Hindustan Steel Works Construction Ltd. vs Regional Provident Fund Commissioner-II (Damage) & Anr.

For the Petitioners : Mr. Arijit Chaudhuri, Sr.Adv. & Bar-at-law H.S.W.C.L. Mr. Arunava Ghosh, Advocate Mr. Soumya Majumdar, Advocate Mr. Ranajit Talukdar, Advocate Mr. Victor Chatterjee, Advocate

For the Respondent : Mr. Shiv Chandra Prasad P.F. Authorities

Amicus Curiae : Mr. Partha Sarathi Sengupta, Sr. Adv.

Judgment On : 21st December 2018

Rajasekhar Mantha, J.:-

1. The W.P. No. 26081 (W) of 2016 is directed against an order passed

under Section 7A of the, "Employees Provident Fund and

Miscellaneous Provisions Act of 1952." The facts relevant to the

instant case are as follows.

2. On the 16th of February 2009 proceedings under Section 7A of the

Employees' Provident Funds and Miscellaneous Provisions Act, 1952,

were initiated by way of show cause against the writ petitioner, 2

Hindustan Steel Works Construction Limited, a Govt. Company

engaged in the business of large scale construction activity.

3. The petitioner has been an exempted unit under Section 17 of the EPF

Act, 1952, read with paragraph 74 of the Scheme framed under the

said Act, since 17th November 1977.

4. The period of default for which the petitioner was charged was from

the year 1994 to 2005. The said enquiry was initiated on the basis of

complaints of contractors engaged by the petitioner and the Reports of

investigation conducted by the Assistant Provident Fund

Commissioner (APFC) and the Regional Provident Fund Commissioner

(RPFC), Bhilai. Some extracts from the said reports available in the

pleadings are set out hereinunder :-

"On verification of records, it was found that there was a practice of deduction of certain percentage of the Bills towards statutory obligation including EPF during the period 1995-96 to 2003-04 and the amount so deducted is still lying with HSCL.

....................

It was further found that the HSCL used to award two types of contractors namely PRW contractors and Job rate contractors. ...................................The total amount paid to the PRW contracts during 1995-96 to 2003-04 comes to Rs.70,30,42,208/- according to wages element (viz 86.7%) comes to Rs.60,95,37,594/-. Thus, the liability of EPF and other contribution and charges in respect of PRW is Rs.15,61,02,578/-. (Monthwise details enclosed).

Similarly, the total amount paid to Job rate contract during the period 1995-96 to 2003-04 comes to Rs.43,70,61.831/-. Accordingly, the wages element (viz (15%) comes to Rs.6,55,59,275/-. Thus, the liability of EPF and other contribution and charges in respect of Job rate contractors comes to Rs.1,67,29,730/-.

3

The total liability of M/s HSCL on account of EPF and other contribution and charges for the period 1995-96 to 2003-04 in respect of contractual workers comes to Rs.17,28,92,308/-.

(N.R.KALYANI) ASSISTANT PF COMMISSIONER"

5. Along with such report a statement issued by the Manager(Finance) of

the petitioner Company dated 25.07.2008 was also submitted by the

Authorities at Bhilai.

HSCL : BHILAI

CONTRACTORS PAYMENT FGOR THE PERIOD 1995-96 TO 2003-04

FINANCIAL OTHER THAN LABOUR ELEMENT LABOUR SUPPLY LABOUR ELEMENT LABOUR SUPPLY @ 15% @ 86.7% YEAR 001064

1995-96 53135369 7970305 75985484 65879413

1996-97 68277373 10241607 91545710 79370130

1997-98 59419965 8912995 60397853 52364938

1998-99 62892614 9433894 35474763 30756618

1999-00 71003834 10650576 61448744 53276062

2000-01 20190867 3028629 68208441 59136716

2001-02 26022146 3903320 96754528 83886175

2002-03 47994940 7199242 88073026 76359313

2003-04 28124723 4218707 125153659 108508223

437061831 65559275 703042208 609537588

LABOUR ELEMENT OF OTHER THAN LABOUR SUPPLY: 65559275

LABOUR ELEMENT OF LABOUR SUPPLY : 609537588

TOTAL LABOUR ELEMENT : 675096863

Sd/-

Manager (Finance)

HSCL Bhilai 4

6. The petitioner disputed that a sum of Rs.17,28,92,308/- was

deducted from the dues to the contractors. They stated that only a

sum of Rs.7.18 crores was deducted.

7. A summons dated 16th February 2009 came to be issued to the

petitioners U/S 7a of the EPF & MP Act 1952. In reply to the

summons the petitioners, by way of affidavit dated 16.11.2011 on self-

assessment, deposited Rs.4,28,88,245/- with authorities for the

period from 1994 till 2005. The said deposit was admittedly made on

the petitioner's own assessment and admission that the dues were in

the region of 17 odd errors.

8. The petitioner sought further time to produce records in respect of the

charged defaulted period by letter dated 21.03.2013.

9. In view of the failure on the part of the petitioner to produce records a

further summons was issued by the authorities on 06.01.2014.

10. During the period from 1994 till 2005 and from time to time

thereafter the writ petitioner was engaged in construction activity for

the Steel Plant at Bhilai belonging to the Steel Authority of India

Limited. In view of the large scale construction activity thereat, the

writ petitioners engaged a large number of Contractors who supplied

labour for such construction activity. It was found that about 190

contractors were engaged and about 15000 workmen were employed,

by the writ petitioner, "Principal Employer". 5

11. In course of the enquiry under Section 7A, a writ petition came to be

filed by the petitioners being WP No. 22389 (w) of 2014 against the

respondents, seeking stay of the 7A proceedings.

12. Against refusal of interim relief in such writ application, an appeal

was preferred to a Division Bench of this Court in A.S.T. No. 365 of

2014. The said appeal was disposed of by a judgment and order dated

13th August 2014. It was held in such judgment that the

responsibility for issuance of summons and enforcement of

attendance of witnesses for the purpose of identification of

beneficiaries of provident fund, rests on the Regional Provident Fund

Commissioner (RPFC) Kolkata, who was conducting the Section 7A

proceeding. It was further ordered in such judgment that the writ

petitioners shall furnish the names and particulars and complete

postal addresses of the contractors who need to be examined before

the RPFC to ascertain the beneficiaries and/or their dues under the

1952 Act. It was further ordered that the RPFC shall take steps under

the Act of 1956 to secure the attendance of the said contractors.

