JUDGMENT 1. The Katihar Medical College through its Chairman cum Managing Director has challenged the orders of the Tribunal, New Delhi, dated 3.8.2011 and 22.9.2011 by which the Tribunal has directed the petitioner to deposit 30% of the assessed amount under section 7-O of the Employees Provident Fund & Misc. Act (hereinafter referred to as the Act). 2. The facts of the case are that for the years 1990-92 an assessment was made by the department under section 7-A which was duly paid by the petitioner college. Again, an assessment was raised for payment of the employees provident fund for the years 1995-2000 under section 7-A of the Act. The order was passed on 8.4.2004. The establishment deposited the assessed amount found by the Regional Provident Fund Commissioner. The Regional Provident Fund Commissioner on examination of the records of the establishment, found that certain amounts were excluded from the purview of assessment for statutory contribution as the management of the establishment claimed that these employees were getting less than Rs.5000/- per month. This exemption is granted to the establishment for those employees who are receiving less than Rs.5000/- as pay / wage vide paragraph 2 (F) (II) of the EDF Scheme, 1952, which was subsequently enhanced to rs.6500/- with effect from 4.5.2001. The Regional Provident Fund Commissioner-II started a proceeding under section 7-C to assess the escaped amount vide order, dated 27.1.2006. The Regional Provident Fund Commissioner under section 7-C assessed the amount payable to the employees as Rs.33,372/- and also amount of interest of Rs.23,811/-. The petitioner being aggrieved by the said order challenged it in appeal. The order of the Regional Provident Fund Commissioner was set aside on the ground that the officer who had assessed the dues under section 7-A of the Act was only authorized to assess the escaped amount under section 7-C of the Act. The matter was remanded back to the authority under section 7-A. It may be noted here that the appellate authority did not pass an order under section 7-O of the Act for deposit of 75% of the assessed amount. The reason is obvious, the order impugned was challenged on the ground of jurisdiction of the authority to decide questions under section 7-C of the Act. The reason is obvious, the order impugned was challenged on the ground of jurisdiction of the authority to decide questions under section 7-C of the Act. Subsequently the amount due under Section 7 C of the Act was re-assessed by the authority under section 7-A of the Act which has been challenged by filing an appeal. 3. In the back ground of the aforesaid facts, the question raised before this court is whether the petitioner is bound to comply with the provisions of Section 7-O of the Act, as it is contended that the order impugned has not been passed under section 7-A of the act? 4. In this context, it would be relevant to examine the provisions of section 7-A (i) and the provisions of section 7C, to determine the scope of the two sections. Section 7-A reads as follows: “7-A. 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 provisions 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 pruposes 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 is given a reasonable opportunity of representing his case. (3) No order shall be made under sub-section (1), unless the employer is given a reasonable opportunity of representing his case. (3-A) 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. (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.” 5. It is a condition for exercise of powers under section 7A that the authority, that the Act must be applicable to the employer which if disputed, has to be decided by the Authority aforesaid. The Authority will after deciding the applicability of the Act, determine the amount due from the employer. Sub-section (2) deals with the manner of conducting the enquiry to determine the questions aforesaid. The provisions call for strict application, inasmuch as sub-section (3) (A) of section 7-A even allows ex-parte enquiry for determination, if the employer fails to appear after being given a reasonable opportunity. Sub-section (2) deals with the manner of conducting the enquiry to determine the questions aforesaid. The provisions call for strict application, inasmuch as sub-section (3) (A) of section 7-A even allows ex-parte enquiry for determination, if the employer fails to appear after being given a reasonable opportunity. Sub-section (4) of the Act allows the employer to apply within three months of service of order challenging the ex-parte order if he can satisfy the authority that the notice was not duly served. 