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Judgment
Heard learned counsel for the petitioner and learned
counsel for State Employees Provident Fund Organization.
In the present writ application, the petitioner has
challenged the order dated 06.05.2016 passed by the Presiding
Officer of Employees Provident Fund Appellate Tribunal, New
Delhi in ATA No. 164(3) of 2008.
The facts of the case, in brief, are that a
proceeding under Section 7-A of the Employees'' Provident Fund
and Miscellaneous Provisions Act, 1952 (for short '' EPF Act '') was
initiated against the petitioner establishment. The petitioner
establishment was inspected by the Enforcement Officer of the
Employees Provident Fund Organization in the month of
December, 2003. After examining the ledgers and vouchers for the
period January, 2003 to March 2003, the Enforcement Officer
concluded that Rs.44,000/- was paid as wages and the
establishment had engaged about 30 labourers during the month of
March, 2003 and accordingly, the establishment in question was
coverable under the provisions of the EPF Act . Aggrieved with the
report of the Enforcement Officer, the petitioner submitted an
application before the Regional Provident Fund Commissioner,
Patna that the establishment had employed less than 20 employees
and thus it was not covered under the provisions of EPF Act .
Against the order dated 23.03.2005 passed by the Assistant
Provident Fund Commissioner, Bihar, Patna under Section 7-A of
the EPF Act whereby it was declared that the provisions of EPF Act
was applicable in respect of the petitioner establishment, the
petitioner filed an appeal before the Employees Provident Fund
Appellate Tribunal, New Delhi in ATA No. 164(3) of 2008 which
was dismissed on 05.07.2011.
The aforestated order was assailed by the
petitioner by filing a writ petition before this Court vide CWJC No.
15096 of 2011. The said writ application was allowed by this Court
vide order dated 03.12.2015. The operative portion of the said order
passed by this Court reads as under :-
"Accordingly, the order of the Appellate Tribunal i.e. order dated 05.07.2011 passed by the Employee Provident Fund Appellate Tribunal, New Delhi in ATA No. 164(3) of 2008 is hereby set aside and the matter is remitted back to the Appellate Tribunal to pass order afresh on the basis of materials already on record and after affording full opportunity of hearing to the parties. The writ petition stands allowed as directed hereinabove."
Thereafter, the matter was taken up by the
Appellate Tribunal on 06.05.2016 and since the petitioner failed to
appear before the Tribunal, the appeal was dismissed for want of
prosecution.
It is submitted by the learned counsel for the
petitioner that the petitioner was regularly attending the
proceedings before the Tribunal. It had already filed its
memorandum of appeal and other petitions on which it relied for
assailing the order passed by the controlling authority. He
contended that since the matter was remitted back to the Appellate
Tribunal for deciding the matter afresh, even if the appellant was
not represented on a particular date, the Tribunal ought to have
decided the case on merits on the basis of materials available on
record instead of dismissing the same in default.
Per contra, Mr. Sarva Deo Singh, learned
counsel appearing for the State Employees Provident Fund
Organization submitted that since there was no representation on
behalf of the petitioner, the Tribunal has rightly dismissed the case
for want of prosecution.
I have heard learned counsel for the parties and
perused the record.
Keeping in view the nature of the order passed
by this Court in CWJC No. 15096 of 2011, impugned order dated
06.05.2016 passed by the Appellate Tribunal cannot be sustained
for the simple reason that when this Court had directed the Tribunal
to decide the matter afresh on the basis of material available on
record, the Tribunal ought to have decided the matter on merits
instead of dismissing the same for want of prosecution.
In that view of the matter, order dated
06.05.2016 passed by the Presiding Officer of Employees Provident
Fund Appellate Tribunal, New Delhi in ATA No. 164(3) of 2008 is
set aside. The appellate tribunal shall proceed with the matter
afresh and decide the case on merits in accordance with law.
The writ application stands allowed.