EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL.

CHANDIGARH
ATA NO. 630 (II) / 2006.
M/s. Ropar Thermal Plant ............................................................. Appellant
V/s
Regional Provident Fund commissioner, ................................... Respondent
Date :- 17.10.2012
ORDER
The appellant filed an appeal before the Employees Provident Fund
Appellate Tribunal, against the order dated 15.02.2005, passed by the EPF
Authority under section 7-A of the Act, stating that the amount has been
determined without identification of beneficiaries which is illegal.
The EPF Appellate Tribunal observed that according to the rules of the
Contract Labour Regulation and Abolition) Central Rules, 1971, all the registers
and other records shall be preserved for a period of three calendar years from
the date of last entry therein. Hence, the appellant cannot be directed to produce
the records pertaining to contractors workers for the long back period. Even
register of employees of the contractors, muster roll, wage register etc. are to be
maintained by the contractors concerned and the principal employer is only to
maintain the register of contractors. It is also observed that the respondent
determined the PF dues without identification of concerned Employees /
beneficiaries. The burden to identify the employees is initially on the EPF
Authority on the basis of records. Thereafter, the burden shift to the appellant /
employer. The EPF Authority has to use powers as provided under section 7A
of the Act event to enforce attendance in person on oath. Under its power, the
EPF Authority is not to decide abstract question of law but only to determine
the actual concrete differences in payment of PF contribution and other dues by
identifying the employees. The Authority in this case, has failed to exercise
such powers as to identify the beneficiaries. The determination of dues, by
taking hypothetical percentage of the total contract value or labour charges
towards wages and recovering the same from the appellant would not help the
workers as the money would not reach them till the time they are identified.
Hence, impugned order is quashed. Matter is remanded back to the concerned
authority to conduct fresh enquiry into the matter and the PF dues should be
determined in accordance with law after hearing the parties concerned.

EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL.

CHANDIGARH
ATA NO. 217 (II) / 2011.
M/s. Harry Hyper Stories ................................................................. Appellant
V/s
Addl. Provident Fund commissioner, ........................................... Responded
Chandigarh
Date :- 20.01.2012
ORDER
The appellant filed an appeal before the Employees Provident Fund
Appellate Tribunal, against the order dated 31.01.2011, passed by the EPF
Authority under section 7-A of the Act, putting forth grievance that the
determination and fixing of liability of the appellant / principal employer
towards PF contribution dues without identification of beneficiaries by the
Enforcement Officer is illegal.
At the outset, it is mentioned that the workers will have to be
identified first before the amount is assessed and is recovered. Until and
unless, the beneficiaries are identified, the determined dues as decided by
the Enforcement Officer would not help the workers as the money would
not reach to them till the time they are identified.
The EPF Appellate Tribunal observed that the Enforcement Officer did
not identify the workers concerned while preparing his report on the basis of
which the amount of PF contribution has been determined. The money would
not reach the concerned workmen till the time they are identified. Burden to
identify the employees is initially on the EPF Authority. The appellant has
shown his inability to produce the records. Steps taken by the EPF Authority to
identify the workers are not apparent as per requirement of law before effecting
recovery. Under section 7-A of the Act, the EPF Authority has same powers as
are vested in Court for trying a suit. EPF Authority is not empowered to decided
abstract question of law but only to determine the actual concrete differences in
payment of PF contribution and other dues by identifying the employees. EPF
Authority should exercise its powers to collect all evidence before coming to
proper conclusion. The EPF Authority has failed to exercise its powers to
identify the beneficiaries. The Enquiry Officer has shown his ignorance in this
respect. Therefore, impugned order is quashed being illegal.

EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL.

NAGPUR
ATA NO. 139(9)/2005 AND 62(9) 2005
M/s. Intelligence security Force (I) Pvt Ltd. .................................. Appellant
V/s
Addl. Provident Fund commissioner, Nagpur ............................ Respondent
Date :- 19.06.2012
ORDER
The contentions of the appellant in the appeals is that the determination of
PF dues in proceedings under section 7A of the Act by the EPF Authority is not
fair as there is no identification of beneficiaries, and excess amount has been
assessed and recovered which is illegal.
The EPF Appellate Tribunal observed that determination of the Provident
Fund dues has been made by the EPF Authority on the basis of taking certain
percentage as wages and no identification of beneficiaries has been made out.
Determination of Provident Fund dues on the basis of certain percentage of the
amount as wages has been challenged by the appellants stating it to be not fair.
The workers have to be identified first before the amount is assessed and is
recoverable. Wide powers have been conferred on the 7-A authority in this
regard. Further the purpose of the Act is not to collect the money and keep it in
the coffers of the Government.
The whole purpose of the Act is to recover the Provident Fund dues from the
establishments of the employers, amenable to the provisions of the Act and to
disburse the same to the workers who are members of the Employees Provident
Fund Organization. Until and unless beneficiaries are identified, determining the
Provident Fund dues by taking hypothetical percentage of the total wages and
recovery of the same would not help the workers as the money would not reach
them. The amount recovered, in excess, has not been allocated to any of the
additional beneficiaries. Records of the appellants are in the custody of the
respondent, Commissioner for the last more than 7 years. Hence, the impugned
orders, passed by the EPF Authority, are set aside with the directions to the EPF
Authority to refund the excess amount, so recovered, along with interest @12%
p.a. to the appellant. The appeals are allowed.

EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL.

NAGPUR
ATA NO. 754(9)/2010
M/s. Sanvijay Rolling & Engineering Ltd. ...................................... Appellant
V/s
Addl. Provident Fund commissioner, ............................................. Responded
Date :- 02.02.2012
ORDER
The appeal of the appellant before EPF Appellate Tribunal, against the
order dated on 25.11.2010 of the EPF. Authority passed under sections 7-B of
the Act, is that the impugned order is illegal as the beneficiaries have not been
Identified by the Enquiry Officer.
The Honble Appellate Tribunal observed that the purpose of the Act is
not to collect the money and keep it in the coffers of the PF Authorities but to
recover the PF dues from the establishments which are amenable to the
provisions of the Act and to disburse the same to the workers concerned. But the
EPF Authority had not made any serious efforts to collect the essential material
/ evidence to ascertain the actual wages paid and the beneficiaries. Thus, it is
clear that the workers have to be identified first before the amount is assessed
and recovered. Hence, the impugned order wherein the beneficiaries have not
been identified is set aside and the appeal is allowed.

THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL

NEW DELHI
ATA NO. 53(9)/2008
BETWEEN
M/s. George Construction Company.

.................. Appellant

And
APFC, Nagpur

................ Respondent
ORDER
DATE :- 24. 01.2008

Present : Shri S. N. Khandelwal, Counsel for the appellant

Shri R. R. Rajesh, Counsel for the respondent
The appeal has been filed under Section 7 I of the Employees Provident
Fund and Miscellaneous Provisions Act, 1952 (for short the Act) against the
order dated 11.01.2008 of the APFC, Nagpur passed in the proceedings
conducted under Section 7-A of the Act whereby the appellant establishment
was assessed for the PF liability in respect of casual worker engaged for the
period from 1997-98 to 2006-07.
2.
The case of the appellant is that the appellant is engaged in the business
of construction activities in Nagpur and other adjoining areas. The construction
activates are carried out throughout the year, in open and in-house, under
different climatic conditions. The peculiar fluctuation in the climatic conditions
and environment makes it incumbent upon the appellant contractor to engage
labour who can withstand such conditions. As a result, the appellant engaged
different set of people for different kind of work in different climatic conditions.
It is also stated that in the construction activities, the building contractors
undertakes various different activities, viz., excavation work, foundation work,
masonry work, centering, plumbing, electrification plastering and work relating
lying pipelines etc. The workers for all different jobs are engaged separately
because common worker cannot do all kind of work. Further, the different job is
to be done at different stage. The duration of work of all these different
5

activities is very short. Also, the workers engaged for the job are rural workers
and agricultural seasonal workers. The employment of these workers is very
short for temporary phase and there is no continuity of work by these workers.
The appellant further stated work awarded to it is in turn awarded to petty
contractors/ sub contractors. The said petty contractor, depending on the nature
of job involved get the work done through its own workers. For the said work
the appellant has no supervision or control.
3.
The Regional Provident Fund Office, Nagpur took cognizance of the
matter and found that the appellant is not extending the provident fund benefits
to the casual workers engaged at the work site. The respondent issued notice to
the appellant contractor calling upon to it as why it for both the parties and Shri
Salil Shanker, RPFC-II at length. The First contention of Shri Dandekar the LD.
Counsel appearing for the Appellant is that the workers engaged for
construction activities at the work sites of the appellant have no assured
continuity of work. Normally the construction work awarded to the Appellant
by the Government, Semi Government and public bodies is further awarded to
the several sub contractors by the appellant. The sub-contractor further awards it
to the petty contractors or the kedars who in turn employ daily rated casual
workers who are usually migratory labours. There is no supervision or control
by the appellant over the daily rated casual workers engaged at the work site.
Thus, these site casual workers are not eligible for the PF benefits. the Builders
Association of India challenged the said notice before the High Court of
Bombay Bench at Nagapur in Writ Petition No. 2593 of 1997. The said Writ
Petition was partly allowed by the Honble High Court directing the Provident
Fund Authorities to initiate enquiry proceedings under section 7-A of the Act
and decide the matter within the stipulated period. The respondent initiated the
proceedings under section 7-A of the Act. The Enquiry Officer issued notice to
the appellant. Appellant filed a reply and also gave an undertaking to pay its
share as per the provisions of the EPF & MP Act, if any person establishes his
employment with the Appellant in future and indemnifying the Respondent in
regard to any such claim raised at any future date.
4.
During the enquiry proceedings, an investigating team constituted by the
respondent, made a visit to the Appellants establishment and collected certain
documents including the list of employees engaged. The enquiry officer, relying
on the reports submitted by the squad, concluded the enquiry proceedings vide

