S.K.Homchaudhuri, J. - (1.) The question involved in this petition is as to whether the petitioner is entitled to waiver in respect deposit of the employees' contribution for the period from October, 1985 to 3-5-1983, during which period the petitioner could not and did not make deduction from the wage, of the home-workers employed through contractors for manufacture of beedi because of pendency of litigation on the question of applicability of the provision of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter mentioned as 'the Act') in respect of the home- workers employed by the contractors.
(2.) The petitioner is a limited company having its headquarter at Calcutta, which carries on business of manufacture and trade of Beedi. After receipt of the notice under the provision of the Act from the respondent No. 2, the Regional Provident Fund Commissioner, the petitioner challenged the notice in this Court in C.W.J.C. No. 4089 of 1988, contending, inter alia, that the provision of the Act has no application in respect of the home- workers, who were engaged for rolling Beedis by the independent contractors. Interim stay was granted by this court pending disposal of the writ petition. This court, however, by judgment and order passed on 27-7-1989 dismissed the said writ petition, holding that the provision of the Act was applicable in respect of the home workers engaged in for rolling the Beedi of the petitioner through the contractors. The petitioner challenged the aforesaid judgment of this court in the Hon'ble Supreme Court in S.L.P. No. 10538 of 1989. After dismissal of the writ petition, the Regional Provident Fund Commissioner calculated and determined the petitioner's liability on account of employees provident fund and by memo dated 15-1-1990 a'sked the petitioner to deposit a sum of Rs. 66,84,930.50 being the employer's and employees' contribution to the Employees, Provident fund for the period from July 1977 to August, 1986. By another order dated 18-12-1989, respondent No. 2 directed the petitioner to pay a sum of Rs. 28,72,383.85 within fifteen days on account of employer's and employees' contribution to the provident fund for the period from September, 1986 to February, 1988.
(3.) The petitioner challenged the aforesaid demands in this court in C.W.J.C. No. 114 of 1990 and C.W.J.C. No. 1115 of 1990, respectively, contending that the home workers rolling the Beedi out of raw material supplied by the petitioner were employed by the independent contractors and the petitioner-company was not the employer of those home workers within the meaning of Section 2(e) of the Act. In the meantime, the Supreme Court by order dated 22-8-1989 disposed of S.L.P. No. 10538 of 1989, preferred against the judgment of this court dated 27-7-1989 passed in C.W.J.C. No. 4089 of 1988, with the observation that the question involved therein could be heard and decided in the pending C.W.J.C. No. 1114 of 1990 and C.W.J.C. No. 1115 of 1990. A Division Bench of this court by judgment dated 19-8-1992 dismissed C.W.J.C No. 1114 of 1990 and C.W.J.C. No. 1115 of 1990. Thereafter, a sum of Rs. 46,90,051/- out of the total demand of Rs. 95,57,314.35, was realised by the respondent No. 2, the Provident Fund Commissioner by coercive process. The petitioner filed S.L.P. No. 15312-13/92 in the Hon'ble Supreme Court challenging the judgement of this court dated 19-8-1992 passed in C.W.J.C. No. 1114 of 1990 and C.W.J.C. No. 1115 of 1990. Some other establishment/company also moved the Supreme Court on identical questions. The Supreme Court dismissed the S.L.P. by the order dated 3-5-1993 on the following terms: "The S.L.Ps. are dismissed. It is open for the petitioner to collect the names of the Bidi workers who work for them through their contractors and furnish the name of all the workers to the P.F. Commissioner. The P.F. Commissioner thereafter will verify those names and calculate the liability excess amount is found due from the petitioner, the P.F. Commissioner, will recover such amount from the petitioner on the other hand if any amount is found due to the petitioner, the P.F. Commissioner will refund the same. The petitioner to furnish the names of the workers as above within six months, from today." In terms of the order dated 3-5-1993, the petitioner intimated the Regional Provident Fund Commissioner about the particulars of the home workers engaged by the contractors to the best of information, as they were not directly employed by the petitioner, for final determination of the petitioner's liability under Section 7-A of the Act as observed by the Supreme Court in the aforesaid order dated 3-5-1993. The petitioner also filed two petitions dated 19-8-1983 and 30-5-1994, along with a copy of the judgment of the Calcutta High Court dated 8-3-1994 passed in a similar matter and demanded waiver of the employees' contribution for the prediscovery period from October, 1985 to 3rd May, 1993. The Assistant Provident Fund Commissioner, however, by the impugned order dated 2-6-1994, disallowed the claim of waiver from payment of employees' contribution for the period from October, 1985 to 3-5-1993 on the ground that there was no instruction for allowing waiver from any competent authority and determined the outstanding liability including the employees' contribution for the period from October 1985 to 3-5-1993. The petitioner, after receipt of the impugned order dated 2-6-1993. The petitioner, after receipt of the impugned order dated 2-6- 1994, made a representation on 20-6-1994 demanding exemption from payment of employees' share of the provident fund by them to the extent the contributions were not deducted from the wages of the concerned employees during the said period in the light of the judgment of the Calcutta High Court. The Regional Provident Fund Commissioner did not allow waiver for the said period and by the impugned order dated 27-9-1994 issued certificate for recovery of the outstanding liability of Rs. 46,17,538.20 Ps. to the Recovery Officer, Bihar, Patna. Feeling aggrieved, the petitioner has approached this court in this writ-petition.;