13. The writ petitioner furnished particulars of all contractors in terms of

the order of the Division Bench (Supra). Proceedings were resumed

and continued before the RPFC thereafter.

14. By a further order dated 22nd September 2014, the authorities

directed the writ petitioners to deposit a total sum of Rupees 11.54

crores as an interim measure, which according to the authorities was

a prima facie due. The writ petitioners challenged the said order by 6

way of a second WP No. 28651 (W) of 2014. The said writ petition was

admitted on the 9th October 2014 by a Coordinate Bench of this Court

granting liberty to the petitioner to deposit a sum of Rupees 5 crores

with a Nationalised Bank in a no lien account upon which deposit

coercive measures against the writ petitioner and its officers, were

restrained. Such deposit was made by the respondent.

15. After the aforesaid order and in view of the pendency of WP No. 28651

(W) of 2014, the petitioner moved an application before the authority

for stay of 7A proceedings till disposal of the writ application. The

said application was rejected. Against the said order of rejection CAN

10936 of 2014 was filed by the writ petitioner in WP 28651 (W) of

2014 with a prayer for stay of the said 7A proceedings before the

authorities. The said CAN was disposed of granting liberty to the

petitioner to seek clarification of the order dated 13th August 2014

passed by the Division Bench in AST 365 of 2014 (Supra).

16. On the 24th of November 2014 a Division Bench of this Court disposed

of the clarification application filed by the petitioner by directing the

parties to act strictly as per the order dated 13th August 2014. It was

recorded that full particulars of contractors were duly supplied by the

petitioner to the authorities.

17. Upon notice being issued as per the list supplied by the writ

petitioner, 149 contractors caused appearance before the RPFC and

submitted that since the matter was old they did not have any records

of any employees on their rolls for the period between 1994-2005. 7

18. The writ petitioner thereafter from time to time, made several

applications inter alia for stay of proceedings before the authority on

flimsy grounds. These applications appear to this Court to be an

attempt to delay of the 7A proceedings before the RPFC. The said

applications were filed on inter alia the grounds that (a) the

proceedings were not being conducted by the RPFC himself; (b) the

proceedings were contrary to established principles of quasi judicial

proceedings; (c) the writ petitioner was not in a position to supply

information as per the proforma of the RPFC; d) the 7973 work orders

relating to 151 contractors was sufficient for determining the total

amount paid to the contractors in question wherefrom the dues of the

petitioner can be determined; e) that the responsibility to produce

documents identifying the beneficiaries in question cannot be laid

entirely on the writ petitioners; f) that the 149 contractors cannot be

directed to furnish list of employees with their respective monthly

wages; g) that by a minutes of meeting dated 16th/17th April 2015 of

ACCs (Additional Zonal Provident Fund Commissioners) from all over

India, it was agreed that old proceedings shall not be revived and or

reinvestigated etc. Orders thereafter were passed on the 27th of July

2015 and 9th of September 2015 wherein submissions of the writ

petitioner were recorded and reports were once again called for from

the Enforcement Officers of the authorities.

19. The writ petitioner thereupon filed the instant writ petition wherein by

an order dated 3rd October 2016 the authorities were directed to 8

complete the 7A proceedings but not to give final effect to the same.

Yet another writ petitioner being W.P. 22038 (W) of 2016 was filed

challenging proceedings for damages and interest under Section 7Q

and under Section 14B of the said Act in which such proceedings were

stayed by a Co-ordinate Bench.

20. By final order dated 27th December, 2016, the respondent No.1 passed

final orders under Section 7A of the said Act of 1952, inter alia

holding that :-

"An amount of Rs.15,83,71,455/- for the period from 1995 to

2004as P.F. dues. According to the said order, the petitioner is

liable to pay the outstanding amount of Rs.11,54,83,210/- for

the said assessment period after deducting a sum of

Rs.4,28,88,245/- which the petitioner has deposited voluntarily.

No appeal was preferred by them against such order."The RPFC

proceeded in the absence of actual name and number of

workers engaged by the contractors on behalf of the writ

petitioner and applied the "best judgment principle" in arriving

at the figure based on the documents submitted by the writ

petitioner.

21. The writ petitioner challenges the said order on the following grounds:

a) That the Act and the scheme framed thereunder are beneficial

legislation meant to secure the future of an individual identified 9

employee. In the absence of having identified any such employee, no

assessment can be made by the RPFC.

b) By reason of the inordinate delay of over 12 years in assessment of PF

dues, the same has a killing effect on the process of assessment itself

and hence, the proceedings ought to have been dropped in terms of a

decision of the Zonal Additional Provident Fund Commissioners held

on 16th and 17th of April 2015;

c) That in various decisions the Employees Provident Fund Appellate

Tribunal has held in similar circumstances that proceedings under

Section 7A should be dropped and there should be no requirement for

a deposit of PF dues. The said decisions cited before the RPFC have

been ignored and hence, the impugned order is illegal.

d) That proper reasons have been supplied by the RPFC in passing the

order in question.

22. The writ petitioners placed reliance on a judgement of the Supreme

Court in RPFC Vs. K. T. Rolling Mills Private Limited reported in

1995(1) SCC Page 181. In the said judgment the Supreme Court in

Paragraph 4 had held as follows:-

"4. There can be no dispute in law that when a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of reasonableness. When this appeal was heard by us on 7-9-1994 and when this aspect of the matter came to our notice, we desired an affidavit from the Commissioner to put on record regarding the point of time when he came to know about 10

the default and to explain the cause of delay. Pursuant to that order, the Commissioner filed his affidavit on 10-11-1994, according to which the power of levying damages came to be delegated to the Commissioner by an order dated 17-10-1973. As, however, large number of establishments were in existence in the State of Maharashtra-the number of which in 1985 was 22,189 - and there was only one Regional Provident Fund Commissioner having power to levy damages, delay was caused in detection of the cases of belated payment. According to the affidavit, the default at hand was located on 19-4-1985 and the damages came to be levied by order dated 5-11-1986."