order dated 11.01.2008 and assessed the PF dues for the period 1997-98 to
2006-07. The order is challenged before this Tribunal.
5.
The Respondent has filed a reply to the appeal contending that the
coverage of the Act should be extended to all the employees engaged directly or
indirectly by the appellant in connection with affairs of establishment. The
respondent submitted that a worker, in accordance with para 26(2) of EPF
Scheme, is eligible for the PF fund as soon as he joined the organization in
connection with the work of the establishment. This provision has been upheld
by the Apex Court in the case of JP Tobacco Vs. UOI reported in 1 II CLR 369.
It is further contended that the appellant had intentionally failed to produce
documents asked for to identify the number of employees engaged.
6.
Heard the counsels for the parties. The criterion to define the term
employee under a given Act is laid down by the Honble Apex Court in the
case of The Provident Fund Inspector, Guntur Vs. T. S. Hariharan (AIR 171 SC
1). In this case, Honble Apex Court has observed that:
9.Considering the language of Section 1(3)(b) in the light of the
foregoing discussion it appears to us that employment of a few persons on
account of some emergency or for a very short period necessitated by some
abnormal contingency which is not a regular feature of the business of the
establishment and which does not reflect its business prosperity or its financial
capacity and stability from which it can reasonably concluded that the
establishment can in the normal way bear the burden of contribution towards the
provident fund under the Act would not be covered by this definition. The word
employment must therefore, be construed as employment in the regular
course of business of the establishment : such employment obviously would not
include employment of a few persons for a short period on account of some
passing necessity or some temporary emergency beyond the control of the
company. This must necessarily require determination of the question in each
case on its own peculiar facts. The approach pointed out by us must be kept in
view when determining the question of employment in a given case.
7.
The high Court of Bombay, Branch at Nagpur in the case of M/s.
Sandeep Dwellers Pvt. ltd vs Union of India (2006 (III) CLR 748), by
following the decision of the Apex Court in T. S. Hariharan (Supra) has also
held that it is within the competence of the PF authorities to adjudicate on this
issue whether the workers engaged for shorter duration are eligible to be
included in the definition of employee under Section 2(f) of the Act.
7

Therefore, the responsibility to identify the employees is vested in the Enquiry

Officer appointed under Section 7A of the Act. The Enquiry Officer has rightly
taken the cognizance of this issue in the 7A enquiry conducted by him. The
Enquiry Officer, in order to determine the actual beneficiaries in the appellants
establishment, had deputed a squad for inspection of the appellants business
premises. The squad inspected the annual Balance Sheet including various
expenses relating to material and site arrangements etc. and on the basis of that
inspection submitted a report to the respondent. On the basis of the report
submitted by the squad, the Enquiry Officer identified 61 employees and
assessed the PF dues. No justification or basis for identification of these
employees is assigned anywhere in the order. The Learned Counsel for the
respondent contended that the appellant is in the construction business since
long and he is expected to maintain the records the employees engaged as well
as the sub-contractors hired to attend his work. On the inspection conducted by
the squad, it is alleged that the appellant refused to cooperate with the
inspection team/squad and denied the access to the relevant attendance register
and the records of the past years, and, since, the appellant has not allowed the
access to the relevant records of the past years, the respondent has no option but
to rely on the attendance register for the current to determine the number of
employees engaged in the past years. This submission of the appellant has no
merits. Under section 7A (2) of the Act, the Enquiry Officer, appointed under
Section 7A of the Act, has all the powers of a court under the Code of Civil
Procedure, 1908 for trying a suit in respect of the matters relating to (a)
enforcing the attendance of any person or examining him on oath; (b) requiring
the discovery and production of documents; (c) receiving evidence on
affidavits; and (d) issuing commissions for the examination of witnesses. The
Enquiry Officer has not exercise all these powers properly and effectively to
recover the old records etc to determine the actual number of employees
engaged by the appellant establishment. The enquiry officer in the impugned
order has observed that, the identification of workers and assessment of dues is
a continuous process and should be taken up accordingly buy the Circle
Officer. These observations of the Enquiry Officer indicates that he has without
conducted any enquiry to examine and determine the number of employees,
adopted the figures and version given by the department about employees
indentified. Its therefore, follows that the identification\ of workers is not based
on any evidence and is without any enquiry, which is not sustainable in law.
8

8.
Shri Khandelwal further submitted for waiver of the employees share for
the past period since the Appellant has not deducted the amount from the
employees salary in view of the stay granted by the Honble High Court. In this
regard, reliance can be placed on the Apex Courts decision in the case of
District Exhibitors Association vs Union Of India (AIR 1991 SC 1381),
wherein their Lordship held that the employer has the liability to deduct the
amount form the wages payable and not from the wages paid. He explained that
the payment of employees contribution by the employer with the corresponding
right to deduct the same from the wages of the employees could be only for the
current period during which the employer has also to pay his contribution. It is
noted that the basic purpose of the Act could be achieved only if it is ensured
that the employees are benefited by the EPF Scheme. The observations made by
the Honble Apex Court in case of Provident Fund Commissioner vs TS
Hariharan (AIR 1971 SC 1519) assume importance here :
The Act was brought on the statute book for providing for the institution
of the provident Fund for the employees on the factories and other
establishments. The basic purpose of providing for provident funds appears to
be to make provision for the future of the industrial worker after his retirement
or for his dependents in case of his early death. To achieve among the workers a
spirit of saving something regularly, and also to encourage stabilisation of a
steady labour force in Industrial Centres.
Therefore, in the absence of proper identification of employees /
beneficiaries, the desired objectives of the Act could not be achieved by
directing the appellant to deposit his contribution alone. the purpose of the Act
would be served only when the employees are identified and the share of
respective parties is collected for the welfare of the beneficiary.
9.
Shri R. R. Rajesh, Id. Counsel for the Respondent contended that the
moment the person joins the establishment even for the single day it be
construed as the joining and he becomes an employee within the meaning of
section 2(f) of the Act. It, therefore, casts the statutory liability on the
employers share and other charges to the Respondent as the beneficiaries were
known for that particular time. This contention is sustainable only when the
identification has been done at the particular point of time. But where there is no
identification of employees and even the employer are not traceable in future, it
would be futile to call the employer to fulfil his part of obligation under the Act
by making its part of PF contribution. Therefore, the deduction of the
9