6. Section 7-C of the Act reads as follows: “7-C. Determination of escaped amount – Where an order determining the amount due from an employer under section 7-A or section 7-B has been passed and if the office who passed the order- “(a) has reason to believe that by reason of the omission or failure on the part of the employer to make any document or report available, or to disclose fully and truly, all material facts necessary for determining the correct amount due from the employer, any amount so due from such employer for any period has escaped his notice; “(b) has, in consequence of information in his possession, reason to believe that any amount to be determined under section 7-A or section 7-B has escaped from his determination for any period notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the employer, he may, within a period of five years from the date of communication of the order passed under section 7-A or section 7-B, re-open the case and pass appropriate orders re-determining the amount due from the employer in accordance with the provisions of this Act. “Provided that no order re-determining the amount due from the employer shall be passed under this section unless the employer is given a reasonable opportunity of representing his case.” 7. Section 7-C gives the power to the authority concerned to re-determine the assessment on account of the fact that certain documents were not produced by the employer or on account of the fact that such document has escaped the notice of the authority making an assessment under section 7-A of the Act within specific time frame. Thus, the scope of sections 7-A and 7-C are different in application. Section 7-A gives the initial power to determine whether the Act applies to a particular institution, company, business establishment etc. Thus, the scope of sections 7-A and 7-C are different in application. Section 7-A gives the initial power to determine whether the Act applies to a particular institution, company, business establishment etc. and determine the amount of contribution payable by such an establishment whereas section 7-C is only for the purpose of rectifying any lacunae in the order under section 7-A of the Act. In these circumstances it has been argued that section 7-O will not apply to a proceeding under section 7-C of the Act. Section 7-O reads as follows: “7-O. Deposit of amount due, on filing appeal.- No appeal by the employer shall be entertained by a tribunal unless he has deposited with it 75 per cent of the amount due from him as determined by an officer referred to in section 7-A”. “Provided that the tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section.” 8. Counsel appearing for the petitioner submits that the deposit of the assessed amount due while filing a appeal is in reference to an order passed under section 7-A of the Act, whereas counsel appearing on behalf of the respondents submits that this provision would be applicable in a case where an officer under section 7-A passes an order of assessment, be it an assessment under sections 7-A or 7-C of the Act. 9. For the purposes aforesaid both the counsel has referred to certain decisions which have been annexed in the writ petition as well as in the counter affidavit. 10. Annexure 13 is a judgment delivered by the Bombay High Court in Writ Petition No. 3659/2011 in the case of Writer Safeguard Private Limited vs. Regional Provident Fund Commissioner-II and Assessing Officer and others. In this case the petitioner had challenged the order of the Regional Provident Fund Commissioner in a proceeding under section 7C by filing an appeal. The appellate authority had directed the petitioner to deposit 30% of the assessed amount as per the order of the Regional Provident Fund Commissioner-II. Dealing with this question, the Bombay High court relied on Old Village Industries Ltd. Vs. The appellate authority had directed the petitioner to deposit 30% of the assessed amount as per the order of the Regional Provident Fund Commissioner-II. Dealing with this question, the Bombay High court relied on Old Village Industries Ltd. Vs. Assistant Provident Fund Commissioner, Employees Provident Fund Association & Another, reported in 2003 LLN 572, wherein the Delhi High Court held that if the appeal was preferred against the order under section 14B, the tribunal cannot insist for pre-deposit of the assessed amount. The order quotes paragraphs 6 and 7 of the aforesaid judgment which is being re-produced by this court: “6. The power to waive or reduce the amount to be deposited is relatively to the amount determined by the Officer under Section 7A of the Act. In other words the pre-requisite of deposit of 75% of the demanded amount applicable to an order passed under Section 7A and not to other provisions. The Legislature in its own wisdom has restricted the application of the provisions of Section 7(1) to the order passed under Section 7A. Such provisions are to be construed strictly and cannot be given a wider meaning so as to create a liability which is intended to be correct to the entertainment of an appeal. The liability to deposit arises in the situation strictly contemplated under the provisions of this section. There is nothing in the section so as to extend its application to an order passed under section 14B of the Act. An employer has a right to prefer an appeal against an order under Section 14B, under Section 7(1) of the Act but the pre-condition of deposit for entertainment of such an appeal is not covered under Section 7-O of the Act. Thus, I have no hesitation in rejecting the contention of the respondents that it would be mandatory for the employer to deposit 75% of such amount before appeal can be entertained or even that there cannot be stay of recovery of the said amount by the Appellate authority. The argument raised on behalf of the respondents would be untenable even for another reason that damage is the consequence of the demand raised under Section 7A of the Act. The provisions of Section 14B of the Act attracted only if there is default on the part of the employer. The argument raised on behalf of the respondents would be untenable even for another reason that damage is the consequence of the