Hon'ble Saurabh Lavania,J.
(C.M.Application No.57208 of 2021).
Heard.
This is an application for amendment supported with an affidavit.
The application is allowed.
Let the proposed amendment be incorporated.
Order Date :- 21.5.2021 Vinay/-
Case :- MISC. BENCH No. - 10644 of 2021 Petitioner :- M/S Sahara India Financial Corp. Ltd.
Respondent :- U.O.I. Through Secy. Min.Of Labour And Anr.
Counsel for Petitioner :- Piyush Kumar Agarwal,Rahul Tripathi Counsel for Respondent :- A.S.G.,Akhilesh Pratap Singh Hon'ble Rajan Roy,J.
Hon'ble Saurabh Lavania,J.
Heard Ms. Kamini Jaiswal, learned Senior Advocate assisted by Sri Piyush Agarwal appearing for the petitioner and Sri Akhilesh Pratap Singh, learned counsel appearing for the contesting opposite party.
Facts of the case in brief are that the petitioner was subjected to assessment under the Employees' Provident Fund and Misc. Provisions Act, 1952 and an undated order was passed under Section 7-A, copy of which is annexed at page No.62. By the said order petitioner was held liable to payment of dues towards deposit in the Employees' Provident Fund to the extent of Rs.4,46,92,858/-. It is said that similar order were passed in respect of other Sister concerns M/S Sahara India etc. also and ultimately the matter went up to the Allahabad High Court in the case of M/S Sahara India, which directed the Commissioner, Provident Fund to consider the representation of M/S Sahara India. The said representation came to be considered by the Commissioner and decided by an order dated 31.12.2008, a copy of which is at page 93 of the writ petition. According to the petitioners as they had applied for exemption under para 39 of the Employees' Pension Scheme, 1995 and the same was pending therefore they were not liable to make the contributions and they had formed a private fund/ trust and were depositing the money in the said fund known as Sahara India Karyakarta Welfare Pension Fund Trust.
By his order dated 31.12.2008 the Commissioner, Central Provident Fund, Lucknow has accepted the liability of M/S Sahara India and other Sister concerns including the petitioner as stated, to the dues payable/ recoverable and as to the mode of recovery he held that petitioner had agreed to surrender the securities following the due process as per the Scheme. The Commissioner then held that the securities held by Sahara India Karyakarta Welfare Pension Fund Trust may be accepted following due process i.e. they may be accepted following due process as against the dues payable.
Learned counsel for the petitioner has invited the attention of the Court to page 70, which is a letter/ order of the Regional Provident Fund Commissioner, Lucknow by which it is said that the benefit of the order of the Central Provident Fund Commissioner, dated 31.12.2008 was to be extended to the petitioner also. Learned counsel for contesting opposite party accepts this fact.
Grievance of the petitioner is that the dues have been settled as per order dated 31.12.2008 and inspite of it, a show cause notice dated 20.03.2021 was issued to the petitioner, which was received a day or two thereafter, asking the petitioner to deposit Rs.4,46,92,858/- as assessed earlier under Section 7-A in pursuance to the order a copy of which is annexed as Annexure No.2 to the writ petition. The impugned notice dated 20.03.2021 was received by petitioner a day or two thereafter. The petitioner put in appearance before the Regional Provident Fund Commissioner, Lucknow on 01.04.2021 and applied to inspect the records. The said application was allowed and 20.04.2021 was fixed for inspection of records. However, on account of ongoing COVID-19 pandemic, the petitioner and its agents could not inspect the records. The next date was fixed by the Regional Provident Fund Commissioner, Lucknow as 05.05.2021. On 05.05.2021, there was a lock down as such petitioner could not appear. The petitioner filed this writ petition on 10.05.2021 before this Court challenging the notice dated 20.03.2021, but before the matter could be taken up before the Court, the Regional Provident Fund Commissioner, Lucknow has rushed to pass a final order on 13.05.2021, which has been sought to be challenged by an Application for Amendment (C.M. Application No. 57208 of 2021), which has been allowed.
Sri Akhilesh Pratap Singh, learned counsel for the Regional Provident Fund Commissioner, Lucknow submits that though the order of the Commissioner, Central Provident Fund dated 31.12.2008 was passed in respect of M/S Sahara India, the petitioner being a Sister concern, it was made applicable to it also but inspite of it there are dues payable by the petitioner, which have not been deposited. However, on being pointed out that the order has been passed in circumstances where the petitioner has not had an opportunity to place its version, the learned counsel fairly accepted that the matter may be remanded back with opportunity to the petitioner to submit its objections and to the authority concerned to pass a fresh order without entering into the merits of the controversy.
Considering the overall facts and circumstances of the case as the notice referred above was issued on 20.03.2021 and it was received a day or two thereafter by the petitioner as also the fact that inspite of having put in appearance on 01.04.2021, the petitioner's Officials could not inspect the records of the Commissioner's Office on account of COVID-19 pandemic and could not appear due to lock down, we are of the opinion that final order has been passed without the petitioner being heard in the circumstances narrated hereinabove. The least that is required in the matter is that the petitioner should have an opportunity to file its objections in terms of the show-cause notice, which contains the computation sheet of dues and also asks the petitioner to file its objections to the same we therefore, set-aside the final order dated 13.05.2021 only on this ground without touching the merits of the controversy and grant two weeks' time to the petitioner to file its objections personally or Online as feasible before the Regional Provident Fund Commissioner, Lucknow, who shall provide E-mail address for Online filing of objections, if required, if it is already not available with the petitioner, to facilitate this exercise. After submission of reply, if thepetitioner wants a personal hearing, as has been offered in the show-cause notice dated 20.03.2021, then the Regional Provident Fund Commissioner, Lucknow may either give him opportunity of personal hearing through video conferencing or if the petitioner is able to appear in person likewise as per the convenience of the parties. After this exercise, the Regional Provident Fund Commissioner, Lucknow shall pass his final order at the earliest preferably within ten days of receipt of objections, as submitted by counsel for the opposite parties Sri Akhilesh Pratap Singh.
Regarding inspection of records for the purposes of filing of objections within the aforesaid period it is provided that the petitioner's Officials, duly authorized, may present themselves in the Office of the Regional Provident Fund Commissioner, Lucknow, for inspection of the records adhering to the COVID-19 protocol on any working day in the next week, thereupon the Officials shall allow the inspection of records.
The writ petition is disposed of in the aforesaid terms.
Order Date :- 21.5.2021 Vinay/-