- (1.) This Rule is directed against an order dated April 4, 1972 made in Case No. 171 of 1968 by the Additional Member, Board of Revenue, West Bengal, whereby he rejected an application filed under Section 53 of the Bengal Public Demands Recovery Act, 1913 and confirmed the order as was made by the Commissioner, Presidency Division on June 17, 1968 in Case No. 90 of 1967-68.
(2.) The opposite party No. 5 is the sole proprietor of Messrs. Indira Mahal which is an establishment for daily sale of vegetable food as well as a permanent establishment for boarding and lodging. It appears that an Inspector of the Provident Fund Department made a report that the establishment has in its employment 20 or more employees and as such provisions of Section 1 (3) of the Employee's Provident Fund Act, 1952 (Act 19 of 1952) were applicable to the same and accordingly a coverage letter was issued from the office of the Regional Provident Fund Commissioner requesting compliance with the provisions of the Act. The establishment failed to comply with the requisitions contained in the said letter and furthermore they also failed to produce the cash books for the years 1961-62 1962-63 and 1963-64. For such failure and laches, a notice was served on the establishment to pay Rs. l,483.20p (Rupees one thousand four hundred and eighty-three and twenty paise) on account of Provident Fund contributions inclusive of administrative charges for the period from October 1962 to January 1963. As the establishment failed to pay the said amount within the stipulated time, a certificate was forwarded to the Certificate Officer, 24 Parganas and the same was registered as Certificate Case No. 368-EPF of 1963-64. The Certificate Officer held that the report as was made by the Investigating Officer was correct and by his order dated February, 27, 1967, the opposite party, namely, the certificate debtor, was directed to pay up the demand in question on or by April 10, 1967, failing which it was directed that a distress warrant would be issued.
(3.) The certificate debtor preferred an appeal being Appeal Case No. 148 of 1966-67 (15) before the Additional District Magistrate and on January 30, 1968 an order was passed holding inter alia amongst others that the onus of proving that the establishment employed twenty or more persons lay upon the certificate holder and the same could have been discharged by the seizure of registers and vouchers upon which the Inspector made his endorsements. From such determination, the certificate holder filed a revisional application which was numbered as Revision Case No. 90 of 1967-68 and by the determination of June 17, 1968, the learned Commissioner, Presidency Division, agreeing with the findings of the learned Additional District Magistrate, dismissed the said revisional application and held that onus in the instant case was not on the certificate debtor but the same was on the certificate holder. Thereafter, a further revision petition was preferred by the certificate holder before the learned Divisional Commissioner, Presidency Division, and it appears that by the order dated August 6, 1971 the learned Additional Member, Board of Revenue held that the proceedings as was initiated was invalid and as such he rejected the petition. Thereafter, the certificate holder filed an application for review before the Board of Revenue and by an order dated April 4, 1972 made in Case No. 171 of 1968, the said application was also rejected holding that onus in the instant case to prove the number of employees employed in the establishment was not discharged by the certificate holder, We find that such determination has not been properly made and in making the same, the learned Additional Member, Board of Revenue has overlooked the provisions of Section 106 of the Evidence Act which provide that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. In the instant, case, whether the establishment at the material time had employed twenty or more persons was certainly within the special knowledge of the employer, namely, the certificate debtor and as such the certificate debtor should have been asked to discharge the said onus. The initial onus in the instant case was on the certificate debtor and the same has been wrongly shifted on the certificate holder.;