23. Based on the above the petitioners submit, that there has been

substantial delay on the part of the RPFC in taking stock of the failure

on the part of the writ petitioners to make PF deposits from 1994. It

is only in the year 2004 and 2005 that each contractor working under

the petitioner was given independent code members by the

authorities. That happened after the RPFC Chhattisgarh was

constituted. It is only then that the Contractors' Association informed

the PF Authorities that contribution towards PF and allied dues was

being deducted regularly from the dues payable to the contractors

since 1995, but not being deposited either in the trust account or with

the authorities.

24. It appears to this Court that, in substance the argument of the

petitioner is that a PF defaulter should be allowed to go scot free for a

situation created by its own misdemeanour. The situation being that

petitioner has failed to maintain records of workers engaged through

its contractor from 1995 to 2004. Hence, there are no identifiable

beneficiaries in whose favour the sums recovered under Section 7A

could be maintained or kept. Proceedings under Section 7A therefore 11

according to the petitioner stood frustrated and were liable to be

dropped.

25. With a view to address this paradox this Court appointed Sri Partha

Sarathi Sengupta, Learned Senior Advocate as Amicus Curiae. This

Court records its deepest appreciation for the pains taken by Mr.

Sengupta in researching and placing, a large number of judgments

relevant to the question set out hereinafter.

26. The Learned Amicus Curiae cited the following judgments:

(i) 1990 (1) SCC Page 68 - Food Corporation of India Vs. PF

Commissioner and others to the effect that the Commissioner should

exercise all his powers and collate all materials before him, to arrive

at a proper conclusion and that it was duty of the Commissioner to

summon and enforce attendance of witnesses. In the said case the

Commissioner did not summon contractors or the list maintained by

them despite a request from the FCI.;

ii) ESIC Vs. Harrison Malayalam Private Limited reported in 1993 (4)

SCC 361. In the said case it is clarified that under the Employees' State

Insurance Corporation Act of 1948 the obligation to pay contribution of

employees under a contractor rests eventually on the principal employer and

merely because there are no identifiable employees and the employment

does not exist anymore, or that the employees are not identifiable, would not

absolve the principal employer from making contribution to Provident Fund.

At Paragraph 3 the Hon'ble Supreme Court observed as follows:- 12

"3. We are afraid that the ground given by both the courts is not justifiable. Under the Act, it was the duty of the respondent- Company to get the necessary details of the workmen employed by the contractor at the commencement of the contract since the primary responsibility of payment of the contribution is on the principal employer. On the admitted fact that the respondent-Company had engaged the contractor to execute the work, it was also the duty of the respondent-Company to get the temporary identity certificates issued to the workmen as per the provisions of Regulations 12, 14 and 15 of the Employees' State Insurance (General) Regulations, 1950 and to pay the contribution as required by Section 40 of the Act. Since the respondent-Company failed in its obligation, it cannot be heard to say that the workers are unidentifiable. It was within the exclusive knowledge of the respondent-Company as to how many workers were employed by its contractor. If the respondent-Company failed to get the details of the workmen employed by the contractor, it has only itself to thank for its default. Since the workmen in fact were engaged by the contractor to execute the work in question and the respondent- Company had failed to pay the contribution, the appellant- Corporation was entitled to demand the contribution although both the contribution period and the corresponding benefit period had expired. The scheme under the Act for insuring the workmen for conferring on them benefits in case of accident, disablement, sickness, maternity etc. is distinct from the contract of insurance in general. Under the Act, the scheme is more akin to group insurance. The contribution paid entitles the workman insured to the benefit under the Act. However, he does not get any part of the contribution back if during the benefit period, he does not qualify for any of the benefits. The contribution made by him and by his employer is credited to the insurance fund created under the Act and it becomes available for others or for himself, during other benefit periods, if he continues in employment. What is more, there is no relation between contribution made and the benefit availed of. The contribution is uniform for all workmen and is a percentage of the wages earned by them. It has no relation to the risks against which the workman stands statutorily insured. It is for this reason that the Act envisages automatic obligation to pay the contribution once the factory or the establishment is covered by the Act, and the obligation to pay the contribution commences from the date of the application of the Act to such factory or establishment. The obligation ceases only when the Act ceases to apply to the factory/establishment. The obligation to make contribution does not depend upon whether the particular employee or employees cease to be employee/employees after the contribution period and the benefit period expire."

13

iii) A Division Bench Judgment of this Court reported in 1994 2 CHN

Page 75 Mantu Biri Factory Vs. RPFC was placed. In the said case

it was reiterated that the enquiry under Section 7A must be as per

the statute and comprehensive which process can be achieved only

upon identification of workers. In the said case, the contractors who

had not been summoned were directed to be issued notice and identify

the beneficiaries under the said Act. However, in the said case a

situation of non-availability of particulars of employees despite notice

to the contractors was not addressed. It was also observed that

Provident Fund is not a tax.

iv) Another Division Bench Judgment of this Court reported in 1998

(2) CLJ 242 was also placed where it was held at Paragraph 3 that it

was the responsibility of the authority to summon the contractors to

ascertain the particulars of the employees / beneficiaries. It was also

held that the PF Authorities are empowered to make an assessment

based on the evidence or documents available on records. In the said

case however the contractors in question were not in fact summoned

by the RPFC before arriving at any independent assessment.

v) To the same effect was cited the case of Chennai Petroleum

Corporation Limited Vs. EPFC reported in 2006 (109) FLR 1995.

In the said case decided by a Single Judge of the Madras High Court,

the RPFC did not summon any contractor despite being requested by 14

the employer. The same situation arose in the case of RPFC Vs.

Assam Biri Factories (P) Ltd. reported in 2006 (3) CLT Page 62.

vi) Learned Amicus Curiae also placed the case of HP State Forest

Corporation Vs. RPFC reported in (2008) 5 SCC 756 where the

Hon'ble Supreme Court in the peculiar facts of the said case had held

that if the employees in question are not identified, the employer

cannot be held liable after an inordinate delay of 16 years in the

initiation of the 7A proceedings as already stated. This Court finds

that the said judgment cannot be strictly treated as a binding

precedent as it was rendered in the particular facts of the case.

vii) A lot of stress had been laid by the Learned Amicus Curiae in the

decision of a Single Judge of Patna High Court in Raj Kumar Gupta

Vs. EPFC reported in 2013(139) FLR Page 207. In the said decision

the Single Judge had held that the PF Authorities cannot collect or

compel contributions to be made by the employer with regards to

faceless, nameless or non-identifiable workmen. In the said case the

Court had allowed refund of the money deposited. I am in respectful

disagreement with the said judgment.

