1. The petitioner has filed the present writ petition assailing the order dated 7th July, 2011 passed by learned Employees' Provident Fund Appellate Tribunal, New Delhi in ATA No. 689(19)2008 (M/s. Gopi Talkies v. RPFC, Chhattisgarh). The petitioner has also assailed the recovery notices dated 27.06.2008 (Annexure P-2), 9.5.2007 (Annexure P-3), order dated 25.04.2007 (Annexure P-4), which is recovery certificate issued under Section 8(B) of Employees' Provident Fund and Misc. Provisions Act, 1952 (for short 'EPF & MP Act, 1952') as well as the order dated 27.10.2006 passed under Section 7A of the EPF Act by respondent No. 3, Assistant Provident Fund Commissioner and Authorized Officer, in Enf/RO/PPR/CG/3694/95 assessing the dues of employees to the tune of Rs. 5,84,476/-.

2. Brief facts, as projected by the petitioner, are that for the purpose of determining the amount dues towards provident fund and allied dues, an enquiry under Section 7A of the EPF & MP Act, 1952 was initiated, employer was summoned to present its case and was directed to appear before respondent No. 3-Assistant Provident Fund Commissioner on 25.11.2005. The petitioner did not appear on that date i.e. 25.11.2005 and thereafter, the matter was adjourned on various dates and as reflected in the order itself, finally the case was adjourned to 24.04.2006. As per the order sheet filed by the petitioner itself it reflects that the petitioner has refused to receive the summon dated 10.04.2006 for appearance before the Assessing Authority. The assessing authority on the basis of report submitted by the Enforcement Officer dated 04.04.2006 has assessed the dues of the employee. On the basis of report submitted by the Enforcement Officer, assessment under Section 7(A) of the EPF & MP Act, 1952 has been done for the period commencing from 10.9.1986 to the month of September, 2005 to the tune of Rs. 5,97,476/-. The Assistant Provident Fund Commissioner while assessing the dues treating the amount of Rs. 80/- as minimum wages per day per employee for 26 days for 143 months for 06 employees for the period under assessment. Since no dues were deposited by the petitioner, therefore, respondent No. 4 has issued notice to the petitioner on 9th May, 2007 (Annexure P-3) under Second Schedule of the Income Tax Act, 1961 read with Sections 8B to 8G of the EPF & MP Act, 1952 for declaring the petitioner as defaulter as provided under Section 8F of the EPF & MP Act, 1952 before attaching the bank account of the petitioner Establishment. Thereafter, Assistant Provident Fund Commissioner has issued recovery certificate under Section 8(B) of the EPF & MP Act, 1952 to the tune of Rs. 5,84,476/- vide Annexure P-4.

3. These three orders have necessitated the petitioner to file review application before the respondent No. 3 as per Section 7B(4) of EPF & MP Act, 1952 on 17.06.2008 contending that in the report, assessment/revaluation of the EPF contribution has been dealt with on the basis of report of Enforcement Officer whereas petitioner-Establishment has already deposited the EPF contribution up to the year 1997 but still the assessment for the entire period commencing from 10.9.1986 to the month of September, 2005 has been assessed which is prima facie mistake on the documents placed on record and, therefore, he prays for review of the order and also prayed that the bank account, which has been seized by them, be re-opened and he may be allowed to participate in the proceedings. Thereafter, vide order dated 27.06.2008, respondent No. 3-Assistant Provident Fund Commissioner has rejected the said review application by non-speaking order stating that the application for review filed by the petitioner is time barred.

