M/S BHOLA TALKIES V. THE COMMISSIONER,EMPLOYEES PRO

CWJC/298/2011

AI Insights

The case involves M/S Bhola Talkies, represented by Shri Raj Kumar Singh, challenging an order by the Regional Provident Fund Commissioner-II, Muzaffarpur, under Section 26B of the Employees Provident Fund Scheme, 1952. The dispute centered on the employment duration of respondent no. 3, Ram Prasad Sharma, who claimed to have worked with the establishment since 1984, supported by an appointment letter and a job card. The petitioner contested this, acknowledging only a 1992 start date. The Provident Fund Commissioner had previously provided multiple opportunities for the petitioner to submit supporting documents, which were largely not provided, leading to an adverse inference against the petitioner.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 760810 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 12-04-2012
• Assessment Year: misc
• Laws Referred To: Employees Provident Fund Scheme, 1952
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JAI PRAKASH VERMA
• Assessee Lawyers: AWADHESH KUMAR
• Keywords: Employees Provident Fund; Employment; Provident Fund Dues; Regional Provident Fund Commissioner
• Section: 26B

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.298 of 2011 ====================================================== 1. M/S Bhola Talkies Through Shri Raj Kumar Singh (Partner M/S Bhola Talkies), S/O Late Bhola Singh Having Its Registered Office At Bhola Talkies, P.S.-Samastipur Town, P.O. & Distt.-Samastipur .... .... Petitioner/s Versus 1. The Commissioner,Employees Provident Fund Office, Regional Office, Patna 2. Regional Provident Fund Commissioner-Ii, Emplyees Provident Fund Organisation, Sub Regional Office, 1st Floor, New Vakalatkhana Building Court Compound, Muzaffarpur 3. Ram Prasad Sharma, S/O Late Nagina Sharma, Punjabi Colony, Ward No. 6, Gali No. 1 P.O.& Distt.-Sasmastipur .... .... Respondent/s ====================================================== Appearance : For the Petitioner : Mr. Awadhesh Kumar, Advocate For Res. Nos. 1 & 2 : Mr. Jai Prakash Verma, Advocate ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER 4 12-04-2012 The petitioner is aggrieved by order dated 7.10.2010, passed by the Regional Provident Fund Commissioner-II, E.P.F.O., S.R.O., Muzaffarpur under Section 26B of the Employees Provident Fund Scheme, 1952 which provides that “If any question arises whether an employee is entitled or required to become or continue as a member or as regards the date from which he is so entitled or required to become a member, the decision, thereon of the Regional Commissioner shall be final: provided that no decision shall be given unless both the employer and the employee have been heard.” In this context, the Patna High Court CWJC No.298 of 2011 (4) dt.12-04-2012 2 / 3 2 respondent no. 3 filed an application claiming that he was working with the establishment since 2.3.1984. In order to support his case he produced his appointment letter as well as the job card issued by the establishment and signed by the Labour Commissioner when he inspected the premises. The petitioner disputes the fact that respondent no. 3 was working with him since 1984, although he accepts that he was part of his establishment since 1992. Apparently from perusal of Annexure-10, it would appear that the petitioner was given an opportunity by the Provident Fund Commissioner to bring on record the documents such as his Cash Book, Balance Sheet, Income Tax Return and Attendance Register etc. for the period 1984 to 1992. The petitioner submitted his attendance register but did not submit any other document in support of his claim. The fact that he submitted his attendance register would be apparent from the order dated 26.5.2010. While passing the impugned order, the Provident Fund Commissioner has taken into consideration the so called appointment letter of the petitioner and his job card but had not taken into consideration the attendance register. The reason perhaps, lies in the fact that the attendance register could have only been supported by the Cash Book or any document to show the manner in which the establishment was making payment to the Patna High Court CWJC No.298 of 2011 (4) dt.12-04-2012 3 / 3 3 employee. An attendance register by itself cannot form the basis of holding that respondent no. 3 was not working with him since 1984. The Commissioner, therefore, has rightly drawn an adverse inference on this count. It may be noted that as many as six opportunities were given to the establishment to produce supporting documents which he did not do so. This Court however, finds that the order is somewhat incomplete as it directs that the establishment is to pay the dues from 1.10.1984 to 13.4.1992 within 15 days without quantifying the amount to be paid and also envisages legal action on non-payment of dues. This part of the order shall remain stayed until such time as the amount is quantified by the concerned authority. Respondent no. 3 can file an application before concerned authority for quantifying the amount to be deposited as Provident Fund in the account of respondent no. 3. In case such an application is filed by respondent no. 3, the matter should be disposed of within a period of three months. This writ application is disposed of with the aforesaid observations. Sanjay/- (Sheema Ali Khan, J.) "