demand raised under Section 7A of the Act. The provisions of Section 14B of the Act attracted only if there is default on the part of the employer. It being a consequential liability essentially must fall in a category of not the principal liability to attract stringent provisions of pre-deposit to the hearing of the appeal. Such provisions being related to revenue would be construed strictly whether to the advantage or disadvantage of the person upon whom the liability is sought to be fastened. Once the provisions of Section 7-O does not include an appeal against an order under section14B then it would be in no way permissible to include such an order by implication or otherwise. “7. In regard to the pendency of the appeal before the appropriate Forum it is clear that no fault can be attributed to the petitioner employer. He has preferred an appeal in the prescribed Forum under section 7(1) which is admittedly pending before the Appellate Tribunal. The obligation to hear an appeal lies upon the Tribunal and if for any reason whatsoever it is not able to hear the appeal, it will be most unfair to enforce its demand particularly when the validity of such a demand is challenged by the employer on various legal as well as computation basis. In this regard it will be appropriate to refer to a detailed order passed by this court in W.P. (C) No. 16137/2004: “It is a known fact that the post of the Presiding Officer of the tribunal is lying vacant now for more than a year. Its repercussions are serious and must invite attention of all concerned at the relevant quarters of the Government of India. Where this is hampering the administration and justice there is equally and adversely affects the recovery of State revenue and distribution of funds to its rightful claimants. The employers who are fastened with the liability for contribution of fund under provisions of the act are not able to take benefit of the statutory remedy provided to them in law and are compelled to file writ petitions before the High Court which certainly is an avoidable litigation. “Mr. The employers who are fastened with the liability for contribution of fund under provisions of the act are not able to take benefit of the statutory remedy provided to them in law and are compelled to file writ petitions before the High Court which certainly is an avoidable litigation. “Mr. Pati also conceded that different Benches of this court have passed orders and directions requiring the authorities to effectively and expeditiously deal with this problem. Today even orders of other High courts have been brought to the notice of Mr. Pati. Despite of these orders the matter has lingered for too long, may be for one reason or the other. “Furthermore, it also amounts to loss to Government revenue as the Courts are normally inclined to grant stay in such cases because there is hardly any default attributable to the employer at least prima facie. “In the above circumstances it is clear that nobody stands to gain by this inaction on the part of the Government. To provide expeditious justice is not a concept confined to courts only but it must equally apply to the Institutions / Tribunals performing quasi-judicial functions. “The court must take judicial notice of the fact that large number of writ petitions are being filed in this court as well as other High courts, where the petitioners pray for grant of interim orders only on the ground that the Tribunal is not constituted and the appeals filed by them in the Office of the Tribunal have not been heard till date. It is their contention that they cannot be asked to pay huge amounts and their properties be attached by the Department without even granting them an opportunity of being heard. The remedy of appeal before the Tribunal is a statutory remedy and thus every person affected adversely by the order of the lower authorities must be granted an opportunity to substantiate his contentions before the Tribunal. In the case of Arihant Threads Ltd. Vs. Union of India [WP (C) No. 3331 of 2004], a Division Bench of the Punjab and Haryana High court while disposing of number of writ petitions vide its order dated 25th March,2004 passed the following directions: “Learned counsel appearing for the Union of India also assures the court that all steps will be taken by the concerned Ministry to have the appointments finalized expeditiously and without any unnecessary delay. “In view of the statements made on behalf of the Union of India as well as the Provident Fund Commissioner, we do not consider it necessary to go into the merits of the various contentions raised before us. Suffice it to say that the stand taken by the respondents is fair, just and equitable. “On the basis of the statements made on behalf of the respondents, we dispose of this writ petition with directions that the petitioner can file appeal(s) accompanied by a stay application, if not already filed, within two weeks from today. If such appeal(s) are filed proof thereof is shown to the Recovery Officer, then said Officer would not affect recovery of the demand issued under Section 7-A of the Act till decision of the stay application, as stated by the learned counsel appearing for the respondents. We make it clear that the direction would obviously operate only till the disposal of the stay application by the competent authority. We have pious hope that Union of India shall expeditiously make the appointment of the Presiding