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PETITIONER: FOOD CORPORATION OF INDIA

       Vs.

RESPONDENT: PROVIDENT FUND COMMISSIONER AND ANR.

DATE OF JUDGMENT26/10/1989

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) THOMMEN, T.K. (J)

CITATION:  1989 SCR  Supl. (1) 755  1990 SCC  (1)  68  JT 1989 (4)   380        1989 SCALE  (2)1029

ACT:     Employees’ Provident Funds and Miscellaneous  Provisions Act,  1952: Section 7A--Determination of amounts payable  by employer as contribution--Statutory authority--Whether  duty bound  to  summon evidence when requested by  party,  before coming to proper conclusion.

HEADNOTE:     Respondent No. 1--the Provident Fund Commissioner called upon  the  appellant--Food Corporation of India  to  deposit contribution  payable by it under the  Employees’  Provident Fund  and Miscellaneous Provisions Act, 1952 and the  scheme thereunder,  in respect of workers employed by the  contrac- tors  appointed  by the appellant for handling  storing  and transporting food grains and other articles in its depots in Rajasthan.  On appellant’s non-compliance, Respondent No.  1 made  an order under Section 7A of the Act  determining  the amount  payable  by  the appellant.  Against  the  aforesaid order,  the  appellant filed writ petition before  the  High Court,  which dismissed the same. Hence the appeal, by  spe- cial leave, by the appellant--Corporation.     It was contended that the appellant was denied a reason- able  opportunity to produce actual proof of  identification of  workers  in  respect of whom  contribution  was  payable inasmuch as Respondent No. 1 neither gave notice to contrac- tors, who were in possession of the relevant lists of  work- ers,  nor made them parties to the proceedings, despite  its repeated requests. Allowing the appeal,     HELD:  The  Commissioner, while  conducting  an  inquiry under  Section 7A of the Employees, Provident Fund and  Mis- cellaneous  Provisions Act, 1952 has the same powers as  are vested  in  a court under the Code of  Civil  Procedure  for trying  a  suit.  Thus, the Commissioner  is  authorised  to enforce attendance in person and also to examine any  person on  oath. He has the power requiring the discovery and  pro- duction  of documents. This power was given to  the  Commis- sioner to decide not abstract questions of law, but only  to determine actual concrete differences in payment of  contri- bution and other dues by identifying the 756 workmen.The  Commissioner should exercise all his powers  to

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collect all evidence and collate all material before  coming to proper conclusion. That is the legal duty of the  Commis- sioner.  It  would be failure to exercise  the  jurisdiction particularly  when a party to the proceedings  requests  for summoning  evidence from a particular person.  [757H;  758A; F-H]     In the instant case, the appellant--Corporation had some problems  in collating the lists of all workers  engaged  in depots  scattered  at  different places.  It  requested  the respondent--Commissioner  to summon the contractors to  pro- duce the respective lists of workers engaged by them. Howev- er, the appellant--Commissioner did not summon the  contrac- tors,  nor  the  lists maintained by them.  The  matter  is, therefore, remitted to the Commissioner for fresh  disposal. [757F; 759A]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4552  of 1989.     From  the  Judgment and Order dated 23.12. 1988  of  the Rajasthan High Court in C.W.P. No. 13 of 1987. G.L. Sanghi and Y.P. Rao for the Appellant.     C.S.  Vaidyanathan,  S.R. Setia and K.V. Mohan  for  the Respondents. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. Special leave granted.     Having  heard counsel on both sides and  having  perused the  material on record, we are of opinion that  the  matter requires reconsideration by the Provident Fund Commissioner.     The  Food  Corporation of India has  depots  located  at various places in Rajasthan for handling storing and  trans- porting  food  grains and other articles. It  has  appointed contractors for execution of such works and the  contractors in  turn engaged some workers. In respect of  such  workers, the Provident Fund Commissioner called upon the  Corporation to deposit contribution payable under the Employees,  Provi- dent  Fund Act and the scheme framed thereunder. When  there was  non-compliance,  the Commissioner made an  order  under section 7A of the said Act determining amount payable by the Corporation.  Being  aggrieved by  that  determination,  the Corporation moved the 757 High  Court for relief under Art. 226 of  the  Constitution. The High Court has dismissed the petition. Hence the  Corpo- ration has appealed to this Court.     The  grievance complained of by the Corporation is  that it was denied of reasonable opportunity to produce  material in proof of identification of the workers in respect of whom the contribution was payable. It is urged that the  contrac- tors are in possession of the relevant lists and the Commis- sioner  has  not even given notice to contractors  nor  made them  parties  to the proceedings in spite of  repeated  re- quests  made  by the Corporation. Counsel for the  Union  of Workmen, however, contended that under the provisions of the Contract  Labour  (Regulation and Abolition) Act,  1970  the Corporation  being  the principal employer has  to  maintain list  of  workers; that it has failed to produce  such  list and,  therefore, it cannot throw the burden on the  contrac- tors to prove the case.     We  have carefully perused the Commissioner’s order  and also  the order of the High Court. The total amount  ordered to be payable comes to about Rs.22,48,000 in respect of  the employees  of depots namely: Udaipur, Jaipur, Ajmer,  Badmer