27. Learned Amicus Curiae next relied upon the case of Bharat Heavy

Electricals Limited Vs. ESIC reported in (2008) 3 SCC 247

Paragraph 20 which would be very relevant in the instant case. The

said case was under the Employees State Insurance Act 1948.

Comparing the objects of the ESIC Act of 1948 and the EPFMP Act of

1952 the Hon'ble Supreme Court held as follows :- 15

"20. We, with respect to the learned Judges, fail to notice any significant difference in the purport and object of both the provisions. The purport and object of both the statutes, for all intent and purport, in our opinion, is the same. In the proceedings initiated under Section 45-A of the Act, an immediate employer or principal employer may also show that they are not liable to deposit any contribvution on behalf of the employees as the establishment in question did not come within the purview thereof. The purpose of the proceedings, both under the Act as also the Employees' Provident Funds Act, is to determine the amount due from any employer in respect of the employees under the statutory schemes. Both the Acts envisage compliance with principles of natural justice. The proviso appended to Section456-A of the Act provides for a statutory mandate of giving a reasonable opportunity of being heard."

28. It is therefore clear and settled law that the precedents under the

ESIC Act 1948 can be used to determine issues under the EPF & MP

Act of 1952. In the said case too, the PF Authorities did not give

opportunity of hearing to the petitioner with regard to the names and

other particulars of the contractors engaged.

29. Ld. Counsel for the petitioner did not wish to make further arguments

in view of the submission of the Learned Amicus Curiae.

30. Per contra Mr. Shiv Chandra Prasad, Learned Advocate for the PF

Authorities had submitted as follows: - That there is no period of

limitation prescribed under Section 7A of the Act. The concept of

"Principal Employer" is recognized at Paragraph 30 of the EPF Scheme

of 1952. Hence, the liability of the petitioner to pay the dues of

workers engaged by the contractors is a statutory duty and cannot be

avoided by the petitioner.

16

31. He further submitted that identification of employees cannot be a pre-

condition for proceedings under Section 7A and that the Supreme

Court has in various decisions held that identification of employees

under the Employees State Insurance Act 1948, is not mandatory for

the purpose of assessment of default by the principal employer.

32. He further submitted that the employer cannot take advantage of his

own wrong. He relied upon the following judgments.

1. AIR 1982 SC 1473 Para 7

2. 1993 (4) SCC 361

3. 19979 (4) SCC 573

4. AIR 1998 SC 688

5. 2010 LLR 684

6. 2009 (10) SCC 123

7. 2001 (1) LLJ 893

8. 1990 (1) LLJ 148 (Cal)

9. 2003 LLJ 223

10. 2004 (2) LLN 451 (Madras High Court)

11. 2007 (1) SCC 584.

33. The Court Analysis: - The petitioner was an exempted employer under

Section 17 of the said Act. Such exemption was being enjoyed by the

company since the year 1977. At the time of allotment of independent

code numbers to each contractor in the year 2004 and when the RPFC

Chhattisgarh was constituted, it was found that the petitioner had

regularly deducted PF contribution and allied dues from the bills of 17

each contractor since 1995. The said amount was supposed to have

been deposited in a Trust Fund admittedly maintained by the

petitioners at Kolkata against each employee. The writ petitioner and

the Trust Fund were thus obliged by reason of an implied undertaking

under Section 17 of the 1952 Act to maintain a list of all employees

under the contractors employed.

34. The Investigating Officer of the RPFC Kolkata received absolutely no

cooperation from the petitioner for determining the amount deducted

from the bills of the contractors from the P.F. Authorities at

Chhatisgarh. On the contrary the facts narrated hereinabove indicate

an attempt by the principal employer to cover up their tracks in failing

to deduct PF and allied dues or maintain the list of employees.

35. Finally a team headed by the APFC was constituted by the authorities

who visited the office of the petitioners at Bhilai. After having failed to

collect information, the power of search and seizure was invoked and

a large number of records of the Company were seized and brought to

the Kolkata office. After considering all documents and particularly

an admitted statement signed by the Manager, Finance, of the

petitioner, it was found that a sum of Rs.17,28,92,308/- was due and

payable. In view of absolute non-cooperation on the part of the writ

petitioner, the RPFC and his team were compelled to resort to the

well-established "Best Judgment method". The process of assessment

is available at Pages 162 to 169 of the said impugned order. 18

36. From the rival contentions of the parties, the following questions

emerge:-

a) Is there a time period within which an enquiry under Section 7A is to be initiated under the EPF Act of 1990?

b) What are the mandatory procedures to be followed by the Assessing Authority in the process of assessment under Section 7A?

c) In a situation where the beneficiaries are not identifiable, is the RPFC debarred from making any assessment and are the proceedings liable to be dropped.

d) In the absence of particulars of employees and their wages and the length of engagement what is the method of assessment to be applied by the RPFC?

37. Answer to question (a).

Is there a time period within which an enquiry under Section 7A is to be initiated under the EPF Act of 1990 ?

38. The petitioners argued that by reason of the inordinate delay of over 12 years

in assessment of PF dues, the same has a killing effect on the process of

assessment itself and hence, the proceedings ought to have been dropped in

terms of a decision of the Zonal Additional Provident Fund Commissioners

held on 16th and 17th of April 2015;

Section 7a of the EPFMP Act 1952 mandates as follows:-

"[7A. Determination of moneys due from employers.--2 [ 19

(1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order,--

(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and

(b) determine the amount due from any employer under any provision of this Act, the Scheme or the 3 [Pension] Scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary].

(2) The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the following matters, namely:--

(a) enforcing the attendance of any person or examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses; and any such inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860).