contribution would not have sufficed the purpose. And in such circumstances, if
the deduction is permitted, it would defeat the very purpose of the Act.
10. In view of the above discussion, the impugned order suffers from
infirmities and is legally not correct and valid. The same is quashed. The appeal
is allowed. The determination of the respondent for the Period 2001-2002 to
2006-2007 is not as per the guidelines and the test laid down by the Honble
High Court and thus liable to be set aside. The employees share of contribution
for the past period is hereby waived (2005-06 & 2006-07). File be consigned to
record room. The copy of the order be sent to both the parties.
(RL Koli)
Presiding Officer, EPFAT

10

THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL

NEW DELHI
ATA NO. 53(9)/2008
BETWEEN
M/s. George Construction Company.

................ Appellant

And
APFC, Nagpur

.................Respondent
ORDER
Date :- 2 September, 2008
nd

Present : Shri S. N. Khandelwal, Counsel for the appellant

The appeal has been filed an under Section 7 I of the Employees
Provident Fund and Miscellaneous Provisions Act, 1952 (for short the Act)
against the order dated 11.01.2008 of the APFC, Nagpur passed in the
proceedings conducted under Section 7-A of the Act whereby the appellant
establishment was assessed for the PF liability in respect of casual worker
engaged at the construction for the period from 2005-06 and 2006-07. The said
appeal was allowed by the Tribunal vide Order dated 24.01.2008 and the relief
was granted, inter, alia, for waiver of employees share of contribution for the
period 2005-06 and 2006-07. The appellant has now filed an application under
Rule 21 of the EPF Appellate Tribunal Rules, 1997 for clarification that the
precise amount towards employers share of contribution for the period 2005-06
and 2006-07 was not specifically mentioned in the order and the respondent had
issued recovery letter for 2006-07. The appellant has, therefore, prayed that the
respondents letter of recovery be quashed and the amount of employers share
of contribution for the period 2005-06 and 2006-07 be specifically highlighted
by suitably issuing clarification in respect pf para 10 of the Order of this
Tribunal dated 24.01.2008.
2.
Heard the counsels for the appellant. This Tribunal in its Order dated
24.01.2008 has waived the employees share of contribution for the period 200506 and 2006-07. Although in the grounds taken in the appeal a specific relief
11

was sought for waiver of Rs. 1,68,448/- towards identified employees share of
contribution for the period 2005-06 and 2006-07. The amount however could
not be mentioned in the Order dated 24.01.2008 but a specific relief was granted
to the appellant for waiver of employees share of contribution for the period
2005-06 and 2006-07. Accordingly, it is clarified that the appellant is entitled
and allowed for the relief of waiver of Rs. 1,68,448/- towards identified
employees share of contribution for the period 2005-06 and 2006-07. The
application filed under Rule 21 of the EPF Appellate Tribunal Rules, 1997 for
clarification is allowed and the demand raised for recovery of Rs. 6,56,510/towards employees share of contribution for the period 2005-06 and 2006-07 is
found to be not in consonance with the law.
(RL Koli)
Presiding Officer, EPFAT

12

THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL

NEW DELHI
ATA NO. 53(9/2008)
BETWEEN
M/s. George Construction Company.

.................. Appellant

And
APFC, Nagpur

................ Respondent
ORDER
Date :- 10th, August, 2009

Present : Shri S. N. Khandelwal, Counsel for the appellant

Shri R. R. Rajech, Counsel for the respondent.
The respondent department has filed the present application for
rectification / clarification Under Section 7(L) (2) of Employees Provident Fund
& Miscellaneous Provisions Act of 1952 (For Short The Act), seeking
modification of order dated 02.09.2008 p[assed by this Tribunal and to maintain
the original order dated 24.01.2008, and alternatively, the respondent by the
present application had prayed for permitting them to initiate proceeding under
Section 7(A) of the Act for the entire period and also permit it to recover the
dues. The respondent has stated that the appellant had not deposited employers
share of contribution as directed by the order of this Tribunal dated 24.01.2008
and moved an application under Rule 21 of Employees Provident Fund
Appellate Tribunal Rules, 1997 for clarification on demand raised by the
respondent for recovery of Rs. 6,56,510/- The respondent further have alleged
in the application that, the appellant has suppressed the material fact from this
Tribunal and thus based on this fact, the appellant had prayed for modification
of order dated 02.09.2008 passed by this Tribunal. The appellant opposed the
application by filing a reply and questioned the tenability of the application on a
ground that, there is no apparent error / mistake on the face of record in the
13

