Designco vs Regional Provident Fund Commissioner and Others

Sunita Gupta, J.

CM No. 12542/2015 (exemption)

Exemption allowed subject to all just exceptions.

The application stands disposed of.

W.P.(C) 6849/2015 & CM No. 12541/2015 (stay)

The petitioner is aggrieved by the order dated 5.6.2015 passed by the Employees'' Provident Fund Appellate Tribunal, Delhi in ATA No. 1335 (14)/2014 rejecting the petitioner''s application for furnishing a bank guarantee for the amount of pre-deposit and extended the time by four (4) weeks more to deposit 50% of the assessed amount. Notice.

Mr. Arvind Kumar Verma, learned counsel for the respondent appears and accepts notice on behalf of the respondents.

With the consent of the parties, the writ petition is finally heard.

Mr. S.K. Gupta, learned counsel for the petitioner draws attention of this Court to an order dated 27.09.2010 passed by Madhya Pradesh High Court passed in Vijay Industries v. Regional Provident Fund Commissioner & Anr. [Writ Petition No. 13631/2010] and an order passed by this Court in Socrus Pharmaceutical Limited Vs. Assistant Provident Fund Commissioner, wherein similar prayer for furnishing a bank guarantee was allowed.

One of the points raised in the appeal is that the Regional Provident Fund Commissioner has determined Rs. 21,21,061 for the financial years 2011 -12 and 2012-13 by passing an order under Section 7A of the Employees'' Provident Fund and Misc. Act, 1952 by including the ''Excluded Employees'', wages who had already filled Form-11. In fact, as per definition of ''Excluded Employees'' as defined under paragraph 2(f) of the Scheme, 1952, these excluded employees as per paragraph 29(2) of the Scheme, 1952, to whom the respondent No. 2 determined the provident fund for the alleged period, are not entitled to get provident fund benefits. Hence, these ''Excluded Employees'' are not entitled to get provident fund benefits as per provisions of the Act, 1952 and the Employees'' Provident Fund Scheme, 1952 framed thereunder. In the circumstances, the prayer for furnishing a bank guarantee equivalent to 50% of the impugned amount appears to be reasonable.

Consequently, the impugned order dated 05.06.2015 passed by the Employees'' Provident Fund Appellate Tribunal, Delhi in ATA No. 1335 (14)/2014 is set aside. The petitioner is directed to furnish a bank guarantee equivalent to the ordered amount to the satisfaction of the Tribunal within a period of four (4) weeks from today.

It is submitted by counsel for the petitioner that due to non-deposit of the amount, the appeal has been dismissed by the Tribunal. In case the bank guarantee is furnished, as directed, it will be open to the petitioner to approach the Tribunal for revival of the appeal, which will be entertained by the Tribunal for disposal in accordance with law.

The petition stands disposed of in terms of this older. Pending CMs also stand disposed of.

A copy of this order be given dasti to counsel for the petitioner.