(3) No order 4 *** shall be made under sub-section (1), unless 5 [the employer concerned] is given a reasonable opportunity of representing his case. 6 [(3A) Where the employer, employee or any other person required to attend the inquiry under sub-

section (1) fails to attend such inquiry without assigning any valid reason or fails to produce any document or to file any report or return when called upon to do so, the officer conducting the inquiry may decide the applicability of the Act or determine the amount due from any employer, as the case may be, on the basis of the evidence adduced during such inquiry and other documents available on record.] 7 [(4) Where an order under sub-section (1) is passed against an employer ex parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for 20

proceeding with the inquiry: Provided that no such order shall be set aside merely on the ground that there has been an irregularity in the service of the show cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer. Explanation.--Where an appeal has been preferred under this Act against an order passed ex parte and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this sub- section for setting aside the ex parte order.

(5) No order passed under this section shall be set aside on any application under sub-section (4) unless notice thereof has been served on the opposite party.]"

39. It is clear from the provisions of Section 7A of the Act that there is no

period of limitation within which an enquiry has to be undertaken

thereunder. However, it is now well-settled that whenever the

statute does not provide for any period of limitation, it must be

understood that the action by the authorities must be taken within a

reasonable period of time.

40. In the case of Bhagirath Kanoria & Anr. Vs.State of M.P. &Ors

reported in (1984) 4 SCC Page 222, it was held that every default

by an establishment in making payments under the EPF Act gives

rise to a fresh cause of action. Hence, a default under the Paragraph

38 of the Scheme of 1952 or under Section 17 of the Act is a

continuing offence. Paragraph 11 is set out hereunder-

"11. This passage shows that apart from saying that a continuing offence is one which continues and a non-continuing offence is one which is committed once and for all, the Court found it difficult to explain as to when an offence can be described as a continuing offence. Seeing that difficulty, the Court observed that a few illustrative cases would help to bring out the distinction between a continuing offence and a non- 21

continuing offence. The illustrative cases referred to by the Court are three from England, two from Bombay and one from Bihar.

19. The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence. Turning to the matters before us, the offence of which the appellants are charged is the failure to pay the employer's contribution before the due date. Considering the object and purpose of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature. The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it, as soon after the due date had expired as they willed. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. It is putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who has not paid his contribution or the contribution of the employees to Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply.

41. On this question, Learned Amicus Curiae had placed the decision of

HP State Forest Corporation vs. RPFC (Supra). In the said case

while recognizing that proceedings under Section 7A should be

instituted within a reasonable time, the Court took a very grim view

of the delay of 12 years in initiating proceedings under Section 7A

against the appellant therein. The said decision however has ignored

the dicta of the Hon'ble Supreme Court in the Bhagirath Kanoria

case (supra) and hence the directions in the last paragraph in the HP

Forest Corporation case (Supra) must be deemed as rendered in

the peculiar facts of that case. Another unique distinguishable fact 22

is that the HP State Forest Organisation was not exempted under

Section 17 of the 1952 Act read with Paragraph 79 of the said

Scheme, as the writ petitioner was exempted, in the instant case.

42. In the facts of the instant case, however, the principal employer has in

fact set apart sums of money out of every payment made to the

contractors in question towards PF and allied dues of the employees

under contractors. The contractors being about 190 in numbers and

the workers being around 15000, for the period between1994 to

2005. The delay on the part of the PF Authorities, in initiating and

completing the enquiry cannot be faulted, for delay.

43. Admittedly the writ petitioner was an exempted organisation since the

year 1974. An exempted organisation under Section 17 of the said

Act is entitled and obliged, to maintain its own Trust Fund for

holding Provident fund and allied dues. The petitioner being a

principal employer is also required and obliged to maintain an

identified list of all beneficiaries in whose favour the deductions are

made and kept aside for being paid at the time of the retirement or

claim. Any default by the petitioner in this regard is per se

actionable. The petitioner cannot be allowed to raise delay by the

authorities to escape liability and cover up its own failures. Hence,

the decision in the meetings of the ZAPFCS dt. 16th & 17th April,

2015 cannot be deemed to cover or address the instant case or apply

to the petitioners.

23

44. Answer to question (b)

What are the mandatory procedures to be followed by the Assessing Authority in the process of assessment under Section 7A?

45. Sub-Section 2 of Section 7A mandates that the Inquiry Officer therein

shall have the same powers as are vested in the Civil Court under the

CPC 1908 for trying a suit. The powers under Sub-Section 2 has

already been set out earlier.

46. Sub-Section 3 mandates notice to be given to the employer concerned.

In the instant case since the employees in question were not direct

employees of the petitioner but engaged through a contractor, the

Respondents authorities must and did issue notices to the

contractors to produce particulars of the employees concerned as

also their wage structure and salaries to enable the RPFC to arrive at

fair and proper conclusion as regards the liability of the principal

employer. Out of 190 Contractors about 141 appeared and threw up

their hands for non-availability of records.

47. Since the writ petitioner, principal employer, was an exempted organisation it

had a bounden duty to maintain particulars of all employees engaged under

a contractor as also their wages and salaries structures as may have

changed from time to time. The RPFC had therefore asked the petitioner to

provide the particulars in the instant case but in vain.

48. As already stated hereinabove the concept of principal employer is duly

recognised under the EPF & MP Act 1952, similar to the ESIC Act 1948 both 24

of which are beneficial social welfare legislation. The two statues are meant

for the benefit of the poorer section of Society. The purpose of creation of

the term 'principal employer' in the statutes is that, irrespective of whether

the employees concerned are engaged through contractors or through other

means and agencies, employees can obtain their lawful dues with certainty

and would not have to chase middlemen. Hence, the responsibility of

depositing PF and allied dues and maintaining particulars of employees are

equally imposed on the 'principal employer' by the Act. Even if the

petitioner were not an exempted organisation, it had the ultimate

responsibility to ensure that the contractors deposited the PF dues of the

employees concerned as principal employer. The petitioner would therefore

be obliged to file a declaration before the PF Authorities at Bhilai or in

Kolkata and obtain code numbers for each individual employees, and

directly deposit P.F. against such codes with the P.F. Authorities, in the

absence of exemption under Section 17 of the Act of 1952.

49. The writ petitioner in this case had obtained in the year 1977 itself an

exemption from having to deposit PF and allied dues with the Authorities

directly. It has set up a Trust Fund to hold on to such PF benefits payable

its employees. The petitioner, therefore, took upon itself, the responsibility

of not only identifying and keeping a record of all employees permanent,

temporary or any others, but also to deposit with such Trust Fund against

each employee both its own as well as the employees' contribution to

Provident Fund. This is the object and purpose of exemption given under

Section 17 of the EPF & MP Act. The writ petitioner has deliberately and 25

wilfully chosen not to maintain any such records of identifiable employees

being recipients of the benefits under the aforesaid Act. The consequences

of such default would per-se attract the consequences under the said Act.