order of this Tribunal dated 02.09.2008 and as such, in absence of any

rectification and mistake apperent on the face of record in order dated
02.09.2008, the application is not maintainable. The appellant further stated that
this Tribunal has already passed an order dated 24.01.2008, wherein the order
dated 11.01.2008 was quashed and set aside and as in the said order, the
employers share of contribution was not mentioned which was supposed to be
deposited by the appellant in view of the order of this Tribunal dated 24.01.2008
for a period of 2005-06 & 2006-07. thus, the appellant had moved an
application under rule 21 of E.P.F. Appellate Tribunal Rules, 1997 for
appropriate direction, wherein the appellant prayed to quash and set aside the
demand notice issued by the respondent department dated 06.06.2008 and
20.06.2008. Further, the appellant had prayed that, the employers share of
contribution for a period 2005-06 & 2006-07 to the tune of Rs. 1,91,048/deposited by it is just, legal and proper and in view of the order of this Tribunal
dated 24.01.2008.
2.
I have heard the respective counsels perused the application and reply
filed by the appellant and after perusal of application and reply, I find that, this
Tribunal had already passed the reasoned order dated 24.01.2008 in an appeal
Under section 7(1) of the Act of 1952. So also, this Tribunal had given its
reasoning for allowing the application of appellant filed under Rule 21 of EPF
Appellant Tribunal Rules, 1997 vide order dated 02.09.2008. After perusal of
the application, reply and both the orders as referred above passed by this
Tribunal, I does not find any mistake apparent from the perusal of order dated
24.01.2008 as well as the order dated 02.09.2009. Thus, as the order dated
02.09.2008 is reasoned order the there is no mistake or apparent error in it, the
present application filed by the respondent is itself not tenable, as the powers
which is to be exercised by this Tribunal are very limited Under Section 7(L)
(2) of the Act of 1952, It is needless to mention here that, unless and until; there
is any apparent error / mistake on a face of record / in order, the power cannot
be exercised counsel for appellant who has submitted that, as there is no
apparent error on a face of record in the order passed by this Tribunal dated
02.09.2008, the present application is not liable to be entertained. Thus, for the
aforesaid reason, the application filed by the respondent Under Section 7(L) (2)
of the Act of 1952 is hereby rejected.
(RL Koli)
Presiding Officer, EPFAT
14

IN THE HIGH COURT OF GUJARAT AT AHMADABAD

DISTRICT : AHMADABAD
SPECIAL CIVIL APPLICATION 11611 OF 2009
Hind Mazdoor Kisan Panchayat,
Notice to be served through
P. Chidambaram,

Petitioner....

V/s
Regional Provident Fund Commissioner & other

Respondent....

INDEX
1. MEMO OF THE PETITION

15

1 TO 5

IN THE HIGH COURT OF GUJARAT AT AHMADABAD

DISTRICT : AHMEDABAD
SPECIAL CIVIL APPLICATION 11611 OF 2009
Hind Mazdoor Kisan Panchayat,
Notice to be served through
P. Chidambaram,

Petitioner....

V/s
Regional Provident Fund Commissioner & other

Respondent..

DATES
4 March 1952
th

2nd September 1952

2nd September 1952

25th July 1992

LIST OF EVENTS
EVENTS
The Employees Provident Funds and
Miscellaneous Provisions Act came into the statute
book
The Employees Provident Funds Scheme under
the Employees Provident Funds and
Miscellaneous provisions Act got framed
Para 73 of Employees Provident Funds Scheme
came in to effect
Para 40-A of the Employees Provident Funds
Scheme came into effect
The respondents having not got implemented Para
40-A and Para 73 of the Employees Provident
Funds Scheme this petition is filed.

16

BEFORE THE HONBLE HIGH COURT OF GUJARAT

DISTRICT : Ahmadabad
Special Civil Application No.11611/2009
In the matter of Article 226 of the
Constitution of India
And
In the matter of the Employees
Provident Funds and Miscellaneous
Provisions Act and Schemes there under
And
In Public Interest Litigation
Hind Mazdoor Kisan Panchayat,
Notice to be served through
P. Chidambaram,
Dr. Lohia Sadan,
Dr. Ram Manohar Lohia Marg,
Odhav, Ahmedabad......

Petitioner......

V/s
1.

Regional Provident Fund Commissioner,

Employees Provident Fund Organisation,
Bhvisyanidhi Bhavan Nr. Reserve Bank of India,
Ashram Road, Ahmedabad.

2.

Regional Provident Fund Commissioner,

Employees Provident Fund Organisation,
Bhvisyanidhi Bhavan B/H VMC ward-6 Office,
Akota, Stadium Road, Vadodara.

17

3.

Regional Provident Fund Commissioner,

Employees Provident Fund Organisation,
Bhvisyanidhi Bhavan Ghod-Dod Road,
Ram Chawk, Surat 395 001.

4.

Regional Provident Fund Commissioner,

Employees Provident Fund Organisation,
Bhvisyanidhi Bhavan Panchayatnagar Chowk,
University Road, Rajkot 360 005.

5.

Central Provident Fund Commissioner,

Employees provident Fund Organisation,
Bhvisynidhi Bhavan Bhikaji Cama Place,
as per Court order of 5/4

6.

Union of India through secretary ministry of labour

Shram Shakti Bhavan Rafi Marg, New Delhi.