Officer of the Appellate Tribunal and Regional Provident Fund Commissioner exercising jurisdiction over Punjab and Haryana would not compel the people to approach the court. Such litigation, obviously, is avoidable by timely action on the part of the official respondents. We expect that State o Haryana, State of Punjab which also exercises powers over Union Territory of Chandigarh would take due notice of this order and take appropriate measures at their own level to achieve the public purpose to avoid unnecessary litigation. Obvious result thereof would be fewer burdens on the State exchequer which the State would incur in filing and defending avoidable litigation. “All these writ petitions are accordingly disposed of with the above directions. It appears that the request of the court made in the above order was not sufficient indication for the authorities to act expeditiously as even now and undisputedly the file for appointment to these posts is shuffling from one department to another. The court is unable to appreciate such an approach. At this state I would refrain from commenting any further in this regard or from taking serious view of the inaction on the part of the authorities concerned. The court is unable to appreciate such an approach. At this state I would refrain from commenting any further in this regard or from taking serious view of the inaction on the part of the authorities concerned. I express pious hope that authorities would act now at least with a specific direction to the Secretary, Ministry of Labour and Employment; Secretary, Department of Personnel and Secretary, in charge of Appointment Committee of cabinet, to ensure that the matter in relation to appointment of Presiding Officer of the Tribunal is finalized as expeditiously as possible, and in any case not later than 45 days from the date of this order. Mr. Pati shall submit a compliance report to the court before the next date of hearing. The above case is fixed on 25.11.2004 for directions.” 11. Counsel for the respondents, on the other hand, relies on a judgment of the Karnataka High Court in CWJC No. 20403/2005 in the case of M/s. Talaguppa Plywood Products (P) Ltd. Vs. Employees Provident Fund Tribunal. The order of the Karnataka High Court is in direct conflict with the order passed by the Delhi High Court. While considering whether the provisions of section 7-O, the Karnataka High Court differed with the proposition laid down in Old Village Industries case (supra). Paragraphs 9 to 11 of the judgment would be relevant which is being quoted below: “9. It is necessary to note that Section 7-1 provides for an appeal to the Tribunal as against an order passed u/s 14B of the Act. The question now is whether the employer is required to deposit the amount due by way of damages on filing the appeal as per Section 7-O of the Act. Section 7-O mandates that unless the employer has deposited with the tribunal 75% of the amount due from him, as determined by an officer referred to in Section 7A, no appeal presented by him shall be entertained. Thus, the question would be whether the order levying penalty damages passed as per Section 14B of the Act can be said to be the amount due from an employer, as determined by an officer referred to in Section 7A. The officers referred to in Section 7A are the Central Provident Fund Commissioner, Additional Central Provident Fund Commissioner, Deputy Provident Fund Commissioner, Regional Provident Fund Commissioner or Assistant Provident Fund Commissioner. The officers referred to in Section 7A are the Central Provident Fund Commissioner, Additional Central Provident Fund Commissioner, Deputy Provident Fund Commissioner, Regional Provident Fund Commissioner or Assistant Provident Fund Commissioner. The determination of the dues spoken to under Section 7A by these officers is the determination of the amounts due from the employer under any provisions of the Act or the Scheme, as the case may be. Whatever be the provisions of the Act under which the dues from the employer are determined, the power is exercisable by the officers mentioned under section 7A. All such determinations made by these officers are appealable under section 7(I). Can it be said that the damages found due and imposed as per the provisions contained under section 14B of the Act r/w paragraph 32A of the scheme is the amount due as determined by the officers mentioned under section 7A is the point to be answered. As long as the amount is determined by the officer, enumerated under section 7A and as long as the amount is determined to be due from any employer under the provisions of the Act or the Scheme, the determination is traceable to section 7a(b). Even, if it is determination of the amount of damages due from an employer it is as such a determination made under the provisions of the Act. The levy of damages is also to be done only after giving opportunity to the employer to have his say and by following the procedure prescribed under Paragraph 32-A of the Scheme. The moment employer commits default in making prompt payment of the contribution due, he would be liable to pay the damages and naturally the amount of damages has to be determined and the determination made will be applicable as provided under section 7-I of the Act. The pre-condition for entertaining such an appeal, as provided under section 7-O of the Act is deposit 75% of the amount. Therefore, the expression amount due as determined