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CASE NO.: Appeal (civil)  5717 of 2001

PETITIONER: H.P. State Forest Corporation

RESPONDENT: Regional Provident Fund Commissioner

DATE OF JUDGMENT: 03/04/2008

BENCH: Tarun Chatterjee & Harjit Singh Bedi

JUDGMENT: J U D G M E N T NON-REPORTABLE

CIVIL APPEAL NO.5717 OF 2001 WITH C.A. No.5718/2001

HARJIT SINGH BEDI,J.

1.      These appeals are directed against the judgment and  order of the High Court of Himachal Pradesh at Shimla  whereby the order of the Presiding Officer of the Employees  Provident Fund Appellate Tribunal dated 15th December 1999  has been upheld and the direction issued thereunder to  remand the case for the re-determination of the contribution  with respect to the liability of the appellant Corporation has  been maintained.  The facts are as under: 2.      The Appellant Corporation (hereinafter called the  "Corporation") which is a company registered under the  Companies Act, came into existence on 1st April, 1974.   Proceedings for the deposit of the provident fund under the  provisions of the Employees Provident Fund and  Miscellaneous Provisions Act, 1952 (hereinafter called the  "Act") were initiated by the issuance of a notice dated 12th  December 1988 under section 7-A of the Act for determination  of the amounts due from the Corporation.  This notice  pertained to the period 1982-88.  The Corporation, through its  Regional Manager, contended, inter-alia, that the provisions of  the Act were not applicable to it inasmuch as it was not an  ’industrial establishment’ in terms of section 2(e) of the  Industrial Employment (Standing Order) Act, 1964 nor under  section 25(k) of the Industrial Disputes Act, 1947.    The  Regional Provident Fund Commissioner however in his order  dated 14th July 1999 took the view that the Corporation was  covered under Section 1(4) of the Act as it had voluntarily  submitted to its coverage and had been allotted a provident  fund code number as well.   The Commissioner then went into  the question as to whether the persons employed by the  contractor could be said to be the employees of the  Corporation and hence entitled to the benefits of the Act and  after examining the matter threadbare concluded that the said  employees were in fact employees of the Corporation and  therefore subject to the provisions of the Act and also drew up  an assessment of the amounts due from the Corporation.  An  appeal was thereafter preferred before the Presiding Officer,  Employees Provident Fund Appellate Tribunal wherein similar  contentions were raised by the Corporation.  The Tribunal in  its order of 15th December 1999 held that the Corporation was  indeed covered by the provisions of the Act but on the facts of

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the case opined that as the matter was stale and pertained to  the year 1982, it would be appropriate that the matter be  remitted to the Commissioner for re-determination of the  amount due  and for this purpose issued the following  guidelines: "In view of the above discussions, the appeal  is fit to be partly allowed and the case to be  remanded back for re-determination of the  dues with reference to the identifiable  employees only.  The appellant cannot be  pressed to produce such records which  under any Statute they are not made liable  to maintain or which they are authorized to  destroy because of expiry date.  The  appellants are directed to produce all the  records in their possession for the disputed  period and explain satisfactorily for those  which they cannot produce.  Contractors  may be summoned if the appellant make a  prayer for that and give full details.   However, it is the appellant’s liability to  maintain the records and produce them as  held by the Hon’ble Supreme Court.         Both the appeals are partly allowed.   Coverage of the appellant in respect of  contractors employees is held valid.  The  determination portion of the impugned  order is set aside.  The case is remanded  back for re-determination after giving  reasonable opportunity to the appellants to  prove their case."  

3.      The Corporation then filed a Writ Petition in the High  Court impugning the order of the Commissioner the Appellate  Tribunal but vide order dated 29th November 2000, the High  Court upheld the order of the Tribunal and dismissed the Writ  Petition.  It is in these circumstances that the matter is before  us.

4.      Mr. M.N. Rao, the learned senior counsel for the  appellant has at the outset very fairly pointed out that as of  today and in the light of the fact that the Corporation itself  had voluntarily submitted that it was covered by the  provisions of the Act the question of a dispute with regard to  the liability of the Corporation was now largely academic, but   has pleaded that as the employees in question were seasonal  employees and the matter pertained to a long gone period i.e.  1982-98, the record pertaining to the employees was not  available either with the Corporation or with the Contractors  and that in many a case those who stood to benefit were not  even traceable, it would be appropriate that the impugned  orders be quashed as they would not serve any useful  purpose.  It has also been pleaded that although there was no  limit prescribed under the Act within which proceedings under  section 7-A could be initiated, but under the  broad principle  that a reasonable period ought to be read into the Statute, the  present delay of 16 years from 1982 could not be justified.  

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The learned counsel for the respondents has, however, argued  that the Tribunal and the High Court had granted a limited  relief to the employees inasmuch that the examination of the  claim was to be limited only to those employees who could be  identified and that as the authorities below had exercised their  authority with respect to a beneficent legislation for the  weaker sections, it would be inappropriate to interfere with the  impugned orders.

5.      We have heard the learned counsel for the parties and  gone through the record.  We do appreciate that the inaction  on the part of the Commissioner to initiate proceedings within  a reasonable time, has to be deplored.  However, as the  Corporation has itself submitted that it was covered under the  Act and in view of the limited relief granted by the authorities  below and by the High Court, we are disinclined to interfere  with the matter at this stage.  We accordingly dismiss the  appeals but reiterate the recommendation that the amounts  due from the Corporation will be determined only with respect  to those employees who are identifiable and whose entitlement  can be proved on the evidence and that in the event the record  is not available with the Corporation (at this belated stage), it  would not be obliged to explain its loss, or that any adverse  inference be drawn on this score.  With this very small  modification, we dismiss the appeals.