..... Respondents

TO
THE HONBLE CHIEF JUSTICE
& OTHER HONBLE JUDGE OF THE
HONBLE HIGH COURT OF GUJARAT
AT AHMADABAD
THE HUMBLE PETITION OF THE
PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH THAT
1.
This petition is to awaken the respondents appointed under The
Employees Provident Funds and Miscellaneous Provisions Act, 1952 (EPF and
M.P. Act for short) to get implemented the E.P.F. and M.P. Act and the various
schemes there under from deep slumber in the matter of issue of the Pass Books
and Annual Account Slips to the workers who are the members of the
Employees Provident Funds Scheme (E.P.F. Scheme for Short)
2.
Para 40-A of the E.P.F. Scheme reads as under.
18

40-A. Supply of pass books to the members :- With effect from such date as
the Commissioner may specify in this behalf every employer shall, on an
employee becoming a member of the fund, provide a Pass Book to every such
member and maintain the same in such form and manner as the Commissioner
may direct from time to time.
Provided that different dates may be specified for different industries or
classes of establishments or for different areas.
3.
There are innumerable establishments in the State Of Gujarat covered
under the E.P.F. and M. P. Act and Lakhs of workers are the members of the
E.P.F. Scheme, Employees pension and Employees Deposit Linked Insurance
Scheme framed under the E.P.F. and M.P. Act.
4.
The respondents are the Regional Provident Fund commissioners situated
at different centres in the State of Gujarat to get implemented and monitor the
E.P.F. and M.P. Act and the Schemes there under in their respective areas.
5.
The petitioner submits that the respondent have nerver cared to get
implemented para 40-A of the E.P.F. Scheme in the establishments situated in
thir respective areas. The Petitioner submits that no employer in the state of
Gujarat is supplying Pass Books to the workers who are the members of the
E.P.S. Scheme.
6.
The Petitioner submits that Para 40-A came in to the E.P.F. Scheme with
effect from 25.07.1992. It is seventeen long years and the respondents are
sleeping on it. The respondents are not getting the para 40-A implemented. The
Petitioner submits that every Para of the E.P.F. Scheme is to make the member
know the Provident Funds account on month to month basis, the dates on which
the remittances are made by the employers. the amount of interest earned etc.
The Petitioner submits that the workers can get corrected any mistake or error in
their account immediately if they have the Passed Books with them.
7.
The Petitioner submits that Para 73 of the E.P.F. Scheme reads as under.
73 Annual Statement of member account (1) As soon as possible after the
close of each period of currency of contribution card the Commissioner shall
send to each member through the employer of the [factory or other
establishment] in which he was last employed a statement if his account in the
Fund showing the opening balance at the beginning of the period, amount
contributed during the year, the total amount of interest credited at the end of
the period or debited in the period and the closing balance at the end of the
period.
19

(2) Members should satisfy themselves as to the correctness of the annual

statement and any error should be brought to the notice of the commissioner
within six months of the receipt of the statement.
8.
The petitioner submits that as per Para 3 the respondents are required to
supply the annual statement of accounts every year to each member, the said
statement are to be sent to the employers and the employers. These annual
statements are also not being supplied to the majority members. The contract
labour is worst affected lot. In cases where the employers do not pay the
contributions regularly the respondents to not supply the annual statement of
accounts.
9.
The petitioner submits that supply of Pass Books and supply of annual
statement of account to the members of the fund are mandatory requirements as
per the E.P.F. Scheme. The respondents are duty bound to implement the same.
10. The petitioner submits that the Pass Books as per Para 40-A of the E.P.F.
Scheme is not being supplied to any member of the scheme in the whole of
Gujarat State. The annual statement of accounts are also not supplied to all the
members of the scheme regularly. The respondents being the authorities
empowered by the E.P.F. Act and Schemes there under are responsible for the
present situation.
11. The petitioner has not filed any other petition either in this Honble court
or in any other Court including the Honble Supreme Court of India on the
subject matter of the present petition.
12. The Petitioner states that it has no the equally officious remedy but to
approach this Honble Court by way of this petition.
PRAYER
13. In the aforesaid premise, the petitioner most respectfully prays that:
(A) Your Lordships to issue a writ of mandamus and or any appropriate
writ or direction to the respondents to get implemented the Paras 40-A and 73 of
the E.P.F. Act immediately in their respective areas of operation.
(B) Any other and further reliefs that this Honble Court may deem fit and
proper be granted.
And for this act of kindness, the petitioner herein as in duty count shall for
every pray.
Ahmadabad
Sd/Date : 9-11-2009
Petitioner
20

AFFIDAVIT
I, P. Chidamabaram, Adult Secretary Gujarat State Hind Mazdoor Kisan
Panchayat do hereby on solemn affirmation stte that what is stated in paragraphs
1 to 12 is true to the best of my knowledge, information and belief and I believe
the same to be true. Paragraph 13 is prayer clause.
Solemnly affirmed at Ahmadabad on this 9th day of November, 2009.
Sd/Deponent
I identify the deponent.
Clerk to

21

IN THE HIGH COURT OF GUJARAT AT AHMADABAD

DISTRICT : AHMADABAD
SPECIAL CIVIL APPLICATION 11611 OF 2009
Hind Mazdoor Kisan Panchayat,
Through P. Chindambaram

