Tapan Kumar Bhattacharyya vs Assistant Provident Fund Commissioner and Others

Jayanta Kumar Biswas

The petitioner in this Article 226 petition dated November 14, 2005 is alleging that he has not been paid provident fund for the entire period he has served the establishment.

From the letter of the Asstt. P.F. Commissioner, SRO, Howrah dated May 20, 2005 Annexure P9 at p.69, it appears that the establishment was directed to submit necessary documents and deposit provident fund contributions for the petitioner''s benefit. Since nothing was done and the provident fund organization did not release provident fund, the petitioner took out this petition. Counsel for the establishment submits that there was no scope for depositing contributions for the petitioner''s benefit for the period in question, since during the period the petitioner was not in actual employment of the company. He says that in compliance with the order of the Supreme Court the petitioner was paid compensation and hence there was no question of depositing contributions to any fund. He points out that the establishment has been granted exemption from the statutory schemes.

The undisputed position is that the establishment did not respond to the letter dated May 20, 2005. The, Commissioner did not determine the establishment''s liability with respect to the petitioner as well. Before asking the establishment to deposit any amount, the; Commissioner was required to determine the liability and it was to be done by initiating proceedings tinder Section 7-A of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952. Without determining the liability, if any, the establishment cannot be called upon to deposit any unspecified amount. The Commissioner ought to have initiated proceedings, especially when the establishment remained silent and the petitioner was claiming provident fund'' in view of the order of the Supreme Court. Under the circumstances, I am of the view'' that the commissioner should initiate the requisite Section 7-A proceedings and determine the establishment''s liability, if any.

For these reasons, I dispose of the petition ordering as follows. Within a fortnight from the date of communication of this order the provident fund Commissioner shall initiate Section 7A proceedings with respect to the petitioner''s claim for provident fund. The establishment will be free to take all points before the Commissioner, and the Commissioner shall decide whether in view of the order of the Supreme Court, the establishment is liable to pay provident fund and other allied dues for the period in question. Needless to say that final order in the proceedings shall be passed after giving reasonable opportunity of hearing to all concerned including the petitioner and the establishment. The Section 7A order shall be communicated to all. No costs. Certified xerox according to law.