4. All these orders have been assailed by the petitioner by filing an appeal before the Employees Provident Fund Appellate Tribunal, New Delhi under Section 71 of the EPF & MP Act, 1952, being ATA No. 689 (19) 2008 [M/s. Gopi Talkies v. RPFC, Chhattisgarh] mainly contending that though petitioner-Establishment has already paid its EPF contribution for the period commencing for the period from 1986 to 1997, however, the records for the same were available at Indore office only, which should have been considered by the Assessing Authority at the time of payment of dues but the same has not been done. It has also been stated that appellant has made all payments towards the Employer's contribution from April, 1997 till September, 2005 vide challan dated 13.6.2008 amounting to Rs. 28,314/- and another amount of Rs. 48,077/- has also been attached from the accounts of the appellant in this regard being Rs. 37,077/- from its account with the State Bank of India, Chakradhar Nagar, Raipur and State Bank of India, Gandhi Ganj, Raigarh Branch. Thus, a total amount of Rs. 76,391/- has been recovered from the bank account of the petitioner. It has also been stated that the petitioner has also filed writ petition before this Court, being Writ Petition (C) No. 4964/2007 titled as "Gopi Talkies v. The Employees' Provident Fund Organization & others" against the issuance of show cause notice issued by the authority concerned. The said writ petition was dismissed by the Court vide order dated 22nd day of August, 2007 with liberty to file a statutory appeal under Section 7-I of the EPF & MP Act, 1952. After dismissal of the writ petition on the ground of availability of alternative remedy, the petitioner again filed an application for review on 17.6.2008, which was dismissed by respondent No. 3 stating that the said application for review is filed as time barred vide order dated 27.6.2008.

5. Being aggrieved and dissatisfied with the review order dated 27.6.2008, the petitioner filed an appeal before the Employees' Provident Fund Appellate Tribunal, New Delhi, which was registered as ATA No. 689/19/2008. In the said appeal, respondent No. 1 has passed an interim order in favour of the petitioner on 12.12.2008 directing the parties to maintain status quo till the disposal of the appeal. Ultimately, respondent No. 1 vide impugned order dated 7.7.2011 (Annexure P-1) dismissed the appeal filed by the petitioner. Against the said appeal the instant writ petition under Article 226 of the Constitution of India has been preferred.

6. Learned counsel for the petitioner would submit that the Assistant Provident Fund Commissioner has dismissed the review application without assigning any reason, which is in violation of principle of natural justice. He further submits that learned Assistant Provident Fund Commissioner has assessed the dues without considering the fact that they have already deposited the dues for the period from 1986 to 1997 and thereafter from the year 1997 onwards up to year 2005 as mentioned in the review application as well as in the memo of appeal filed by the petitioner before the Tribunal.

7. On the other hand, learned counsel for the respondents would submit that the impugned order passed by the Assessing Authority under Section 7A of the EPF & MP Act, 1952 is legal and justified as the respondents have refused to accept summon, they have not provided any material before the Assessing Authority and the Assessing Authority has passed the order on the basis of the report submitted by the Enforcement Officer, therefore, there is no illegality or perversity in the impugned order dated 7th July, 2011 passed by the Employees' Provident Fund Appellate Tribunal, New Delhi. He would further submit that so far as review application is concerned, it has rightly been rejected by the authority and the learned Tribunal considering the factual matrix of the case has rightly dismissed the review application as no apparent mistake on face of the record or new facts which are not available with the petitioner have been brought on record. There is no such circumstance, which warrants review of the order under Section 7A of EPF & MP Act, 1952. Thus, there is no material illegality in rejecting the review order and accordingly impugned order passed by the learned Tribunal is in accordance with law, which does not call for interference of this Court in the instant petition. He would also submit that as per inspection note dated 22.11.1996, it is evident that petitioner is not properly complying with the provisions contained in EPF & MP Act, 1952, as such, proceedings under Section 7A of the EPF & MP Act, 1952 was initiated for assessment of the dues and would pray for dismissal of the writ petition.