50. The petitioner thus, cannot complain of non-compliance of proceedings for

investigation by the authorities in the facts of the case. The authorities even

otherwise have followed all the necessary procedures or evident from the

records.

51. It is now a well-settled principle of Common Law that a wrongdoer cannot

take advantage of his own wrong. The above proposition, albeit under

different other statutes, has been recognised by the Hon'ble Supreme court

of India.

52. In Eureka Forbes Limited versus Allahabad Bank reported in 2010 (6) SCC

Page 193 at Paragraph 66, the Hon'ble Supreme Court has laid down as

follows :

"66. The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations. In the present case Respondents 2 and 3 and the appellant have acted together while disposing off the hypothecated goods, and how, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon Respondents 2 and 3 and in any case on the appellant. The Bench of this Court in Ashok Kapil v. Sana Ullah referred to rule of mischief and while explaining the word "building", held as under : (SCC p.346, para 11)

"11. Stroud's Judicial Dictionary (Vol.I of the 5th Edn.) states that 'what is a building must always be a question of degree and circumstances'. Quoting from Victoria City Corpn. v. Bishop of Vancouver Island (AC at p. 390), the celebrated lexicographer commented that 'the ordinary and natural 26

meaning of the word "building" includes the fabric and the ground on which it stands'. In Black's Law Dictionary (5th Edn.) the meaning of 'building' is given as 'A structure or edifice enclosing a space within its walls, and usually, but not necessarily, covered with a roof'. (emphasis in original). The said description is a recognition of the fact that roof is not a necessary and indispensable adjunct for a building because there can be roofless building. So a building, even after losing the roof, can continue to be a building in its general meaning. Taking recourse to such general meaning in the present context would help to prevent a mischief."

53. In Ashok Kapil versus Sana Ullah and others reported in 1996 (6) SCC

Page342 at Paragraph 7 the Hon'ble Supreme Court has held as follows :

"7. if the crucial date is the date of allotment order, the structure was not a building as defined in the Act. But can the respondent be assisted by a court of law to take advantage of the mischief committed by him? The maxim "Nullus commondum capere potest de injuria sua propria" (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assistance of a court of law for enjoying the fruit of his own wrong."

54. In Indrajit Singh Grewal Versus State of Punjab and others reported in

2011 12 SCC Page 588 at Paragraph 22, the Hon'ble Supreme Court laid

down as follows :

"Respondent 2 herself had been a party to the fraud committed by the appellant upon the civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus, according to her own admission she herself is an abettor to the crime. A person alleging his own infamy cannot be heard at any forum as explained by the legal maxim allegans suam turpitudinem non est audiendus. No one should have an advantage from his own wrong (commondun ex injuria sua nemo habere debet). No action aises from an immoral cause (ex turpi causa non oritur action). Damage suffered by consent is not a cause of action (volenti non fit injuria). The statements/allegations made by Respondent 2 patently and latently involve her in the alleged fraud committed upon the 27

court. Thus, she made herself disentitled for any equitable relief."

55. Applying the dicta laid down in the above cases, it is seen that the writ

petitioner was doing exactly what was prohibited in law and with knowledge

of such illegality. Not only did it fail to maintain records as mandated under

statute, it has also dishonestly sought to shift the onus and blame on its

contractors. The petitioner did not file regular returns of its Trust with the

authorities. It was on the contrary trying to mislead the authorities by

insisting on production of records by contractors whereas such records

should have been available with the petitioner itself. The petitioner tried to

suppress and deny its own document whereby and under a sum of Rs.17

odd crores was calculated towards PF by its own official, as dues towards

defaulted PF from this Court as also the PF Authorities. The Authorities

thus, had no other option than to rely upon available materials for arriving

at the figure of the petitioners default and liability towards PF dues of

employees engaged through contractors for its projects at the Bhilai Steel

Plant.

There is equal failure on the part of the authorities is not taking action

despite not receiving returns of the Trust Fund from the petitioner.

56. Answer to question (c)

In a situation where the beneficiaries are not identifiable, is the RPFC debarred from making any assessment and are the proceedings liable to be dropped.

28

57. In various decisions the Employees Provident Fund Appellate Tribunal has

held in similar circumstances that proceedings under Section 7A should be

dropped and there should be no requirement for a deposit of PF dues. It

was argued by the petitioners that the said decisions cited by the Authority

before the RPFC have been ignored and hence, the impugned order is illegal.

58. A point that was strongly urged by the writ petitioner is that since there are

no identifiable employees concerned, the RPFC cannot make recoveries

under Section 7A for faceless and nameless persons, and that the enquiry

under Section 7A a same would be an exercise in futility. I cannot accept

such argument. In the case of ESIC Vs. Kalpaka International reported in

(1993) 2 SCC Page 9 at Paragraph 27 and 28.The Hon'ble Supreme Court

held as follows.

"27. The Insurance Court as well as the High Court have correctly upheld the demand for contribution. But it is rather strange to conclude that the demand could not be enforced against a closed business. If this finding were to be accepted it would not promote the scheme and avoid the mischief. On the contrary, it would perpetrate the mischief. Any employer can easily avoid his statutory liability and deny the beneficial piece of social security legislation to the employees, by closing down the business before recovery. That certainly is not the intendment of the Act. To hold, as the High Court has done, would set at naught all these beneficial provisions.

28. It is equally fallacious to conclude that because the employees had gone away there is no liability to contribute. It has to be carefully remembered that the liability to contribute arose from the date of commencement of the establishment and is a continuing liability till the closure. The very object of establishing a common fund under Section 26 for the benefit of all the employees will again be thwarted if such a construction is put."

29

59. In the Harrison Malayalam case (supra), the Supreme Court had held that

it is totally irrelevant that the employees were no longer in existence and

identifiable. The obligation of the employer to deduct ESIC contribution of

the employees concerned, was held to be a statutory obligation under a

beneficial piece of legislation, for the employer to comply with and hence the

identification of employees was not relevant. It was also held that if the

employer did not maintain the records of its employees, he was himself to

blame for it.

