NOW UNIT OF M/S ASHOKA NON-FERROUS METALS LTD Vs. ASST PROVIDENT FUND COMMISSIONER, HAVING OFFICE AT BHAVISHYA NIDHI BHAVAN

JUDGEMENT

(1.) The challenge in this petition under Article 227 of the Constitution of India is to the order dated 27/03/2006, passed by the respondent holding that the petitioner is liable to pay total contribution of Rs.1,27,573/- as contribution towards provident fund of the employees for the period from November, 2003 to August 2005. The said order has been confirmed in appeal by order dated 17/03/2011.

(2.) Shri Palekar, the learned Counsel for the petitioner has raised two contentions. Firstly, it is contended that the respondent has not recorded any finding as to what is the basic wage of the individual employees for the purpose of calculation of the provident fund contribution. Secondly, it is submitted that under a Circular of the year 1989, the authorities could not have insisted for recovery of the employees' share of the contribution for pre-discovery period i.e. from November, 2003 to December, 2004. It is submitted that the petitioner establishment was covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (the Act, for short), retrospectively with effect from November, 2003. It is submitted that in terms of the Circular as referred above, the authorities cannot insist for recovery of the employees' contribution for the period prior to December, 2004.

(3.) On the contrary, it is submitted by Shri Singh, the learned Counsel for the respondent that the respondent as well as the Appellate Authority have come to the conclusion that the basic wage paid to the employees has been deliberately shown on the lower side, in order to evade the payment of the employees's share of the provident fund contribution. Shri Singh has referred to a chart under which the total emoluments paid to the various employees have been shown with breakup thereof. For instance, Shri Singh has pointed out that in respect of an employee Mr. Navin Bhat, the basic wage is shown to be Rs.500/-, while the HRA is shown to be Rs.375/-. In respect of Mr. Dayanand Roy, while the basic wage is shown to be Rs.600/-, the HRA is shown to be Rs.450/-. This, according to Mr. Singh, is done deliberately to evade the payment of provident fund contribution. Shri Singh, however, does not dispute that the provident fund contribution would be payable on the basic wage, which for the purposes of the Act, includes Dearness Allowance, Food Allowance and other Allowances. According to Mr. Singh, the basic wage for the purpose of arriving at the amount, which is payable by the petitioner, has been computed in the context of Section 2(b) read with Section 6 of the Act. In so far as the second ground based on Circular of the year 1989 is concerned, it is submitted that this ground was neither raised before the respondent nor in appeal nor the same is raised in the writ petition. It is submitted that the said ground cannot be allowed to be raised for the first time before this Court.