- (1.) In the instant writ application the Indian Oil Corporation ("for short I.O.L.") has challenged the order dated 4.5.98/29.6.98 passed under Section 7A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (for Short "the Act") determining the dues payable by the petitioner in respect of the employees engaged through M/s. S. N. Building Works (for short "the contractor") for the period 5/94 to 12/96.
(2.) Mr. Arijit Chaudhuri, Senior Advocate, appearing for the petitioner assailing the order under challenge submitted that under the Act no duty has been cast upon the I.O.L. to maintain the records of the contractors and for that reason the company was not able to file the statement of the dues payable for the period of enquiry. Submission was made that as the contractor did not appear in spite of the notice issued under Section 32 of the Code of Civil Procedure, 1908 (for short "the Code") it was the duty of the respondent concerned to enforce the summons and ensure the attendance of the said contractor. Not having done so the respondent should not have saddled the petitioner with the liabilities of the contractor. Had the respondent enforced the appearance of the contractor, records could have been produced and the exact quantum of dues payable by the contractor could have been ascertained Moreover, it was submitted, there was a failure of natural justice as the I.O.L. was not given opportunity to cross-examine the Enforcement Officer representing the department. Mr. Chaudhuri submitted that the respondent made the calculation for the entire period taking the daily wages @ Rs. 140 per day and have arrived at a figure of Rs. 4,35,003/- which is not tenable. According to him even if calculation is made on the basis @ of Rs. 140 per day for the entire period it cannot be more than Rs. 3,13,482/-. Attention was drawn to the calculation made by the petitioner at paragraph 8 of the writ petition, which according to Mr. Chaudhuri, is just, proper and correct as in paragraph 5 in the affidavit in opposition the respondent has not been able to deal with the said calculation.
(3.) Having heard Mr. Chaudhuri for the petitioner, I am of the view that the writ petition should succeed. Though notice was issued under Section 32 of the Code, the respondent did not ensure the presence of the defaulting contractor by compelling his attendance by taking recourse to the provisions of said section. In the order under challenge it has been recorded But the contractors have not availed of the opportunity in spite of service of notice under Section 32 of Civil Procedure Code........" Thereafter, it has been held that "I find force in the contention of the department because the contractors have elected not to represent their case inspite of giving them opportunity and the establishment has not maintained preserved any records in relation to the employees engaged through the said contractors." Accepting the contention of the department it was held as follows" I, therefore, uphold the contention of the department to calculate the provident fund dues taking Rs. 140/- per day as the wages paid to the workers for the entire period from 5/94 to 12/96".;