JUDGMENT :

Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for record on the files of the first respondent pertaining to his order bearing No.TN/ SAO/TBM/ Gr.58/ 31716/ ENF/ 2005 dated 18/19.04.2005 and confirmed by the order No.TN/ SAO/ TBM/ 31716/ ENF/ 2005 dated 13.06.2005 and quash the same and for a consequential direction to the first respondent to consider the case denovo after taking into consideration the materials placed by the petitioner regarding payment of Provident Fund contributions.

1. The order dated 19.04.2005, passed by the Assistant Provident Fund Commissioner, which was conformed by Review Authority in proceedings dated 13.06.2005 are under challenge in the present writ petition.

2. The writ petitioner is a partnership firm duly registered as per the provisions of Indian Partnership Act, 1932. The petitioner states that he was a job contractor under Airport Authority of India, Chennai for loading, unloading, packing and other allied operations at the Air Cargo Complex, at the Chennai Airport for the period from January 1995 to 21.05.2004. The contract amount for the job work was Rs.1,35,640/- per month. The amount is inclusive of wages to the workers their ESI & EPF contributions, cost of uniform, cost of packing materials etc. As per the contract, the ESI & EPF dues paid by the petitioner will be reimbursed by the Airport Authority of India. As such the ultimate financial burden with regard to ESI & EPF contributions was that of the principal employer who is the Airport Authority of India. At the outset, the writ petitioner claims that they are not responsible to pay contributions in respect of ESI & EPF contributions. Contrarily, they say, as per the contract, the second respondent – Airport Authority of India has to pay the contributions of ESI & EPF.

3. The learned counsel appearing for the respondents stated that it is an internal agreement/arrangement between the writ petitioner as well as the Airport Authority of India, which will not have any binding effect, as far as the Competent Authorities of ESI & EPF are concerned. The ESI & EPF authorities conducted an enquiry and the writ petitioner as well as the second respondent had failed to produce any records to the Assistant Provident Fund Commissioner enabling him to conduct the adjudication effectively. The order impugned dated 19.04.2005 reveals that for the purpose of determining the amount due, the employer was summoned to appear before the Assistant Provident Fund Commissioner on 06.04.2005. Shri S.Levakumar-contractor appeared for the enquiry. There was a difference in the wages provided in the form 6A and verified with the wage register (as given by the Enforcement Officer in his report) for the period from 1999 - 2003. For the period from 1995-1999, no records were produced, either by the employer or by the Airport Authority of India.

4. Under those circumstances, the authorities in exercise of the powers conferred under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act 1952, determined the amount due from the employer. Accordingly, Rs.4,63,935/- was determined. Challenging the said original order, the writ petitioner filed a review petition before the very same authority under Section 7B of Employees Provident Fund and Miscellaneous Provisions Act, 1952. The authority namely the Assistant Provident Fund Commissioner examined the review application carefully and found that no valid reason is provided to review the orders passed under Section A. Challenging these orders, the present writ petition is filed.

5. This Court, is of the considered opinion that the writ petitioner has not co-operated for an effective adjudication of the amount to be determined towards EPF and ESI contributions. They have failed to produce the relevant documents enabling the competent authority to assess the contribution to be paid by the employers. Under those c