8. I have heard learned counsel for the parties and perused the material available on record.

9. According to counsel for the respondents, since the petitioner has refused to accept the summons, therefore, assessing authority has no other option but to pass an order on the basis of material available with him i.e. report of Enforcement Officer. Submission made by learned counsel for the respondent is not acceptable as the report of the Enforcement Officer is no substitute of proceedings for assessment of the dues. If the Establishment has failed to appear before the 7-A Authority and also failed to produce the records, they have power under Section 7-A(4) of the EPF & MP Act, 1952 for insisting presence of witnesses and documents as per Section 7(A)4 of the EPF & MP Act, 1952. Section 7(A) of the EPF & MP Act, 1952 extracted below:

"[7A. Determination of moneys due from employers.--

(1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order,--

(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and

(b) determine the amount due from any employer under any provision of this Act, the Scheme or the [Pension] Scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary.]

(2) The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 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 (45 of 1860).

(3) No order [***] shall be made under sub-section (1), unless [the employer concerned] is given a reasonable opportunity of representing his case. [(3A) Where the employer, employee or any other person required to attend the inquiry under sub-section (1) fails to attend such inquiry without assigning any valid reason or fails to produce any document or to file any report or return when called upon to do so, the officer conducting the inquiry may decide the applicability of the Act or determine the amount due from any employer, as the case may be, on the basis of the evidence adduced during such inquiry and other documents available on record.]

[(4) Where an order under sub-section (1) is passed against an employer ex parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show-cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry: Provided that no such order shall be set aside merely on the ground that there has been an irregularity in the service of the show-cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer. Explanation.-- Where an appeal has been preferred under this Act against an order passed ex parte and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this sub-section for setting aside the ex parte order.

(5) No order passed under this section shall be set aside on any application under sub-section (4) unless notice thereof has been served on the opposite party.]"

10. Submission of learned counsel for the respondent that since no document was produced before the authority, therefore, assessment order has rightly been passed on the basis of report of Enforcement Officer. The assessment order passed under Section 7(A) of the EPF Act based upon the report of Enforcement Officer is not permissible as held by Hon'ble Division Bench of Delhi High Court in case of The Regional Provident Fund Commissioner, Employees' Provident Fund and Ors. Vs. Glamour, Proprietor Sethhassaram & Sons reported in 1982 Labour and Industrial Cases 1787 wherein the Hon'ble Division Bench has held as under:-

"Reliance was placed on the investigation carried out by the Provident Fund Inspector who had stated that during the inspection it was revealed that the respondent only charged fixed commission from V.S. Kartar Ghand. It was denied that V.S. Kartar Chand was registered under Shops and Establishment Act. It was also maintained that the orders were booked by M/s. Glamour on its own receipts forms and payment received. It is not disputed that the report of the inspector was not sent to the respondent V.S. Kartar Chand. It is also clear that there is no finding given by the Regional Provident Fund Commissioner about the points which have been raised by the respondent. No doubt it is for the respondent to give evidence which he wants. But the respondent had detailed various grounds to support his plea that V.S. Kartar Chand was not his contractor. Of course it was open to the Commissioner not to find the Explanation satisfactory. But before doing that it was incumbent on the appellant to give the respondent an opportunity of hearing as required by Section 7A(3) of the Act. Mr. Bagai refers to the letter of 3rd April, 1965 written by the respondent to the appellant in which it is stated that their representative met the Regional Provident Fund Commissioner and this shows that an opportunity of hearing was given. But this is where the respondent makes a grievance by pointing out that though the letter gave various facts on the basis of which it was claimed that V.S. Kartar Chand could not be held to be his employee were not dealt with and a bald finding was given that six people working for V.S. Kartar Chand would be treated the employees of the respondent. But without holding an enquiry it was not permissible to give a finding on points which necessarily required looking into the evidence. Inspector's report, apart from being no substitute for a proper enquiry, was not even made available to the respondent. The respondent is entitled to show that the inspector's report is not based on facts and hence the establishment is not covered by the Act. This opportunity was denied to the respondent and we. Therefore, agree with the learned Judge that the impugned order could not be sustained."