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and  Sawai Madhopur. The Commissioner has also directed  the Divisional  Officer,  Jaipur to deposit the  Provident  Fund Contribution i.e. Rs. 18,72,194 to the Fund being maintained by  the trustees of the establishment. It is indeed a  large amount  for the determination of which the Commissioner  has only  depended  upon  the lists furnished  by  the  workers, Union. It is no doubt true that the employer and contractors are  both  liable to maintain registers in  respect  of  the workers  employed.  But the Corporation seems to  have  some problems  in collating the lists of all workers  engaged  in depots  scattered at different places. It has requested  the Commissioner  to summon the contractors to produce  the  re- spective lists of workers engaged by them. The  Commissioner did  not summon the Contractors nor the lists maintained  by them.  He  has  stated that the Corporation  has  failed  to produce the evidence.     The  question,  in our opinion, is not whether  one  has failed  to  produce evidence. The question  is  whether  the Commissioner  who is the statutory authority  has  exercised powers vested in him to collect the relevant evidence before determining the amount payable under the said Act.     It  is of importance to remember that  the  Commissioner while conducting an inquiry under section (7A) has the  same powers as are 758 vested  in  a Court under the Code of  Civil  Procedure  for trying a suit. The section reads as follows:               "S.  7(A)  Determination of  Moneys  due  from               Employer--               (1)  The Central Provident Fund  Commissioner,               any  Deputy  Provident  Commissioner  or   any               Regional  Provident Fund Commissioner may,  by               order  determine the amount due from  any  em-               ployer  under any provision of this  Act  (the               scheme  or  the Family Pension Scheme  or  the               Insurance  Scheme as the case may be) and  for               this  purpose may conduct such inquiry  as  he               may deem necessary.               (2)  The Officer conducting the inquiry  under               sub-section  (1)  shall, for the  purposes  of               such  inquiry,  have the same  powers  as  are               vested  in  a Court under the  Code  of  Civil               Procedure, 1908, for trying a suit in  respect               of the following matters, namely:               (a) enforcing the attendance of any person  or               examining him on oath;               (b) requiring the discovery and production  of               documents;               (c) receiving evidence on affidavit;               (d) issuing commissions for the examination of               witnesses. and  any such inquiry shall be deemed to be a judicial  pro- ceeding within the meaning of Sections 193 and 228, and  for the purpose of Section 196 of the Indian Penal Code."     It  will  be  seen from the above  provisions  that  the Commissioner is authorised to ’enforce attendance in  person and  also  to examine any person on oath. He has  the  power requiring  the discovery and production of  documents.  This power  was given to the Commissioner to decide not  abstract questions  of  law, but only to  determine  actual  concrete differences  in  payment of contribution and other  dues  by identifying  the workmen. The Commissioner  should  exercise all  his  powers  to collect all evidence  and  collate  all material  before  coming to proper conclusion. That  is  the legal  duty  of  the Commissioner. It would  be  failure  to

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exercise  the jurisdiction particularly when a party to  the proceedings requests for summoning evidence from a  particu- lar person. 759     We, therefore, allow the appeal and reverse the order of the  Commissioner  and that of the High  Court.  The  matter stands remitted to the Commissioner to dispose it of  afresh and in accordance with law and in the light of the  observa- tion made.     The  parties  shall appear before  the  Commissioner  to receive further orders on December 12, 1989. The Commission- er, shall dispose of the matter within three months thereaf- ter. N  .P.V.                                              Appeal allowed. 760