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Judgment
Ram Mohan Reddy
Employer aggrieved by order dt. 28.2.2007 Annexure-A of the Asst. Provident Fund Commissioner directing it to remit provident fund contribution in respect of eight employees represented by 2nd respondent-Trade Union with effect from the dates mentioned, questioned the same in an appeal A.T.A. No, 208(6)/2007 before the Provident Fund Appellate Tribunal, New Delhi, which when confirmed by order dt. 10.5.201] dismissing the appeal, has presented this petition.
Having heard the learned counsel for the parties, perused the pleading and examined the order impugned, undoubtedly the order Annexure-A of the Asst. Provident Fund Commissioner suffers from an error apparent on the face of the record. I say so because the said Authority did not hold an enquiry as contemplated by Section 7-A(2) of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 (19/1952) and in compliance of the observations of the Supreme Court in Food Corporation of India Vs. Provident Fund Commissioner and Others, wherein it is held that mere production of records by the 2nd respondent-trade union in support of the ease tor payment of contribution in respect of 8 employees ipso facto cannot be considered as admissible evidence over the contents of the said documents. The documents when produced required proof of its contents by examination of witnesses who were required to be tendered for cross-examination by the employer. Such is not a procedure adopted by the Asst. Provident. Fund Commissioner and therefore, conclusion arrived at on the basis of the documents produced by the 2nd respondent-trade union stating that 8 of the workmen were employees under the petitioner from the dates mentioned in the order, is by adopting a perverse procedure.
In an adversarial system of administration of justice when a party approaches the Court of law specifically alleging certain facts to secure a relief, the pleading is called FACTA PROBANDA. Denial of the said facts by the other side results in an issue and to prove the same, the party on whom the burden lies is required to place acceptable legal evidence which is known as FACTA PROBANTIA. They go hand in hand and a Court of law can ill afford to spell out a case in favour of such a litigant either merely acting an FACTA PROBANDA or FACTA PROBANTIA. This is the law laid down in by the Apex Court in Kenchawwa Vs. Amogonda and Others,
Keeping in mind the opinion of the Apex Court in Food Corporation of India''s case (supra) and the procedure in law, in the adjudication of the dispute between the parties, it cannot but be said that the order Annexure-A of the Asst. Provident: Fund Commissioner is illegal and unsustainable. As a consequence, the order of the Appellate Tribunal without making reference to the law or procedure required to be followed by the Asst. Provident Fund Commissioner is unsustainable too.
In the result, the petition is allowed. The orders Annexures-A and B of the authorities are quashed and the proceeding remitted to the Asst. Provident Fund Commissioner for consideration afresh after extending reasonable opportunity of hearing to the parties concerned. including the recording of evidence both oral and documentary and thereafter to pass orders in accordance with law, in the light of the observations noticed supra.