The Central Board of Trustees has the power to challenge the orders passed by the Tribunal under the EPF Act, and the Regional Provident Fund Commissioner / Assistant Provident Fund Commissioner can determine the outstanding PF liability based on the report of the Enforcement Officer if the establishment fails to lead evidence and produce records to discredit the report.

[W.P(C) Nos. 17426,17493,17494,17501 of 2015 and 26004 of 2016]

This batch of writ petitions has been filed impugning the orders passed by the Employees Provident Fund Tribunal, New Delhi in the appeals filed by the respondents against the order passed by the Regional Provident Fund Commissioner under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (‘the EPF Act’ for brevity). The Tribunal in all the orders impugned in these writ petition has set aside the order passed by the Regional Provident Fund Commissioner under Section 7A of the EPF Act.

2.The Tribunal has held that the Commissioner is required to determine the outstanding PF liability by fairly conducting an enquiry. The Commissioner did not hold any enquiry regarding non enrollment of employee as contemplated in Paragraph 26B of the Employees Provident Fund Scheme,1952 (‘the Scheme’ for short). It was also held by the Tribunal that the determination of the dues is to be made on average basis whereas the Commissioner has assessed the dues on omitted wages, taking average wages per day per employee for the periods multiplying with the number of man-days per month, which is accepted for the purpose of calculation of welfare fund dues and ESI dues. This is legally not sustainable. The Commissioner can calculate and quantify contributions only on the basis of wages actually drawn by the employees whether paid on weekly, fortnightly or on monthly basis. But there cannot be any assessment of EPF contribution on the basis of “average or presumptions”. It was also held that unless and until the workers were identified, determination of the amount on hypothetical basis does not serve the very purpose for which the EPF Act and Schemes have been enacted and framed, since the money would not reach to the workers for whom it is meant till the time they are identified.

Therefore, the determination should be precisely based on the wages drawn by the employees as per the records.

3.The respondents have raised preliminary objection regarding maintainability of the writ petition by the Central Board of Trustees of Employees Provident Fund organization. The learned counsels for the respondents submitted that the Central Board of Trustees has no locus standi to prefer a writ petition challenging the order passed by the authorities under the EPF Act and Schemes. There is no power conferred on the Central Board of Trustees to institute legal proceedings challenging the appellate order passed by the Tribunal. It is further submitted that the Board was not a party in the proceedings either before the Regional Provident Fund Commissioner or at the appellate proceedings before the Tribunal. The Board cannot be said to be an aggrieved or affected party which enables it to challenge the impugned order passed by the Tribunal. There is no authorization in favour of the petitioner to challenge the impugned order before this court.

4. The limited and specified power of the delegation provided under the provision of the EPF Act and the Schemes framed thereunder cannot be used to challenge the order passed by the Tribunal. Under Section 5D and 5E of the EPF Act and Schemes framed thereunder, it is clearly mandated that the Central Board of Trustees cannot delegate its power to any of the officers, who discharge the same function as that of the delegate. No authorisation is given to the Assistant Provident Fund Commissioner for filing the writ petition in the name of the Central Board of Trustees. The Central Board of Trustees cannot exercise any power, which would not fall in its jurisdiction under the provisions of the EPF Act and Schemes. It has been further submitted that the officers of the Tribunal discharging quasi judicial functions are not supposed to support their own orders, if such orders are challenged before the higher forum.

5.The Central Provident Fund Commissioner is the secretary of the Central Board. The EPF Act and the Schemes do not empower the