60. In Regional Director, E.S.I., Corporation vs. Kerala State Drugs and

Pharmaceuticals Ltd. reported in 1995 Supp. 3 SCC Page 148, it was held

at Paragraph 3 as follows :

"3. There is thus no quid pro quo between the persons insured and the benefit available under the Act. As regards the finding that the workmen were unidentifiable, what is forgotten is that under the Act, once an establishment comes to be covered by the Act, the employer becomes liable to pay the contribution in respect of the employees in his employment directly or indirectly. The contribution which had become payable for the relevant period has to be paid even if the employees concerned are no longer in employment. Whether the employees are unidentifiable today or not is, therefore, irrelevant so long as the contribution was liable to be paid on their behalf, when they were in employment."

61. It was, however, argued by the writ petitioner that while the objects of the

ESIC Act and the EPF & MP Act are similar but in the case of ESIC the

contribution is not employees' specific as in the case of EPF & MP Act.

However, in the case of Bharat Heavy Electricals Ltd. Vs. ESIC reported 30

in 2008 (3) SCC Page 247, at Paragraph 20, the Hon'ble Supreme court

held as follows :

"20. We, with the respect to the learned Judges, fail to notice any significant difference in the purport and object of both the provisions. The purport and object of both the statutes, for all intent and purport, in our opinion, is the same. In the proceedings, initiated under Section 45-A of the Act, an immediate employer or principal employer may also show that they are not liable to deposit any contribution on behalf of the employees as the establishment in question did not come within the purview thereof. The purpose of the proceedings, both under the Act as also the Employees' Provident Funds Act, is to determine the amount due from any employer in respect of the employees under the statutory schemes. Both the Acts envisage compliance with principles of natural justice. The proviso appended to Section 45-A of the Act provides for a statutory mandate of giving a reasonable opportunity of being heard."

Emphasis applied.

62. The above principle was reiterated by the Hon'ble Supreme Court in the

case of ESIC vs. C.C. Santha Kumar reported in 2007 1 SCC 584 at

Paragraph 34. The cases under EPF & MP Act were discussed to address

issues under the ESIC Act.

63. It is, therefore, abundantly clear that the above decisions relating to ESIC

Act 1948 would squarely and clearly apply to the facts of the instant case.

Both the statues are meant for the benefit of poor employees and the weaker

sections of Society. A defaulting employer therefore must be deemed to be

committing a grave misdemeanour in committing default under the Act. The

same is not just a fraud on statute but also a fraud on Society if a defaulter

is not compelled to cough up the sums defaulted. The said money does not

belong to the writ petitioner. The same must be made over to the State to

enable it to put it to use for the general good of the society. The same must 31

therefore come out of the till of the petitioner as he cannot be allowed to

enrich himself for the wrongs and misdemeanours committed by him.

64. I am in respectful and complete disagreement with the decision of the Single

Judge of the Patna High Court in the case of Raj Kumar Gupta (Supra). The

said decision has completely ignored, the dicta of the Supreme Court

referred to discusshereinabove. Hence, in my view PF dues are recoverable

even in the case of unidentified employees or if the employees left or even in

the case of closure of an employer.

65. Answer to point (d).

In the absence of particulars of employees and their wages and

the length of engagement what is the method of assessment to be

applied by the RPFC?

66. The last question to be addressed is as to what is that method of

assessment to be applied by the authorities in the case there the employees

are unidentified and the salaries and wages payable are exactly not

available. The question has been addressed by the Hon'ble Supreme Court

in the case of ESIC vs. C. C. Santhakumar (supra) at paragraph 15 where

the principle of "best judgment assessment" under taxing statutes has been

applied in such situation.

"15. Section 45-A provides for determination of contributions in certain cases. When the records are not produced by the establishment before the Corporation and when there is no cooperation, the Corporation has got the power to make assessment and determine the amount under Section 45-A and recover the said amount as arrears of land revenue under 32 Section 45-B of the Act. This is in the nature of a best-judgment assessment as is known in taxing statutes............"

67. In Subhas Ch. Bose Vs. ESIC (2003) LLJ 376, it was held that persons

would become the employees of the principal employer only when there is

direct supervision of the employees of contractors. Merely because the

employees were working in the establishment the same would not make the

contractors employees as the employees of the contractors. The

establishment is still that of the principal employer. The Commissioner had

to rely upon available records and alternative methods as the Principal

Employer could not produce available documents.

68. In JK College of Engineering Vs. Union of India reported in 2011 LLR

1013 it was held that dodging tactics of the employer should be tolerated.

It is, therefore, abundantly clear that an employer cannot get away by

urging non-availability of records thereby presenting fait accompli to an

authority. As already stated hereinabove a person cannot take advantage of

its own wrong. In such circumstance the "best judgment principle" must be

applied by the authorities.

69. In NTP Corporation Ltd. Vs. RPFC reported in 1998 (2) CLJ, it was held at

Paragraph 3 that the -"It is true, in view of provision of Section 3A of Section

7A, that when necessary documents does are not produced by an assessee,

the authorities shall continue to make determination based on Evidence on

record."

33

70. In the instant case, based on the information supplied by the assessee the

following information was called for by the RPFC, of 166 contractors.

a) Names of the Contractors

b) Work Order Numbers

c) Description of works

d) Approximate Quantity

e) Unit (Mandays)

f) Rate

g) Total Amount

h) Time limit for completion of work

i) Terms and completion of work.

71. Based on the Records submitted the RPFC found that the total amount paid

to the Contractors was Rs.26,38,42856.39 The amount included both Piece

Rated workers and Job rated workers.