...... Petitioner
Versus

Regional Provident Fund Commissioner & other

...... Respondent

Affidavit in-reply on behalf of the Respondent No. 1 to 4

I, ..................................................................... working as ........................... in
the officer of the respondent / authority do herein solemnly affirm and file
present affidavit as under:
I have gone through the memo of the petition as well as files and documents
relating to present case and therefore I am conversant with each of the facts,
hence, competent to file this affidavit.
1)
At the outset I sate that present affidavit in reply is filed for the Limited
purpose with a view to appraise correct facts and situation prevailing because as
such policy decision taking authority is not the present respondent but the Govt.
of India, Ministry of Labour, New Delhi. It is further submitted that the present
respondents are only executing directions and policies framed by the Govt. of
India. I further reserve my right to file detail parawise affidavit in reply in future
as and when necessary.
2)
At the outset I deny each and every averment levelled against me in the
memo of the petition and facts which are not specially admitted by me
hereinafter are to be traded as denied.
3)
At the outset I say and submit that no prejudice much less serious in
nature is being caused to the petitioner in view of the alleged non
implementation of the paragraph no. 40-A and 73 of the Employees Provident
Fund Scheme, 1952. Under the circumstances I humbly request this Honble
High Court to dismiss the petition with cost.
22

4)
At the outset I say and submit that the intension behind the paragraph No
40-A i.e. Supply of Pass Book to the members is to update the members of the
scheme with regard to contribution monthly as well as yearly, interest accrued
thereon etc. It is relevant to note that Paragraph No. 35 i.e. preparation of
contribution cards of every employee by the employer is already existing and
implemented by the respondent / authority, more so other provisions are made
in the scheme so as to enable the employee to know their actual. The relevant
provisions of the scheme are reproduced herein blow for the sake of
convenience:Para 35 : Preparation of Contribution Cards: The employer shall
prepare a contribution card [in Form 3] {or Form3A} as may be appropriate,
in respect every employee in his employment at the commencement of the
Scheme or who is taken into employment after that date and who is required or
entitled to become or is a member of the Fund including those who produce an
Account Number and in respect of whom no fresh Declaration Form prepared.
[Provided that in the case of any such employee who has become a
member of the Family Pension Fund under the Employees Pension Scheme,
1971, the aforesaid Forms shall also contain such particulars ad are necessary
to comply with the requirements of that Scheme].
In addition to the aforesaid provision Paragraph 35(5) is also being
implemented and enforced strictly by the authority which reads as under:
Para 36 sub Para 5 : Every employer shall maintain such accounts in
relation to the amounts contributed to the Fund by him and by his employees as
the [Central Board] may, from time to time, direct and it shall be the duty of
every employer to assist the [Central board] in making such payments from the
Fund to his employees as are sanctioned by or under the authority of the
[Central board]
It is pertinent to note here that in addition to the aforesaid provision even
provisions with regard to entry of contribution by the employer and inspection
thereof by the employees are also made available which are as under :
Para 40: Contributions to entered in the contribution cards : The
amount recovered every month from the wages of an employee as well as the
contribution made by the employer in respect of each such employee shall be
entered by the employer every month in the contribution card opened in the
name of each member under the Scheme.

23

Para 41: Currency of Contribution Cards : The contribution cards

issued under the scheme shall be current for one year :
Provided that the said period of one year may commence and terminate
at such different times in different [factories or any other establishments] as
may be decided by the Commissioner from time to time]
Provided further that the cards issued :
i)
in respect of the first contribution period or
ii)
in respect of the contribution period immediately preceding the
date from which the establishment id notified as an annually posted
establishment.
May be for a period which may be less or more than a year.
Para 42 : Renewal of contribution card : An employer shall, on or
before the expiration of the period of currency of the contribution card, prepare
in respect of each member employed by him a card [in Form-3] or Form 3A] as
may be appropriate, for the next period of currency.
[Provided that in the case of any such employee ho has become a member
of the Family Pension Fund under the Employees Family pension Scheme,
1971, the aforesaid Form shall also contain such particulars as are necessary
to comply with the requirements off that Scheme]
Para 43: Submission of Contribution cards to the Commissioner: Every
employer shall, within one month from the date of expiration of the period of
currency of the contribution cards in respect of members employed by him, send
the contribution cards in respect of members employees by him, send the
contribution cards to be Commissioner together with a statement in Form No. 6.
Provided that where a member leaves service, the employer shall send the
contribution card in respect of such members before the twentieth day of the
month following that in which the member left the service.
Provided further that in the case of any such employees who has become a
member of the Family Pension Fund under the Employees Family Pension
Scheme, 1971 the aforesaid From shall also contain such particulars as are
necessary to comply with the requirements of that Scheme.
Para 44: Custody of contribution Cards : The employer shall retain in
his custody the contribution crds in respect of each member employed by him
and shall take every precaution against loss or damage of the contribution
cards.

