(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. When the civil application came for hearing, the main appeal itself has been finally heard with the consent of the learned advocates appearing for both the sides.
2. The relevant facts are that the appellant is a registered trust under the Bombay Public Trust Act and running school in the name of Smt. Manekben Chhotalal Shah Prathmik Vidhyalala at Gabat. Proceedings came to be initiated by the Provident Fund authority, respondent herein, for compliance to the provisions of the Employees Provident Fund Act, 1952. The showcause notice was issued. Reply was submitted and thereafter, the order came to be passed on 29.12.2000 by the Assistant Provident Fund Commissioner assessing the amount of Rs.5,49,018/ and as the amount of Rs.1,89,919 was already paid, the appellant was directed to pay the amount of Rs.4,09,099/ within a period of 15 days failing which the amount was to be recovered as arrears of land revenue. As per the appellant, earlier petition was preferred before this Court being Special Civil Application No.4632/01 which came to be withdrawn with a view to file review application. Ultimately, the appeal was preferred before the Employees Provident Fund Appellate Tribunal against the aforesaid order of Assistant Provident Fund Commissioner. In the appeal, the contention was raised by the appellant that so far as the period from 31.03.1982 to 31.03.1995 is concerned, PF contribution from the salary of the employee was not deducted and therefore, the said amount be waived and the appellant admitted in the capacity of the employer the liability to pay their contribution for the period from 1982 1995. The appellate authority decided the appeal having found that the principles of natural justice were not violated. But there is no discussion in the reasons recorded by the appellate authority for entitlement of the waiver or not or as to whether the question of waiver deserves to be considered or not. Being aggrieved by the order of the appellate authority, the appellant preferred writ petition before this Court being Special Civil Application No. 15140/11 which came to be rejected by the learned Single Judge ex parte. Under the circumstances, the present appeal before us.
3. We have heard the learned counsel appearing for both the sides.
4. It is an undisputed position that no reasons are recorded by the appellate authority in the order dated 16.04.2010 which was impugned before the learned Single Judge on the aspects of waiver of the amount towards employee's contribution. We find that if the amount was not deducted from the salary of the employee concerned, it was required for the appellate authority to examine as to whether such amount can be waived for the purpose of recovery under the Act or not and the reason being that such amount is not recovered by the employer and the employee concerned has been already paid the portion of deduction being full salary without any deduction thereof. In any case, such was an important aspect more particularly when contention was raised in the written submissions, copy whereof is produced at page 19 (AnnexureD), the appellate authority being a quasi judicial authority, was required to deal with the same. Had the aspect of waiver considered by the appellate authority, the final order could have been different. We therefore find that the order of the appellate authority which was impugned at AnnexureE in the main Special Civil Application deserves to be set aside on the said ground. As the learned Single Judge had dismissed the petition summarily and the present appeal being a continuous proceeding of the Special Civil Application, being intra court appeal, the matter could further be considered on merits and that we have found it proper to consider.
5. Under the circumstances, the matter deserves to be remanded to the appellate authority to consider the question of waiver and thereafter to decide afresh.
6. However, the fact remains that even as per the appellant, it has admitted its liability for its own contribution from 19821995 and if we consider the total amount assessed by the PF authority, in any case, it may be approximately not less than 50% of the amount of Rs.5.99 lakhs plus the interest at the rate of 8% p.a. on the said amount which remained unpaid from 2000 till today. It has been stated that pending the present proceeding Rs.75000/ has been additionally deposited. Therefore, on adhoc basis, we find it proper to direct the appellant to deposit the additional amount of Rs.1,40,000/ with the PF authority and until the appeal is finally heard, the further recovery can be stayed.
7. Mr.Suthar, learned counsel appearing for the appellant agreed that the appellant shall deposit the aforesaid amount within one month.
8. In view of the aforesaid reasons recorded, we find that the learned Single Judge committed error in dismissing the petition summarily and we find it proper to interfere with the order of the appellate authority.
9. Hence, the following order
1) The impugned order passed by the appellate authority (Annexure E) dated 16.04.2010 is set aside with the direction that the appeal being ATA329(5)/2002 shall stand restored to the file of Employees Provident Fund Appellate Tribunal and it is further directed that the appellate tribunal shall rehear the appeal and shall consider all contention as available in law including the aspect of waiver in light of the observations made by this Court in the present judgment and the appeal shall be decided preferably within a period of two months from the receipt of the order of this Court.
2) It is further observed and directed that the appellant hereinoriginal petitioner shall deposit an amount of Rs.1,40,000/ with the Provident Fund authority within a period of one month from today and if the amount is so deposited within the stipulated period, until the appeal is finally decided by the appellate Tribunal, further recovery of the remaining amount shall remain stayed.
3) It is observed that if there is failure on the part of the appellant to deposit the amount, the recovery proceedings shall proceed in accordance with law, but after the expiry of the period of one month. The deposit as may be made by the appellant or the recovery made, if any, on account of the failure to deposit the amount by the appellant, both shall be subject to further orders as may be passed by the appellate tribunal as per the earlier directions.
8. The order of the learned Single Judge in the Special Civil Application is set aside. The appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.
9. In view of the order passed in the main Letters Patent Appeal, the Civil Application would not survive and shall stand disposed of accordingly.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy