J K College Of Nursing & Paramedicals Vs UOI & ORS (Delhi High Court)- It was held that if any establishment or employer claims to be not covered under the said Act, then it is for the employer to place sufficient cogent and convincing material before the designated authority in an enquiry under Section 7A of the Act, so as to satisfy the Authority with regard to non-applicability of the Act and further held that on failure to place any such material, the onus cannot be shifted on the EPF authorities to prove the applicability of the Act. It was yet further held that the EPF authorities under no circumstances can be in possession of necessary records evidencing the extent of strength of employees in any particular establishment.
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952
J K COLLEGE OF NURSING & PARAMEDICALS
Vs UOI & ORS
Date of decision: 24th May, 2011
W.P.(C) 8195/2010 & CM No.21123/2010 (for stay)
HONOURABLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
3. The Appellate Tribunal, relying upon Saraswati Construction Company v. Central Board of Trustees 171 (2010) DLT 3, held that if any establishment or employer claims to be not covered under the said Act, then it is for the employer to place sufficient cogent and convincing material before the designated authority in an enquiry under Section 7A of the Act, so as to satisfy the Authority with regard to non-applicability of the Act and further held that on failure to place any such material, the onus cannot be shifted on the EPF authorities to prove the applicability of the Act. It was yet further held that the EPF authorities under no circumstances can be in possession of necessary records evidencing the extent of strength of employees in any particular establishment.
10. I also find the view in Saraswati Construction Co. (supra) to be in consonance with the judgments of the other High Courts. Reference may be made to:-
(a) Chudasma Engineering Works Vs. RPFC, Bangalore 1985 (67) FJR 363 (Karnataka).
(b) Employees’ State Insurance Corporation Vs. Rasu Tools Ltd. (2000) I LLJ 372 (Andhra Pradesh)
(c) Regional Director, ESI Corporation, Bangalore Vs. Malekopmath Metal Forms Private Ltd. 2001 (6) Kar. LJ 139.
(d) Regional Director, ESI Corporation Vs. G. Sivaprasad (2010) I LLJ 279 (Kerala).
(e) Gopi Chand Vs. Employees’ State Insurance Corporation 172 (2010) DLT 565.
(f) Syndicate Printers Vs. Regional Director, ESI Corporation MANU/TN/0515/2011.
11. Reference may also be made to the Division Bench judgement of the Patna High Court in Bankim Chandra Chakravarty Vs. Regional Provident Fund Commissioner AIR 1958 Patna 314 laying down that once the authorities under the Act have held the number of employees in the establishment to be more than required to bring the establishment within the purview of the Act, it is up to the person challenging the said finding to establish that infact the number is less. A Single Judge of this Court in Laksmi Restaurant Vs. The Regional Provident Funds Commissioner, Delhi 10 (1974) DLT 369 also held that if anybody feels aggrieved by some order and files a petition in the High Court, he must bring sufficient material before the Court to displace the finding and the same has nothing to do with the question of onus of proof before the Provident Funds Commissioner. It was further held that in matters like this, the question of onus of proof is immaterial; the Provident Funds Commissioner is an authority created by the statute who has to administer the statutory provisions according to law and for this purpose he is entitled to collect material by resort to powers under various provisions of law including by examination of the books of accounts and others records of establishments.
12. In the present case, the EPF Authority in the order dated 19th February, 1999 has recorded as to how the petitioner employer dodged the proceedings and failed to appear and produce documents repeatedly. Similarly in the order dated 9th November, 2000 of the EPF Authority also, it is recorded that records maintained by the petitioner establishment are in complete variance with the statement originally made by the same establishment; that though the petitioner claimed most of the employees to be excluded from the purview of the Act but could not submit any proof thereof; that the names and salary reflected in the salary register were totally at variance with the survey account taken from the ledger for the relevant period and the salary records maintained for teaching and non-teaching staff were found to conceal the names of all the employees. The EPF Authority in the said order further recorded that the petitioner did not even reveal the particulars and address of the various persons whose names figured on its records. The EPF Authority accordingly held the petitioner to be guilty of concealment of facts regarding employees and salary, of fabrication of records and of evasion of statutory obligations.
13. In the present case, the petitioner has not placed any material before this Court to displace the findings returned by the authorities below and which onus as laid down in Laksmi Restaurant (supra) was definitely on the petitioner.
14. Moreover, the aforesaid are findings of facts relating to the proceedings before the Authorities and no ground is shown for interference in exercise of the powers of judicial review. In any case, the counsel for the petitioner had confined the argument as aforesaid only to, the reasoning given by the Tribunal as to burden of proof, being erroneous in law.
15. The counsel for the respondents has relied on Syed Yakoob v. K.S. Radhakrishnan 1963 INDLAW SC 153 & Hari Vishnu Kamath v. Ahmad Ishaque 1954 INDLAW SC 212 as to the scope of writ jurisdiction.
16. As far as the arguments of the counsel for the petitioner of there being no mention of number of employees as 37 in the order under Section 7A is concerned, a perusal of the order of the Tribunal shows that it was the argument of the petitioner itself before the Tribunal that the order under Section 7A covering it under the Act on the allegation that it engages 37 persons is illegal. A reading of the said order does not show that there was any dispute in this regard and that was the precise challenge before the Tribunal. A perusal of the writ petition also does not show that any ground in this regard has been taken. The counsel for the petitioner admits that it has not been expressly so stated in the writ petition that there is no finding of 37 employees. All this leads one to believe that the challenge now being made orally on this ground is only to buy time.
17. There is no merit in the petition the same is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE)
May 24, 2011