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2013 DIGILAW 3129 (ALL)

Trishul Enterprises v. Union of India and 2 Ors.

2013-12-20

ARVIND KUMAR TRIPATHI

body2013
Arvind Kumar Tripathi,J:- Supplementary affidavit filed today is taken on record. Heard learned counsel for the petitioner, Mr. A. Chaturvedi, learned counsel for the respondents and perused the record. 2. By means of present writ petition the prayer is to issue writ of certiorari quashing the impugned order dated 14.11.2013, annexure 16 to the writ petition, passed by the respondent no.3 with further prayer to issue writ of mandamus directing the respondents not to recover any amount from the petitioner on the basis of impugned order dated 14.11.2013 issued by the respondent no.3. 3. Learned counsel for the petitioner submitted that petitioner is a A class Government Contractor Firm with specialization in Horticulture, Agriculture, Sanitation, man power supply and engineering. The petitioner is a registered firm under Employees Provident Fund Organisation. On 22/30.7.2004 an order for recovery for a sum of Rs. 7,52,492/- was passed by the Assistant Provident Fund Commissioner under section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 for deposit of the contribution towards provident fund. The aforesaid order was challenged and the writ petition was disposed of on 5.9.2005 with the direction to pass a fresh order after giving full opportunity of hearing to the petitioner within two months and the petitioner was also directed to make payment of 50% of the demanded amount. In compliance of order a sum of Rs.3,76,250/- was deposit through a demand draft on 5.11.2005. Thereafter, after hearing the parties the liability was reduced to Rs.1,85,018/- for the period from October, 1999 to June, 2003. Total amount paid by the petitioner was a sum of Rs.3,76,250/- and Rs.25,377/- was also paid by chalan. Hence towards the liability of a sum of Rs.1,85,018/- the petitioner had already deposited a sum of Rs.4,01,627/-. The excess amount for a sum of Rs.2,16,609/- was deposited hence application had already been given by the petitioner. However, without considering the excess amount deposited by the petitioner, the order was passed by the respondent. Thereafter, writ petition no.46908 of 2013 was filed, which was disposed off on 4.9.2013 to consider the claim of the petitioner after giving opportunity of hearing and to pass a fresh order. However, without considering the excess amount deposited by the petitioner, the order was passed by the respondent. Thereafter, writ petition no.46908 of 2013 was filed, which was disposed off on 4.9.2013 to consider the claim of the petitioner after giving opportunity of hearing and to pass a fresh order. He further submitted that again the opportunity was not given to the petitioner, for hearing though the petitioner has received gate pass and he went there to appear, however, it was shown that petitioner failed to appear before the authority concerned. Again by ex-parte order his claim was rejected by impugned order dated 14.11.2013, annexure 16 to the writ petition. The respondent no.3 acted arbitrarily against the record and as such the impugned order is liable to be quashed. 4. Learned counsel for the respondents raised objection that repeatedly the writ petitions are being filed. However, before the authority concerned, repeatedly representative of the petitioner failed to appear on the date fixed by the respondent no.3. Twice the writ petition was disposed off with the direction by this Court, to reconsider the matter. Apart from that he has remedy of appeal against the order passed under section 14 (B) of the Provident Fund Act. As far as the order passed under section 7Q of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 is concerned, the order was passed under section 14-B and 7Q is consequential order with regard to the payment of interest. However, no appeal has been preferred and as such petitioner is not entitled for any relief. 5. Considered the submission of learned counsel for the parties. Twice the matter was remanded to the authority concerned and there is averment on behalf of petitioner that the excess amount for a sum of Rs.2,16,609/- was not adjusted. The version from the side of respondents is that inspite of opportunity given to the representative of the workers, the petitioner failed to appear, before the court concerned and as such whatever records were available on that basis rightly the order was passed. Apart from that there is right of appeal against the order passed under section 14 (B) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. Apart from that there is right of appeal against the order passed under section 14 (B) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. As far as order passed under section 7Q regarding the interest is concerned, that is consequential order on the basis of order passed under section 14(B) Employees Provident Fund and Miscellaneous Provisions Act, 1952. Hence if the excess amount has been deposited on behalf of petitioner, the same is required to be considered. If petitioner is adviced and he prefers appeal within two weeks from today, it is expected that same shall be considered on merit, as expeditiously as possible, in accordance with law, 6. Accordingly, present writ petition is finally disposed off. ________________