioned in any Court of
WP(C).No.17507 OF 2016(K) law, makes the instant Writ Petition
maintainable. No other alternate statutory remedy is available for challenging
the Appellate Order. It was faintly argued that there was no reasonable
opportunity of representation to the respondent/establishment in an enquiry
under Section 7A of the EPF Act. There is nothing on record to
substantiate such contentions.
21. In the result, the petition deserves to be
partly allowed with the following order:
1. The
impugned Order, Ext.P4, dated 23.01.2009 passed by the Employees Provident Fund
Appellate Tribunal, New- Delhi, allowing the Appeal is quashed and set aside.
2. The
order passed by the Assistant Provident Fund Commissioner (Enforcement) on
06.12.2007, Ext.P1 is confirmed, in so far as it relates to uniform allowance,
washing allowance, food allowance and traveling allowance.
3. The direction in the order at Ext.P1 passed by
the Assistant Provident Fund Commissioner (Enforcement) for inclusion of house
rent allowance in the Basic Wages for the WP(C).No.17507 OF
2016(K) purpose of assessment and deduction of contribution to Provident
Fund is quashed and set aside by maintaining the rest of the order.
With these observations and directions, the above
WP(C) stands finally disposed of.
Sd/-
A.M.BADAR
Nsd
JUDGE
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