After discussing the all matters from PG 162 of the impugned order dated

26/12/2016 the RPFC found as follows :-

WAGES ACC-1 ACC-1 ACC-10 ACC-2 ACC-21 ACC-22 TOTAL

[Apr-95 TO EE ER

Mar-04]

675096863.00 76463826.00 23794123.00 53662838.00 1007674.00 3375484.00 67510.00 158371455.00 34

DUES FOR 1995 TO 2004

REMITTANCE STATUS

ACC-1 ACC-1 ACC-10 ACC-2 ACC-21 ACC-22 TOTAL

EE ER

20737995.00 3463246.00 17274749.00 373284.00 1036897.00 2074.00 42888245.00

DATE OF 09/03/2012 PAYMENT

OUTSTANDING DUES PARTIC ACC-1 ACC-1 ACC-10 ACC-2 ACC-21 ACC-22 TOTAL

ULARS EE ER

DUES 76463826.00 23794123.00 53662838.00 1007674.00 3375484.00 67510.00 158371455.00

REMITTANCE 20737995.00 3463246.00 17274749.00 373284.00 1036897.00 2074.00 42888245.00

OUTSTANDING 55725831.00 20330877.00 36388089.00 634390.00 2338587.00 65436.00 115483210.00

AMOUNT

Therefore, on the above foundation of the facts, figures and textual contention, I order under the power vested upon the 7A authority under Section 7A of the said Act that the establishment is liable to pay the outstanding amount as quantified above as Rs.115483210.00 (Rupees Eleven Crore Fifty Four Lakh Eighty Three Thousand Two Hundred and Ten) only for the assessment period.

72. The RPFC has relied upon a calculation, prepared by the Manager,

Finance, of the writ petitioner itself in arriving at the figure towards

the petitioners' liability towards PF for the period of default between

1995 to 2004. The RPFC also relied upon the self-assessment figure

of Rs.4.58 crores odd deposited by the petitioner with the authorities

in the interregnum of the 7A proceedings. Such sum of Rs.4.58 crores 35

was arrived at by the petitioner based on outstanding dues admitted

through their Manager (Finance) at Rs.17,28,92,308/- more fully set

out in Paragraphs 4 and 5 herein. The RPFC back calculated and

arrived at the admitted number of employees and their likely wages on

an average, since the petitioner principal employer failed to submit

specific particulars of the wages paid over a period 11 years. It must

be remembered that the writ petitioner itself made such a prayer

before the RPFC as discussed in Para 18 Point (c) herein. I, therefore,

endorse and approve the calculations, methodology and final liability

arrived at by the RPFC, impugned herein.

73. The money in question does not belong to the petitioner. The money

hence cannot remain with the petitioner. The dishonesty in the stand

of the writ petitioner both before the authorities and this Court inter

alia evident from the following:

a) In having failed to maintain/particulars accounts of these

employees and, therefore, claim that no assessment can be made

for faceless and nameless persons.

b) Not maintaining account and particulars of employees and turning

around and terming the RPFC's performing his statutory role as

blasphemy, i.e. trying to give the RPFC a bad name and attempting

to hang him.

c) Conveniently and with ulterior motive suppressing a summary of

its liability for the period of default, prepared by its own employee. 36

d) Seeking to defraud both the employees concerned and the

statutory authorities by on one hand obtaining exemption under

Section 17 and on the other hand not making appropriate deposits

with its own PF fund.

e) Not submitting periodical returns of its own PF Trust to the

authorities.

f) Admitting before a coordinate bench of this Court at the initial

stage that a sum of Rs.17 odd crores may be due and payable and

subsequently and fraudulently getting the amount correcting and

reduced to Rs.7 crores by suppressio veri and suggestion falsi.

g) In having produced piecemeal records before this Court not

hitherto produced before the RPFC.

74. In course of hearing this Court with a view to further a last

opportunity to the writ petitioner, appointed a Chartered Accountant

to go into the records submitted by the petitioner to the RPFC. The

writ petitioner was also granted liberty to produce relevant records

that they had claimed to have traced out while this matter was being

heard.

75. The said Chartered Accountant has recorded that some challans

evidencing deposit of PF and some ledgers, were produced by the

petitioner. He found that a sum of Rs.9,28,88,245/- has been

deposited by the HSCL towards PF dues totally with the Trust Fund

and the PF authorities. The Chartered Accountant has also recorded 37

that some records were not produced by the writ petitioner. What is

surprising, is the dogged stubbornness of the petitioner and its

officials in having refused to produce the same before the PF

authorities.

76. An adverse inference is also thus warranted against the writ petitioner

and the impugned order dt. 26th December 2016 holding the petitioner

to its Finance Manager's admission (Para 4 and 5 herein) must be and

is hereby upheld by this Court. The impugned order is afforded with

good and sound reasons and is definitely sustainable and cannot be

faulted.

77. The above amount shall be enforceable against the company. The

money lying in the Court of about 5 crores with the Registrar

Appellate Side of the Court shall be made over to the RPFC.

78. In the context on cannot but ignore the concept of "Symbolic Justice"

enunciated in a recent decision of the Hon'ble Supreme Court in the

Case of National Campaign for Central Legislation for

Construction workers Vs Union of India and Ors reported in

(2018) 5 SCC 607. The said decision based on the provisions of the

Building and Other Construction Workers (Regulation of Employment

and other Conditions of Services) Act of 1996, and the discussions on

the objects and purpose of beneficial legislation of the poor and

downtrodden, to achieve the Directive Principles of State Policy have a

lot of relevance in the facts of the instant case. 38

79. While parting with the case the Court notes with pain the conduct of

the officials of APFC, Bhilai and the RPFC, Kolkata between 1995 and

2005. They have completely failed to check that an exempted

organisation like the petitioner has not submitted periodical returns in

terms of the EPF & MP Act 1952. Had the returns been submitted the

situation would not have come to such a passe. This Court therefore

recommends Disciplinary Action against the concerned officials of the

RPFC/APFC, Bhilai and the RPFC and concerned officials at Kolkata

for the period from 1995 to 2004.

80. Likewise Disciplinary Action shall be initiated against the concerned

officials managing the Trust Fund of the writ petition HSCL and other

persons responsible for depositing PF amounts and maintaining the

list and names of the beneficiaries.

81. The W.P. is therefore dismissed with cost assessed at Rs.50,000/-.

Interim orders of any shall stand vacated.

82. Let a copy of this Judgment and Order be sent to the Central

Vigilance Commissioner and the Secretary Ministry of Labour of the

Central Government by the Registry for immediate action, as directed

hereinabove.

83. Urgent Xerox certified servers copy of this judgment, if applied for, be

supplied to the parties on urgent basis.

(Rajasekhar Mantha J.) 39

Later:-

After delivery of judgment, the stay of operation is prayed on behalf of the petitioner.

The same is considered and declined.

(Rajasekhar Mantha, J.)