K.S.JHAVERI J. - (1.) By way of this appeal, the appellant has assailed the judgment and order of the learned Single Judge whereby the learned Single Judge has dismissed the petition.
(2.) Counsel for the appellant submitted as under:- "On 18th January, 2005 the Inspector visited the Petitioner/appellant establishment and prepared a list of 26 employees for the purpose of the applicability of the Act and on his recommendation the petitioner/appellant establishment was held to be covered under the Act by a letter dated 2nd February, 2005. On 21st December, 2005 the respondent issued 7-A notice for determination of the PF dues for the period from January 2005 to November, 2005, which was not received by the petitioner/appellant. On 10th July, 2006 respondent passed ex parte assessment of the dues without obtaining a report of actual payable dues from the Inspector. It is alleged that after 18th January, 2005 the Inspector has not visited to ascertain the details of the wages, how many persons have left and/or joined service for the period of 7A inquiry. On 23rd August, 2006 the petitioner/appellant filed review application under 7A(4) and 7B(1) of the Act assailing the Ex-parte order dated 10th July, 2006 but the respondent rejected application on 14th September, 2006 without hearing the appellant/petitioner, which is against the principle of natural justice and the mechanism laid down by the Hon'ble Supreme Court in case of Food Corporation of India v. Provident Fund Commissioner , which was required to be followed while making assessment under Section 7A of the Act and in case assessment is contrary to the same would required to be interfered with. The respondent admitted in order dated 14th September, 2006 that the letters/notice issued to the petitioner/appellant were returned undelivered. Then, the petitioner/appellant challenged the ex-parte assessment order dated 10th July, 2006 before the Appellate Tribunal New Delhi and submitted the written arguments on 18th February, 2010. It is stated that the respondent did file the reply to the Statutory Appeal nor submitted written arguments before the Tribunal. The Tribunal did pass its order in the open court. On 10th March, 2010 the petitioner/appellant received order dated 18th February, 2010 of the Appellate Tribunal through Post whereby the Tribunal dismissed the appeal without discussing the issues raised and involved in this case for adjudication. Then the petitioner/appellant preferred an application under Section 7L(2) before the Tribunal to review its decision but by an order dated 3rd September, 2013 the Tribunal dismissed the review application on the ground that proper forum is to approach the Hon'ble High Court and the appellant filed writ petition which was dismissed vide order dated 7.3.2017.
(3.) Counsel for the appellant has relied upon the decision in case of Food Corporation of India v. Provident Fund Commissioner reported in [1990] 1 SCC 68 wherein it has been held as under:- "7. The question, in our opinion, is whether one has failed to produce evidence. The question is whether the Commissioner who is the statutory authority has exercised powers vested in him to collect the relevant evidence before determining the amount payable under the said Act. 8. It is of importance to remember that the Commissioner while conducting an inquiry under Section 7A has the same powers as are vested in a Court under the CPC for trying a suit. The section reads as follows: Section 7(A) Determination of Moneys due from Employer(1) The Central Provident Fund Commissioner, any Deputy Provident Commissioner or any Regional Provident Fund Commissioner may, by order determine the amount due from any employer under any provision of this Act (the scheme or the Family Pension Scheme or the Insurance Scheme) as the case may be and for this purpose may conduct such inquiry as he may deem necessary. (2) The Officer conducting the inquiry under Subsection (1) shall, for the purposes of such inquiry, have the same powers as are vested in a Court under the CPC, 1908, for trying a suit in respect of the following matters, namely: (a) enforcing the attendance of any person or examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses. and any such inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196 of the Indian Penal Code. 9. It will be seen from the above provisions that the Commissioner is authorised to enforce attendance in person and also to examine any person on oath. He has the power requiring the discovery and production of documents. This power was given to the Commissioner to decide abstract questions of law, but only to determine actual concrete differences in payment of contribution and other dues by identifying the workmen. The Commissioner should exercise all his powers to collect all evidence and collate all material before coming to proper conclusion. That is the legal duty of the Commissioner. It would be failure to exercise the jurisdiction particularly when a party to the proceedings requests for summoning evidence from a particular person." 3.1. He has further relied upon the decision of Patna High Court in case of Raj Kumar Gupta v. The Assistant Provident Fund Commissioner reported in 2013 Supreme (Patna) 659 , wherein it has been held as under:- "3. Years ago, in the case of Food Corporation of India v. Provident Fund Commissioner, reported in: (1990) 1 SCC 68 , the Hon'ble Supreme Court laid down the mechanism, which was required to be followed while making assessment or determination under Section 7A of the Act. The Court's observation especially in paragraphs 6, 7, 8 and 9, lays down the core issue, which is required in determination of the liability of an establishment. If there is failure to adhere to any aspect of what the Hon'ble Apex Court has laid down, which are any way in terms of the provisions of the Act and the Rules. Obviously any assessment or determination contrary to the same would be required to be interfered with. 8. Since the Act is enacted with the object of providing benefits to the workers of unorganized sector, this Court fails to understand as to how such a corpus has been collected by the Provident Fund authorities and in whose name If there are nonexistent workmen or beneficiaries in whose name such collections have been made by the Provident Fund authorities, it is per se illegal and in clear breach of the legislative intent and object. 9. These are matters which seriously require a relook and remedial steps are required to be taken at the highest level so that the collections are only with the object of achieving targets by various Provident Fund authorities but to collect actual contributions of the employers as well as the employees so that the funds so collected by the authorities can be made over to an identifiable workmen, on whose name the deductions have been made." 3.2. He has relied upon another decision of Patna High Court in case of Assistant Provident Fund Commissioner v. M/s Nand Lal and Company through its Partner reported in 2016 0 Supreme (Pat) 642 wherein it has been held as under:- "We are of the view that the assessment under Section 7A of the Act should be confused with an assessment of tax. The assessing authority has made an assessment as if he is a taxing authority, and realizing tax from a taxpayer. Unfortunately, these are provident fund dues which are to accrue to an individual and a tax, and, an amount payable to the Provident Fund Commissioner. Unless the nature of employment and the names of employees are identified with certainty, the assessment cannot be said to be in accordance with law. The Apex Court has clearly held so. We have, therefore, no reason to interfere in the order of the appellate authority or the learned Single Judge. This appeal is, accordingly, dismissed." 3.3. He has further relied upon the decision of Bombay High Court in case of Small Gauges Ltd. and Ors. v. V.P. Ramalah, Regional Provident Fund Commissioner reported in 2009 (1) Bom CR 100 wherein it has been held as under:- "6. In my view, the order Under Section 7A of the EPF Act cannot be sustained inasmuch as it has been passed without furnishing the reports and other documents relied on by the Enforcement Officer in support of the claim made against the petitioners. Unless the report, the depositions and the documents are furnished to the petitioners, these documents cannot be relied on by the respondent to pass orders against the petitioners. The basic tenets of the principle of audi alteram partem require that a person should be condemned without giving him a hearing. Such a hearing must be meaningful and effective and a farce. All documents relied on by the Department in support of its claim against the petitioners must be furnished to the petitioners before any conclusion is arrived at on the basis of those documents.";