JUDGMENT B.L. Yadav, J.
1. Whether the petitioner (the employer) was entitled to the benefit of the principles of natural justice before passing an order under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (compendiously 'the Act') to ascertain as to whether the provisions of the Act were applicable to the establishment and whether the petitioner must appear and co-operate in the enquiry held for that purpose, are short questions that fall for determination in the present petition filed by the petitioner under Article 226 of the Constitution of India, with a prayer to quash the impugned order dated April 6, 1993 (Annexure No. 8 to this writ petition) whereby the petitioner was directed by the Regional Provident Fund Commissioner to produce records in an enquiry under Section 7A(1) of the Act and also directing the employees of the establishment to produce their evidence on the next date of hearing i.e. May 5, 1993 and for direction to quash the proceedings under Section 7A of the Act and also for issuance of a Writ of Mandamus restraining the respondents from conducting the enquiry under Section 7A of the Act.
2. The facts leading to the present petition lie in a narrow compass and they are these.
3. In connection with the enquiry under Section 7A(1) of the Act, the enforcement officers, Kanpur, came to the petitioner's establishment on April 29, 1992 and on May 28, 1992 and asked for the documents and records, which were produced, and the records were examined and certain questions were also put to the workmen. There were other establishments in the same premises where the petitioner's establishment was situate, but they have separate registration. There are ten workmen working in the petitioner's establishment, which was a private limited company. Thereafter, the petitioner received no information except a letter dated July 14, 1992 from the office of the respondents requiring him to produce documents in respect of petitioner's company and other firms. Itappears that the respondents reached the conclusion without hearing the petitioner and without affording any opportunity about the number of the employees and other facts necessary to establish that the petitioner was liable to make contribution in respect of the provident fund. According to the petitioner, there are errors apparent on the face of the record, and the impugned order deserves to be quashed, inasmuch as Paragraph 26-B of the Scheme was not relevant.
4. Poonam Srivastava, learned counsel for the petitioner, strenuously urged that no opportunity of hearing was afforded to the petitioner before passing the impugned order (Annexure No. 8 to this writ petition) directing the workmen to appear on May 5, 1993 with the evidence to prove as to whether the Act was applicable to the petitioner's establishment, was manifestly erroneous inasmuch as Paragraph 26-B of the Scheme has been referred, whereas it has no concern with the establishment. Reliance was placed on Oriental Agency, Jaipur v. Regional Provident Fund Commissioner 1989 (59) FLR 527. It was in fact a case based on different facts. There a recovery certificate was issued for a sum of Rs. 20563/- and odd before passing an order by the Regional Provident Fund Commissioner that the provision of the Act was applicable, consequently, it was held that Regional Provident Fund Commissioner should determine coverage of the Act and the scheme to the establishment and thereafter to hold an enquiry to determine the amount due after affording an opportunity of hearing to the employer and the recovery order without determination under Section 7A of the Act was quashed.
5. Sri J.N. Tiwari, learned Senior Counsel appearing for the respondents, urged that the enquiry under Section 7A(1), (2) of the Act was not completed and at every stage the petitioner was afforded opportunity to produce the records pertaining to the establishment (Vide Annexure 3, page 34) to ascertain as to whether the provisions of the Act were applicable, but the petitioner did not comply with the same except that the representative of the petitioner appeared only on few dates, but not with the entire relevant records. The opportunity is still being afforded to the petitioner and the impugned order is not final, nor any thing positive has been decided against the petitioner. The enquiry is in progress and the petition has been filed at pre-mature stage. In fact, the provisions of Paragraph 36A of the Employees Provident Fund Scheme 1992 (for short the Scheme) was applicable and by some bona fide error Paragraph 26-B of the Scheme was mentioned.
6. Having heard learned counsel for the parties at considerable length, the petition was dismissed on May 20, 1993, and the reasons were to follow. There are the reasons.
7. As regards the first point, as to whether the petitioner was entitled to be heard and afforded sufficient reasonable opportunity before passing the impugned order? A perusal of the impugned order would indicate that sufficient opportunity for hearing and producing relevant records and Register of the employees is being given to the petitioner. Sri Anil Kumar Garg, Representative of the petitioner filed a representation dated April 6, 1993, which was taken on the record as a part of the proceedings and a copy of it was furnished to the department, but it appears that some objection was raised by the establishment that the respondent was not entitled to summon the documents but that objection was overruled as is clear by the Statement of fact in para 3 Annexure No. 8, page 51 of the writ petition. The observation was to the effect that there should be no objection to the establishment to produce records for verifying the question of facts as to how many employees were engaged by each unit Sri Garg was again directed to produce records so that the Regional Provident Fund Commissioner, U.P. could ascertain the facts about the applicability of the Act. Even though arguments were advanced on behalf of the petitioner that records should not be summoned from the petitioner, but that objection was overruled. It appears that from the other side, it was suggested that the workmen be directed to produce their records on the next date fixed i.e. May 5, 1993. It is still open to the petitioner to produce relevant documents required by the respondents on the date fixed. It is to be kept in mind that the provisions of the Act were enacted to provide the benefit to the workmen under the social welfare legislation. It is the cardinal rule of interpretation of the Statute "that approach to a statute of predominant social nature has to be made in that light. The judges must take a broad view of the background and policy of the Statute in question and there must be purposive approach made to ascertain meaning of a particular provision in social legislation and the said approach must be made to achieve social ends envisaged in the Act". (See Summers v. Seeford Corporation) (1991) Suppl. (2) SCC 228.
