(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. The petitioner is aggrieved by an order passed in Special Civil Application No.4088 of 2012 vide which his petition against the orders passed by the Assistant Provident Fund Commissioner, dated 05.09.2008 and 16.10.2008 and further order dated 25.01.2011 passed by the Presiding Officer, EPFAT in ATA No.901(5)(2008), has been dismissed.
2. The petitioner is a propriety concern undertaking contract from Indian Oil Corporation. In the proceeding initiated under Section-7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952(hereinafter referred to as the 'PF Act'), the petitioner has been found liable to pay a sum of Rs.7,20,932/- towards the outstanding provident fund for the period from October, 1997 to March, 2003. As his appeal as well as Special Civil Application preferred before the learned Single Judge of this Court have been dismissed, the petitioner has approached this Court by way of present Letters Patent Appeal.
3. The learned Counsel for the petitioner has submitted that learned Single Judge, while dismissing his Special Civil Application, has not taken into account the fact that the important documents of Enforcement Officer i.e. letter dated 25.06.2003 has not been supplied to the petitioner, which amounts to violation of principle of natural justice. It is, further, submitted that the assessment of arrears of PF amount at Rs.7,20,932/- is arbitrary, illegal and not sustainable in law. Finally, it has been submitted that the petitioner concerned has been employing 4 to 5 persons from the year 1997 till 2003 and when the number of employees reached 20, they applied for code number and it was allotted in the year 2003, and thereafter, the petitioner has been regularly making contribution towards PF, accounts of the employees.
4. We have heard Mr. P.J. Mehta, learned Counsel for the petitioner and have gone through the various orders and material placed on record.
5. The petitioner is aggrieved by the determination of outstanding amount at Rs.7,20,932/-, payable towards outstanding PF contribution in respect of employees/workers employed by him from October, 1997 to March, 2003. In order to prove their case, the respondents have placed on record the First Inspection Report dated 25.06.2003, wherein it has been clarified that the activity of the establishment started in the year 1996. Along with this report the Enforcement Officer has placed on record Salary Register for the month of October, 1997, according to which the petitioner concerned has engaged 20 employees. The Officer has also supplied Form-16A for the year 1999-2000, 2000-2001 and 2001-2002, showing the acitivities of the petitioner concerned. It is relevant to note that the petitioner failed to submit the Attendance Register, Salary Register and the Balance-Sheets etc. to prove that the number of employees engaged by him was less than 20.
6. The argument of learned Counsel for the petitioner regarding non-supplying of Inquiry Report is baseless. It is, further, meaningless to say that the order directing the petitioner to deposit a sum of Rs.7,20,932/- as PF is arbitrary and irrational. Once again the arguments of the learned Counsel for the petitioner deserve to be rejected as the respondents have taken 30 per cent of the contract amount as wages and on the basis of that the amount towards PF has been assessed.
7. The petitioner-employer is require to prove the fact that the provisions of PF Act were not applicable to him. Onus had shifted on to the employer to place sufficient cogent and convincing material before the Designated Authority in inquiry under Section-7A of the Act so as to satisfy the Authority with regard to non-applicability of the PF Act and on failure to do so the liability had to be determined on the basis of the available material. As stated earlier, the petitioner has failed to place on record any material to show that the workers employed by him, at the relevant point of time, were less than 20 or that the provisions of PF Act were not applicable during the period in question. It has to be noted that the appellant herein did not remain present and no argument was addressed before the Employees' Provident Fund Appellate Tribunal in his own appeal; and no material was placed on record by the appellant even before learned single Judge to take any different view of the matter.
8. For the afore-stated reasons, we do not find any ground to interfere with the order passed by the learned Single Judge. Resultantly, petition being devoid of merits is DISMISSED in limini, along with the Civil application.
(D.H. WAGHELA, J.) (MOHINDER PAL, J.) Umesh/