Judgment:
ORDER
B.P. Dharmadhikari, J.
1. Heard Jagtap and Deshpande, learned Counsel for the petitioners and Shri Sundaram, learned Counsel for the respondent.
2. Rule. Rule is made returnable forthwith by consent of the parties.
3. The grievance made by the petitioners in these writ petitions is that though in a notice inviting petitioners for hearing the respondent specifically mentioned that hearing would be only in relation to issue of applicability of the Act but the said respondent has started making enquiry also with a view to find out the amount of provident fund due. It is the argument of the learned Counsel for the petitioners that issue of applicability is required to be decided first and after such issue is decided and it is held that the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act), is applicable, then only the amount of provident fund contribution can be worked out. He has relied upon the provisions of Section 7-A. Clause (1) Sub-clause (a) for that purpose. He has also relied upon the judgment of the Rajasthan High Court in the case of Prem Chand v. R.P.F. Commissioner, Jaipur .
4. As against this, Shri Sundaram, learned Counsel for the respondent states that Section 7-A of the Act does not contemplate such piecemeal enquiry and in all cases, the enquiry is about the applicability of the Act and also about the amount of contribution. He states that while passing the order, the authority will first consider whether the Act is applicable and if the authorities find that the Act is applicable then only the authorities will proceed further to work out the amount of provident fund contribution. He contends that the judgment on which the reliance is being placed is not applicable.
5. Because of grievance made by the petitioners, specific query was put to counsel for the respondent about the procedure being followed in other cases and he states that the same procedure is being followed without any exception.
6. Perusal of Section 7-A of the Act demonstrates that if the issue regarding applicability of Act arises, same can be determined by the Provident Fund authorities first and if the Act is applicable, the authorities can proceed further to determine the amount of provident fund contribution. Shri Jagtap, learned Counsel for the petitioners has placed reliance upon the word 'and' which has been used in between Sub-clause (a) and (b) of Section 7-A of the Act. He contends that both the inquiries are two separate inquiries to be held at separate time. However, by reading of Section 7-A of the Act, no such interpretation can be supported. As the issue of applicability of the Act is involved in this case, the authorities have to decide that issue first and then only they can proceed further to determine the amount of provident fund contribution. The said sub-clause does not contemplate two distinct inquires at two stages for that purpose. The judgment on which reliance has been placed by Shri Jagtap, does not support such contention and it only lays down that provisions of Section 7-A of the Act requires the respondent to decide first whether the Act is applicable to the establishment of the petitioners or not. Without giving such finding first, the authorities cannot proceed to quantify the amount of contribution.
7. The main argument of the petitioner is that the authorities have to first find out whether the Act is applicable to the establishment of the petitioner or not. Until and unless that issue is decided, the authorities cannot move further and determine the amount due from the employers. The next argument of the petitioners is that authorities have to decide these issues separately and pass two orders in the process so as to enable the employers to challenge those two orders.
8. That is not in the spirit of the provisions of Section 7-A of the Act. The Act is a welfare legislation and the interest of workers are involved and as such no such question can be allowed to be decided as preliminary issue and allowed to be challenged at that stage so as to postpone the determination of rights and benefits of workers till the question is finally adjudicated by the Competent Court or authority.
9. Shri Jagtap, learned Counsel for the petitioner also makes a grievance that though the petitioners are co-operating with the. authorities, still the authorities have issued' notices of bailable warrants against the petitioners. He wants to argue that there is no provision in the Act which authorises such officers to issue bailable warrants.
10. Shri Sundaram, learned Counsel for the respondent states that bailable warrants issued by the respondent are being withdrawn and hence the issue need not be considered in this writ petition. In view of the statement is made by Shri Sundaram, it is not necessary for this Court to consider this issue in this writ petition.
11. Shri Jagtap learned Counsel points out that the applicability of the Act is being questioned on two grounds first that the petitioner is not a contractor working with Indian Oil Limited and number of employees is also less than 20. It is apparent from this defence that if the amount of provident fund contribution is to be worked out, these details will be required to be considered by the authorities and the authorities and the nature of enquiry in this respect will be identical and overlapping with one which will be required to be undertaken for deciding issue of applicability of the Act. It means that there will be two separate inquiries for two issues to be decided by the authorities and unnecessary wastage of time. Shri Jagtap, learned Counsel further prays that in case the authority holds against the petitioner and works out the amount of contribution, the said order should be stayed for a reasonable time so as to enable the petitioners to approach the appropriate forum.
12. Shri Sundaram, learned Counsel for the respondent opposes this request of the petitioners.
13. However, considering the defence of the petitioners before the respondent authorities, I am inclined to grant such protection to the petitioners. It is, therefore, made clear that if the Act is applicable to the establishment of the petitioners and the amount is worked out to be due from the petitioners on account of provident fund contribution, said order shall remain stayed for a period of three weeks from the date of such order to enable the petitioners to take appropriate steps in the matter.
14. In view of the above, there is no merit in writ petitions and in view of the observations made above, writ petition is disposed of. Rule accordingly. No order as to costs.
15. The petitioners to appear before the Respondent for further enquiry on October 3, 2005, as requested by the learned Counsel for the petitioners.