under any provisions of the Act and the Scheme would necessarily include the dues arrived at and determined as damages under section 14-B r/w Paragraph 32-A of the Scheme. “10. Decision relied upon by the learned counsel for the petitioner in Old Village Industries? Therefore, the expression amount due as determined under any provisions of the Act and the Scheme would necessarily include the dues arrived at and determined as damages under section 14-B r/w Paragraph 32-A of the Scheme. “10. Decision relied upon by the learned counsel for the petitioner in Old Village Industries? case rendered by the Delhi High Court proceeds on the assumption that power to waive or reduce the amount to be deposited is relatable to the amount determined by the officer under section 7A of the Act. It further states that the pre-requisite of deposit of 75% of the demanded amount is applicable to an order passed under section 7A of the Act and not to other provisions. What is significant to note is that Section 7A does not deal with any specific or particular dues in respect of which determination is to be made under section 7A. In fact no determination in respect of any particular amount is provided under section 7A. Section 7A is a general provision clothing the authorities with the power to determine the money due from the employers under any provisions of the Act or the scheme. “11. Read as a whole, Section 7A only means that the various authorities mentioned therein in sub-clause (1) will have the authority and the power to determine the amount due from any employer under any provisions of the Act of the Scheme. Therefore, restricting the requirement of depositing the amount while filing the appeal to the determination made under section 7A of the act does not arise. Moreover, the language of Section 7-O dealing with deposit of 75% of the amount due on filing the appeal is referable not to any order passed under section 7A but to the amount found due as determined by an Officer referred to under Section 7A. Reference made to the officer who determines the dues under Section 7A cannot be taken as reference to dues determined as per section 7A. Dues are determined as per various provisions of the Act and those dues are determined by the authorities who are listed under section 7A. What is required to be seen, to make the provisions of section 7-O, regarding the deposit applicable is to see whether the dues are determined by the authorities mentioned in Section 7A. Dues are determined as per various provisions of the Act and those dues are determined by the authorities who are listed under section 7A. What is required to be seen, to make the provisions of section 7-O, regarding the deposit applicable is to see whether the dues are determined by the authorities mentioned in Section 7A. If it can be said that damages imposed are also amount due from the employer and that such damages are levied after due notice to the employee and after holding an enquiry as contemplated under section 14-B of the Act and therefore they are dues determined by the Officers referred to in Section 7A of the Act then the employer cannot escape the requirement of depositing the amount due on filing the appeal. Therefore, it cannot be said that the requirement of deposit will not arise, if the employer is to challenge the order passed under Section 14-B of the Act is as much referable to the expression determination of the amount due under Section 7A(1)(b). For these reasons, I am unable to agree with the proposition laid down in Old Village Industries case. 12. Having differed from the proposition in the case of Old Village Industries, the matter was remanded by the court for reconsideration with respect to the quantum to be paid. 13. The facts in both the aforesaid cases are different. The Karnataka High court has treated the proceedings under section 14-A to be a continuation of the proceedings under section 7-A of the Act and on the basis of the aforesaid assumption has held that section 7-O would be applicable. 14. Referring to section 7-O the provisions envisages that no appeal of the employer will be entertained by the tribunal unless he makes deposit of certain amount of money as determined by an officer referred by section 7-A of the Act. In other words the determination has to be made by an officer as referred to under section 7-A. However, there is a difference between the initiation of a proceeding under sections 7-A and 7-C. Section 7-A is assessment order passed by an authority as described in sub-clause (1) i.e. 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. Although, the scope of the proceedings are different, both refer to contribution of the assessed amount to be paid by the establishment or an employer whether it is a proceeding under section 7-A or section 7-B i.e. review of the proceeding under section 7-A and a proceeding under section 7-C, it would amount to making an assessment of the provident fund payable by the establishment. Therefore, the words in section 7-O determined by an officer referred to in section 7-A would relate back to the assessment made under section 7-A. Proceeding under section 7-B and 7-C are nothing but a continuation of the proceeding under section 7-A of the act and as such this court agrees with the judgment of the Karnataka High Court and holds that the orders contained in Annexures 12 and 15 are in accordance with law. 15. This writ petition is accordingly dismissed.