MOHAMMAD RAFIQ,J. - (1.)This writ petition has been filed by the Assistant Provident Fund Commissioner against order dated 06.09.2013 passed by Employees Provident Fund Appellate Tribunal, New Delhi(for short 'the Appellate Tribunal'), which while allowing the appeal filed by Respondent No. 1 has set aside the order dated 28.01.2008 passed under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952(for short 'the Act of 1952') assessing provident fund dues in respect of the eligible employees of Respondent No. 1 on account of Leave Encashment, Good Work Reward payments as well as non-extension of PF benefits to 20 car drivers.
(2.)Facts of the case are that the petitioner issued a notice dated 28.04.2005 under Section 7A of the Act of 1952 for non-extension of P.F. benefits to drivers engaged by Managers/Officers of Respondent No.1. Respondent No.1 filed its reply on 31.07.2006 with which relevant documents, i.e. office orders dated 24.01.2002 and 25.07.2002 passed by it were also enclosed. Respondent No.1 also led evidence by filing affidavits of General Manager namely V.K. Jaitly and drivers namely Amar Singh, Ranjit, Satya Narain. The petitioner required Respondent No. 1 to submit list of drivers engaged by their Managers for their personal work. In response thereto, Respondent No.1 submitted letter dated 07.12.2007 wherein it reiterated its contentions and submitted that the Respondent No.1 does not have any list of drivers engaged by the Managers because they keep changing. However, it was prayed that such information would be collected from the Managers. However, vide letter dated 03.01.2008, Respondent No.1 submitted a list containing the names of the Mangers and the drivers/helpers engaged by them from time to time during the period October, 1999 to June, 2005 on the basis of information provided to Respondent No.1 by the Managers concerned. The petitioner, after hearing both the sides, passed order dated 28.01.2008 under Section 7A of the Act of 1952 directing Respondent No.1 to enroll all eligible Drivers as P.F. subscribers and deposit the P.F. contribution in respect of all such drivers from their respective due dates within 15 days. Being aggrieved, Respondent No.1 filed appeal before the Appellate Tribunal, which has been allowed vide impugned order dated 06.09.2013 which is under challenge in this writ petition.
(3.)Mr. Deepak Goyal, learned counsel for the petitioner submitted that Enforcement Officer visited the premises of the Respondent No.1 on various dates from 27.05.2005 to 04.08.2005. The inspection report dated 04.08.2005 was prepared by the Enforcement Officer it stated that Respondent No. 1 is paying salary/wages to near about 20 drivers/helpers of their officers/executives and the same salary/wages is being entered in the cash book of the Respondent No.1 every month since October, 1999 onwards. Till now, payment of a total sum of Rs. 32,37,742/- has been shown in the cash book, but no PF benefits was ever extended to these 20 employees. When expenditure is made by the executives/managers personally and drivers/helpers have not been engaged by the Respondent No.1, then why the salaries/wages of drivers were being shown in the cash book, has not been extended. Such salary/wages is being paid by Respondent No.1 on monthly basis against bills/vouchers to the drivers directly and not to the managers/officers to whom they have been provided. Such modus operandi has been adopted by the employer as subterfuge to avoid PF liabilities and debar social welfare benefits to these poor drivers. Reliance has been placed on Division Bench judgment of the Bombay High Court in BASF India Limited and Another v. M. Gurusamy and Another, 2004 Vol. II LLJ page 500.