8. As the provisions of the Act are social welfare legislation, consequently, any effort on the part of the employer to defeat the welfare of the workmen is to be discouraged, particularly, when no justice is done to the employers (See Ravindra Chamria v. Regional Registrar of Companies West Bengal and Ors. (1992-I-LLJ-313), K.B. Sharma v. R.M. Gandhi, Regional Provident Fund Commissioner, 1992 (64) FLR 933.
9. In the instant case, several opportunities have been given and the same is still being afforded to the petitioner (vide Annexure 3, page 34 of the petition) to ascertain the applicability of the Act to the establishment of the petitioner. Consequently, it could not be said that the petitioner is being deprived of the opportunity of hearing.
10. The Section 7A(3) of the Act was also emphatic that no order shall be made under Sub-section (1) unless the employer concerned is given reasonable opportunity of representing his case. The respondent No. 1 appears to be conscious about the provisions of the Act hence at every stage he was granting opportunity of hearing to the petitioner. It cannot be said that the petitioner was deprived opportunity of hearing. The applicability of Section 7A(1) is still to be determined and for that purpose relevant records from the petitioner have been summoned and the workmen have been directed to furnish evidence on the date fixed. The enquiry as contemplated under Section 7A(1) is still in progress and it has not been concluded. This petition has been filed at premature stage with a view to defeat the object of social beneficent legislation.
11. Reverting to the next question as to whether in the impugned order mention was correctly made about Paragraph 26-B of the Scheme. It was to be emphasised that certified copy of the impugned order has not been filed by the petitioner, what is available is just the Annexure purporting to be a true copy of the impugned order. The provisions of Para 26-B of the Scheme is about resolution of doubts. It appears that by some unintentional error that para was mentioned, whereas the correct paragraph was Paragraph 36-A of the Scheme. Under this Para 36-A, every employer, in relation to a factory or other establishment to which provisions of the Act were applicable, was required to furnish in duplicate to the Regional Commissioner in Form No. 5-A particulars of all branches and departments, owners, occupiers, directors, parties, manager or any other persons, who have ultimate control over the affairs of such factory or establishment and also send intimation of any change in such particular. In fact, Para 36-A ought to have been mentioned. As no certified copy of the impugned-order has been furnished, even though that was required under the Rules of the Court 1952, hence in my opinion correct para is Para 36-A.
12. The matter can be viewed from another angle. Constitution (42nd Amendment) Act 1976 has inserted Chapter V-A (Fundamental Duties) to the Constitution of India. Article 51A enumerates Fundamental Duties. Article 51A(j) enacts that it shall be the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher level of endeavour and achievement. Excellence, in common parlance, means surpassing merit or virtues etc. According to grammar, excellence is noun, whereas excel is verb. In other words, excellence means to be superior to others, pre-eminent, usually in good qualities. To put it differently, what Article 51A(j) requires is that every citizen must perform his duties (including the duties of the petitioner to produce all the relevant documents and evidence in support of the enquiries under Section 7A of the Act) in a more superior way, or in a way which could be said that the petitioner has surpassed in performance of his duties. Even if these duties under Article 51A cannot be enforced in a court of law, nevertheless, they serve as an external aid to interpret the provisions of Section 7A(1) of the Act and Para 36-A of the Scheme. What to say performing the duties in an excellent way, the petitioner did not perform his duties in an ordinary way (See Mohan Kumar Singhania v. Union of India (1992 Supp. (1) SCC 594).
13. Normally, the jurisdiction under Article 226 of the Constitution of India is to be exercised against final order and not against the interim order. In the present case, no final order about the applicability of the Act has been passed, rather just an enquiry was in progress and the records were being summoned from the petitioner which was being avoided on one pretext or the other. The conduct of the petitioner in that respect cannot be appreciated. Whenever any record was required with a view to reach the conclusion about the applicability of the Act, petitioner must have been candid enough to furnish details of all documents so that correct decision must have been arrived at. It is open to the petitioner to lead any evidence to his choice on the date fixed but documents required under Annenxure 3, and other orders and directions must be passed in the matter preferably by July 31, 1993. The petitioner must co-operate in the enquiry and furnish all the documents required on the next date fixed. But there is no justification to issue the writ direction or order prayed for.
14. In view of the premises aforesaid the petition lacks merit and the same is dismissed. Interim stay, if any, is vacated. The respondents are directed to decide the matter as expeditiously as possible.