24

Para 45 : Inspection of Cards by members : Any member making a

request in his behalf to the employer shall be permitted to inspect his cards
himself or to have the same inspected by any person duly authorized by him in
writing to do so, within 72 hours of making such request provided that no such
request shall be entertained more than once in a every two calendar months.
5)
It is pertinent to mote here that the annual account slip under Paragraph
73 is issued after the Central Board of Trustees, Employees Provident Fund
Organization / Government of India declares the rate of interest for the
concerned financial year and the statutory, returns prescribed under the EPF &
MP Act, 1952 and Schemes framed there under are submitted in complete shape
and format to the concerned office. It is submitted that annual slips as envisage
in paragraph 73 is being issued to all the members / subscribers. It would be
pertinent to note here that in the annual account slip progressive balance of the
concern member is being shown which includes opening balance, interest,
contribution, withdrawals and the closing balance. Under the circumstances it
will be just and proper for this Honble High Court to dismiss the petition
holding that no serious prejudice is being caused to the members / subscribers
for allege non implementation of aforesaid provisions.
6)
Under the circumstances and in view of the submission made
hereinabove, it is most respectfully submitted that no prejudice whatsoever is
being caused to the members on account of non issuance of the pass book as
envisage in Para 40-A of the Scheme. The ultimate purpose of the p[ass book is
to enable the members to know their accumulation, contribution, withdrawals,
interest etc. which as such by implementing various provisions of the scheme
are being made aware to the members. It is, therefore, humbly requested this
Honble High Court to dismiss the petition with exemplary cost.
Date : 16.08.2010
Place : Ahmedabad

Deponent

25

IN THE HIGH COURT OF GUJARAT AT AHMADABAD

SPECIAL CIVIL APPLICATIONS NO. 11611 OF 2009
========================================================
HIND MAZDOOR KISAN PANCHAYAT, THROUGH P
CHIDAMBARAM Petitioner (s)
Versus
REGIONAL PROVIDENT FUND COMMISSIONER & 5Respondent (s)
========================================================
Appearance
MR. YOGEN N. PANDYA for Petitioner(s) :1,
NOTICE SERVED BY DS for Respondent(s) :1-4,
MR. NIRAL R. MEHTA for Respondent (s) : 1-2,
SERVED BY RPAD (N) for Respondent (s) : 5,
MR. PS CHAMPANERI for Respondent (s) : 6]
========================================================
HONOURABLE THE CHIEF JUSTICE MR. S. J.
CORAM : MUKHOPADHAYA
and
HONOURABLE MR. JUSTICE J. B. PARADIWALA
DATE : 07.09.2011
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. S. J.
MUKHOPADHA
On 5th April 2011, learned counsel appearing on behalf of the Reg.
Provident Fund Commissioner contended that Pass-book as per Para 40A and
73 of the Employees Provident Fund Scheme, 1962, could not be issued in
absence of any supply from the Union of India or direction from Union of India,
Ministry of Labour.
Today, when the matter is taken up, learned counsel appearing on behalf
of the Regional Provident Fund Commissioner submitted that the matter is to be

26

discussed with Central Provident Fund Commissioner and Ministry of Labour,

New Delhi and only thereafter action can be taken.
In the facts and circumstances, we direct the respondents including
Regional Provident Fund Commissioner, Ahmadabad, Central Provident Fund
Commissioner, New Delhi and Secretary, Ministry of Labour and Social
Welfare to sort out the problem and ensure compliance of provision of
paragraph 40A and 73 of the Employees Provident Fund Scheme, 1962 by 15th
October 2011. Pass Book to the members should be supplied by 30th November
2011.
A copy of this order be handed over to learned counsel for Regional
Provident Fund Commissioner, Ahmadabad and to Mr. P. S. Champaneri,
learned Assistant Solicitor general for communication thereof to the concerned
officers of Central Provident Fund Commissioner, New Delhi as well as Union
of India.
Progress report be submitted to the Court on the next date of hearing.
Post the matter on 20th October 2011.
(S.J. Mukhopadhaya, C. J.)

(J.B.Pardiwala,J)
Mathew

27

IN THE HIGH COURT OF GUJARAT AT AHMADABAD

CIVIL APPLICATION NO. 11433 OF 2011
IN
SPECIAL CIVIL APPLICATION NO. 11611 OF 2009
========================================================
REGIONAL PROVIDENT FUND COMMISSIONER & 4- Petitioner (s)
Versus
HIND MAZDOOR KISAN PANCHAYAT, THROUGH P CHIDAMBA
========================================================
Appearance :
MR. NIRAL R. MEHTA for Petitioner
MR. YOGEN N. PANDYA for Respondent :1
MR. PS CHAMPANERI for Respondent : 2
========================================================
HONOURABLE THE ACTING CHIEF JUSTICE
CORAM : Mr. A. L. Dave
and
HONOURABLE MR. JUSTICE J. B. PARADIWALA
Date : 20.10.2011
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE
MR. A. L. DAVE
Rule: Learned advocate Mr. Yogen Pandya and learned Assistant Solicitor
General of India Mr. Champaneri waive service of notice of rule for respondent
No. 1 and respondent No. 2 respectively.
2.
Heard the learned advocates for the parties.
3.
Considering the volume of work and detailed exercise to be undertaken,
we were inclined to extended time by three months. However, on repeated
insistence of both, learned advocate Mr. Mehta for the applicants and learned
Assistance Solicitor General of India Mr. Champaneri, we extend the time by
four months with effect from 30.11.2011, with a rider that no such application
for extension of time will be filed by the applicant. Rule is made absolute
accordingly. Direct service is permitted.
(S,J. Mukhopadhaya, C. J.)
(J.B.Pardiwala,J)
28

29