11. From perusal of the order passed in Section 7-A of the EPF & MP Act, 1952, it does not reflect the particulars of the employee, earning of the employee or details of the employee, which are required for determination of the EPF dues. The Hon'ble Supreme Court in the matter of Food Corporation of India v. Union of India, reported in (1990) 1 Supreme Court Cases 68 [LQ/SC/1989/532] has insisted for identification of the beneficiaries, relevant portion thereof reads as under:-

"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 Code of Civil Procedure for trying a suit. The section reads as follows:

"S. 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 sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a Court under the Code of Civil Procedure, 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."

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 not 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.

12. Again the Supreme Court in the matter of Himachal Pradesh Forest Corporation v. Regional Provident Fund Commissioner reported in (2008) 5 Supreme Court Cases 756 [LQ/SC/2008/839] has held as under:-

"5.............We accordingly dismiss the appeals but reiterate the recommendation that the amounts due from the Corporation will be determined only with respect to those employees who are identifiable and whose entitlement can be proved on the evidence and that in the event the record is not available with the Corporation (at this belated stage), it would not be obliged to explain its loss, or that any adverse inference be drawn on this score. With this very small modification, we dismiss the appeals."

13. Since the assessment order is silent with regard to identification of the employee, therefore, the order is contrary to the well settled position that identification of the beneficiaries is very much required for assessing the dues as it has to be credited to individual beneficiary who is a member of EPF Act, as such, order under Section 7A of the EPF & MP Act, 1952 passed on 27.10.2006 is liable to be and is hereby set aside.

14. So far as order of review order dated 27.06.2008 is concerned, the same has been passed without assigning any reason, as such, it is non-speaking order i.e. one line order has been passed while deciding the case. It is also against the well settled position of law laid down by the Supreme Court that the authorities while deciding the right of the parties should give atleast some reasons while upholding their views.

15. Hon'ble Supreme Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. Shukla and Brothers reported in (2010) 4 SCC 785 [LQ/SC/2010/398 ;] has held as under:-

"13. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment. Now, we may refer to certain judgments of this Court as well as of the High Courts which have taken this view.

19. In the cases where the Courts have not recorded reasons in the judgment, legality, propriety and correctness of the orders by the Court of competent jurisdiction are challenged in absence of proper discussion. The requirement of recording reasons is applicable with greater rigor to the judicial proceedings. The orders of the Court must reflect what weighed with the Court in granting or declining the relief claimed by the applicant. In this regard we may refer to certain judgments of this Court."

16. From bare perusal of the review order it is quiet vivid that it is a one line order by observing that review is rejected as it is time barred which is without reason. As such, the review order is also non speaking order and the same is liable to be set aside. Learned Employees' Provident Fund Appellate Tribunal while dismissing the appeal has not taken into consideration the well settled position of law that identification of the beneficiaries has not been dealt with by the authorities and also not considering the facts that the petitioner-Establishment has also stated in his memo of appeal that they have already paid the dues for the period from 1986 to 1997 and thereafter from the year 1997 to the year 2005 onwards and whether the amount, which has been paid by them, was correct or not, the learned Tribunal has not given any finding in this regard and has mechanically dismissed the appeal filed by the appellant.

17. It is incumbent upon the Employees' Provident Fund Appellate Tribunal to pass a reasoned and speaking order, which is not passed, therefore, the order passed by the learned Appellate Tribunal is also liable to be set aside and is accordingly set aside.

18. In view of the foregoing discussion, the writ petition is allowed in part. The order dated 7th July, 2011 recovery notices dated 27.06.2008 (Annexure P-2), 9.5.2007 (Annexure P-3), order dated 25.04.2007 (Annexure P-4) as well as the order dated 27.10.2006 are set aside. Now, the matter is remitted back to the Assistant Commissioner, Provident Fund to decide the assessment proceeding under Section 7A of the EPF Act afresh in accordance with law.

19. It is made clear that petitioner shall appear before the authority concerned on 15th March, 2022 and thereafter proceedings will be conducted in accordance with law after affording sufficient opportunity to the parties concerned.

20. With the aforesaid observations, the writ petition is allowed in part.

21. It is made clear that nothing in this order shall be construed as an expression of an opinion on merits of the case.