HOTEL SOUNDARYA RESIDENCY Vs. THE REGIONAL PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) HAVING heard the learned counsel for the parties, perused the pleadings and the orders impugned, it is appropriate that the matter be remitted to the Regional Provident Fund Commissioner for consideration afresh.

(2.) PETITIONERS when issued with a notice of proceedings under Section 7 -A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, for short 'Act', stating that the report of the Enforcement Officers disclose that the four petitioners' establishments were not independent establishments but there was functional integrity as between the two establishments, each, petitioners opposed the same by filing objections inter alia contending that there was no functional or financial integrity. The Regional Provident Fund Commissioner without ensuring the presence of the Vigilance Officers who filed a report on spot inspection, for cross -examination so as to test the veracity of the said report proceeded on the assumption that the report contained gospel truth and accordingly by the Order of even date 16.6.2011 Annexure -B1 and B2 held that establishments were functionally and financially interdependent, and held that the Act applied to the Establishments and accordingly determined the amounts due from the employer under the Act. Those orders, when, called in question in ATA No. 550 -552(6) and 553(6) of 2011, before the Employees' Provident Fund Appellate Tribunal, for short 'Tribunal' the Appeals stood dismissed by orders dated 1.4.2014 and 2.4.2014 Annexures -A1 and A2, respectively. Hence these petitions.

(3.) THE orders Annexures -B1 and B2 of the Commissioner disclose that M/s. Soundarya Residency and Soundarya Resturant, together, were functionally interdependent, so also Hotel Soundarya Deluxe and M/s. New Soundarya Deluxe were also functionally interdependent, on the basis of the report submitted by two Vigilance Officers who claim to have visited the establishments and recorded observations. Indeed petitioners claim to have maintained separate records required by labour legislation in respect of each of their establishments, as also separate accounts, since assessed to taxes separately. It is no doubt true that if each of the petitioners engaged employees in excess of 20 persons, are bound to be covered under the Act and liable to pay contributions, both employer and employee. In the teeth of the objections of the petitioners, it was the obligation of the Regional Provident Fund Commissioner to ensure the summoning of the two Vigilance Officers, the witnesses who submitted the report, for cross -examination by the petitioners. That procedure was not followed by the Commissioner.