TaxTMI 
TaxTMI 
2011 (6) TMI 1007
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.... the interim stay with a condition that the petitioner shall file an affidavit of undertaking stating that he will make good the amount to the department in case they lost the writ petition. No affidavit has been filed by the petitioner management till date. 3.The case of the petitioner was that it is a manufacturing firm of Semi-finished speedo meter, electrical temperature gauges and warning lamps. It is covered by both the ESI and PF Acts. The wages are paid to workmen under different heads. Every year a revision was done during the month of July. Prior to the year 1998, the basic wages and Dearness Allowance constituted 50% of the total wages. On request made by the workmen, it was decided that further increase in wages would be in the form of allowances and they will not attract contribution towards PF, bonus and gratuity. The basic wage and dearness allowance constituted 45% of total emolument and the remaining amount was to be apportioned among HRA and variance allowances as well as to fulfill the production target. 25% of the emolument was given to attendance and that the production target was subject to variation from one worker to another. The production target was nam....
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....on them for the benefit of the employees concerned. In view of the decision of this Court, it is clear that the Act and the Scheme apply to all the sections of the respondent, and if so it follows that the respondent is liable to make contributions and that at the rate specified in the Act." 7.The said judgment of the Supreme Court was quoted and followed by the Bombay High Court in Gosalia Shipping Pvt. Ltd., Goa and another Vs. Regional Provident Fund Commissioner, Goa and another reported in 1997-II-LLJ 38 (Bom). In paragraph 11, the Bombay High Court had observed as follows: "11....This Judgment of the Apex Court should conclude the matter. Therefore any settlement and the Award between the parties cannot be binding on an Authority under the Act who can arrive at a conclusion based on all materials available including settlements if any produced before him." 8.The question as to the authority under Section 7A can go into the question as to whether certain items can come within the term "basic wags" and he can lift the veil to determine the issue has also been considered by the Supreme Court in Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund....
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....vide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 11.The Supreme Court in United Bank of India v. Satyawati Tondon reported in (2010) 8 SCC 110 dealt with SARFAESI Act and DRT Act and in paragraphs 55 and 56, it had held as follows: "55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection. 56.Insofar as this case is concerned, we are convinced that the High Court was not at all justified in injuncting the appellant from taking action in furtherance of notice issued under Section 13(4) of the Act. In the result, the appeal is allowed and the impugned order is set aside. Since the respondent has not appeared to contest the appeal, the cost....
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....ribution, recovery can be made straightaway. If the employer disputes the correctness of the order under Section 45-A, he could challenge the same under Section 75 of the Act before the ESI Court. 28.What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI Court, but also the settlement of the dispute of a claim by the corporation against the employer. While this is so, there is no impediment for the Corporation also to apply to the ESI Court to determine a dispute against an employer where it is satisfied that such a dispute exists. If there is no dispute in the determination either under Section 45-A(1) or under Section 68, the Corporation can straightaway go for recovery of the arrears. 30.The legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is based on the information available to it. It shows whether information is sufficient or not or the Corporation is able to get information from the employer or not, on the available records, the Corporation could determine the arrears. So, the non-availability....