The main legal point established in the judgment is the obligation to waive employees' share of PF contribution for the pre-discovery period and the necessity of identifying employees before effecting recovery.

1. By order dated 19-09-2001, the petitioner was protected. By order dated 29-11-2001, the petition was admitted and the interim relief granted to the petitioner was continued.

2. I have heard Shri R.N. Dhorde, learned Senior Advocate along with Shri Mobin Shaikh for the petitioner and Shri K.B. Choudhari, for the Provident Fund Authorities respondent Nos. 1 to 5.

3. By an order dated 19-11-1997, the respondent No. 1/Regional Provident Fund Commissioner, (R.P.F.C.), Mumbai, made the petitioner/ society amenable to the jurisdiction of Employees Provident Fund and Miscellaneous Provisions Act, 1952 (E.P.F.M.P. Act) 1952. By the said order the Provident Fund Act was made applicable to the petitioner/society and all its establishments/ Branches/ Departments with effect from 01-08-1982. It is thereafter that the recovery proceedings in accordance with the Act were initiated against the petitioner/society. I do not find it necessary to go into the entire facts set out in this petition, in view of the order that I propose to pass.

4. The petitioner is aggrieved by the order dated 19-11-1997 applying the E.P.F.M.P. Act with retrospective effect. The petitioner is equally aggrieved by Section 7-A enquiry, by which the employers and employees contribution is sought to be recovered from 01-08-1982 despite the fact that the workers alleged to have been employed by the petitioner were no longer available and as such were no longer the beneficiaries. The petitioner is also aggrieved by the order of the E.P.F., Appellate Tribunal, New Delhi, to the extent of its refusal to condone the delay of 120 days in filing of an appeal under Section 7(I) of the E.P.F.M.P. Act.

5. Shri Dhorde, learned Sr. Advocate, drawn my attention to para No. 17 of the petition memo to indicate that an amount of Rs. 7,39,929/- (Rs. Seven Lakhs Thirty Nine Thousand Nine Hundred Twenty Nine only) were assessed by the respondent No.1/R.P.F.C. to be outstanding PF contributions. He has also drawn my attention to the observation of the E.P.F., Appellate Tribunal, New Delhi, in para No. 3 which reads thus:-

“Under the procedure Rule an aggrieved person may file an appeal within 60 days from the date of communication of the order. A further delay of 60 days can be condoned by this Tribunal. That way, an appeal should be filed not beyond 120 days from the date of communication of the impugned order. In this case the appeal has been filed after years. Thus, this Tribunal is helpless to entertain this appeal being heavily barred by time. It is feeling helpless to set aside such an illegal computation of PF contribution. For computing PF contribution, it is obligatory on the 7A authorities that they should waive employees share of PF contribution for the pre-discovery period as per general Notification issued by the Central Government in the Ministry of Labour. In relation to educational institutions also the CBT, in consultation with the Ministry of Labour, Govt. of India, has issued direction that employees share of contributions from their wages for the period from 01-03-1982 to 31-01-1988 should not be recovered if the employer has not deducted it from the wages of the employees and employer and employees do not volunteer to pay the same. As a fact in the present case many of the employees from the year 1982 to 1997 have left the job. According to the appellant they are traceless. The appellant has also notified in newspapers to such employees for appearing and giving their names and address as directed by the APFC subsequent to passing of the impugned order. But despite all efforts, only 8 persons have turned up. I am unable to see how any amount which cannot be related to an employee can be said to be PF contribution as defined in the EPF and MP Act, 1952 and if it cannot be a PF contribution how the PF authorities can recover it and penalise the employer for delayed payment etc.”

6. I do not see any reasons set out in the impugned order to justify the refusal