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2016 DIGILAW 207 (ORI)

Pradosh Kumar Patnaik v. State of Orissa

2016-03-15

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. 1. This writ petition is against the order dated 14.5.2012 passed U/s.7A of the Employees Provident Fund and Miscellaneous Provision Act, 1952 passed by the Asst. Provident Fund Commissioner, Orissa, Bhubaneswar (Annexure-12). 2. The brief facts of the case of the petitioners is that Kamala Nehru Women’s College is functioning at Unit-1, Bhubaneswar from the month of July, 1979, got recognition of the State Government as intermediate college in accordance with the provisions of Orissa Education Act, 1969 and declared as an Aided College by the State Government w.e.f. from the year 1984 within the meaning of Sec.3(b) of the Orissa Education Act, 1969. The petitioners institution since is not a minority institution, therefore comes within the purview of Orissa Education Act, Sec.27 of the Orissa Education Act prescribes the State Government to make rule for carrying out all or any of the purpose of the Act such as to regulate the establishment, recognition and management of private educational institution. After the institution has been declared as an Aided Educational Institution, the State Government as per the provision of Orissa Education (Recruitment and Conditions of Service of Teachers and members of the Staff of Aided Educational Institutions) Rules, 1974 provided that the employees of the aided institution shall draw their salary, dearness allowance and other allowances at par with their counterparts in the government educational institutions. The employees of the petitioners institution has also been brought into the purview of the Orissa (Aided Educational Institution Employees Retirement Benefit) Rules, 1981 which prescribes the grant of pension, gratuity and death-cum-retirement gratuity to the employees of the aided institution. The employees of the aided institution are also brought under the purview of General Provident Fund Scheme. The State Government has also enacted Orissa Aided Educational Institution Employees General Provident Fund Rules, 1983, a statutory rule covering the field of provident fund of the employees, which is directly under the control of the State Government. From all these facts it is evident that the employees of the aided institutions are under the control of the State Government and also guided in accordance with the statutory rules for the said purpose. From all these facts it is evident that the employees of the aided institutions are under the control of the State Government and also guided in accordance with the statutory rules for the said purpose. The institution was functioning smoothly but a notice was served by opposite party no.4 bearing no.7981 dated 23.3.2011 directing the Kamala Nehru Women’s College, Unit-1, Bhubaneswar to pay the Employees Provident Fund and allied dues in respect of the EPF contribution of the employees who receive block grant and was not deposited with the opposite party no.3 establishment. According to the petitioner establishment the college in question on being declared as an aided college from 1984 was depositing the EPF contribution of such employees who were not coming within the purview of grant-in-aid scheme in accordance with the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as The Act 1952). According to the petitioner the EPF contribution is not applicable to all the employees working in the establishment and as such the notice issued by the opposite parties is absolutely without any application of mind. The opposite parties without considering the fact that even the provision of the Act, 1952 is not applicable has issued the notice and proceeded under the provision of Sec.7A of the Act, 1952. According to the petitioner before passing the order U/s.7A notice has not been issued to the proper party rather the notice has been issued to the Kamala Nehru Women’s College while in view of provision of Sec.7A of the Education Act which deals regarding the provision of Managing Committee or Governing Body of the Educational institution read with Sec.25 of Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991, Rule 29, 30 and 32 of the said Rule which deals with the power of the Secretary who is the main functionary to communicate any business to the governing body and as such since the notice has not been issued in the name of the Secretary or the governing body rather it has been issued in the name of the institution, i.e. Kamala Nehru Women’s College, hence notice cannot be said to be sufficient compliance before passing an order u/s.7A as because the provision as contained in Sec.7A(3) speaks that no order shall be made under Sub Sec.1 unless the employer concerned is given reasonable opportunity of representing his case. According to the petitioner the employer in the context of this case is the governing body hence the notice ought to have been issued in the name of the governing body being an employer but the notice has been issued in the name of the establishment, hence it cannot be said that there is sufficient compliance of the provision of Sec.7A(3) of the Act 1952 hence the order passed by the authority U/s.7A is in violation of the principle of natural justice. It has been contended that the petitioners institution is also exempted under the provision of Sec.16(1)(b) as because the institution in question since been governed under the various statutory provision enacted by the State Government providing the various benefits like contributory provident fund or other pension schemes, hence the institution will come under the purview of the exemption clause as provided under Sec.16(1)(b) but the authorities while passing the order U/s.7A has not taken into consideration this aspect of the matter. It has been contended that the authorities have calculated the amount for depositing the PF account even by making calculation of such an employee who is getting benefit from the grant-in-aid from the Government and as such the authorities have committed gross illegality and if proper notice would have been issued to the employer, this point could have been brought to the notice of the competent authority but in absence thereof all the facts have not been brought to the notice of the authority concerned and hence the order passed by the authority directing the petitioner to deposit the amount even with respect to the employees who are being paid from the Government Exchequer is illegal. Learned Sr. counsel appearing for the petitioner has relied upon the judgment rendered in the case of Kala Vikash Kendra, Cuttack Vs. Regional Provident Fund Commissioner and others passed in W.P. (C) No. 8577 of 2008 (unreported) and order passed in O.J.C. No. 3266 of 1991 rendered in the case of Rourkela Education Development Society Vs. Regional Provident Fund Commissioner and others (unreported). 3. Regional Provident Fund Commissioner and others passed in W.P. (C) No. 8577 of 2008 (unreported) and order passed in O.J.C. No. 3266 of 1991 rendered in the case of Rourkela Education Development Society Vs. Regional Provident Fund Commissioner and others (unreported). 3. Per contra opposite parties after putting their appearance has contended on the basis of the averment made in the counter affidavit raising the issue of alternative forum of appeal as provided U/s.7-I of the Act 1952 and has submitted that since the petitioner is raising factual aspect, this Court sitting under Art.226 of the Constitution of India may not determine the factual aspect otherwise it will be said that this Court has acted as an appellate court sitting under Art.226 of the Constitution of India, moreover, since there is forum of appeal, the petitioner ought to have resorted to that statutory alternative remedy available under the statute but the petitioner has directly approached to this Court invoking the extraordinary jurisdiction. It has been contended regarding the applicability of the Act, the petitioner has never questioned the applicability of the Act at any point of time even before the authority at the time of deciding the issue U/s.7A of the Act 1952 and it is for the first time before the writ court this point is raised and as such this cannot be entertained. It has been contended that regarding contribution of the regular employee who are getting grant-in-aid from the government or the block grant, this aspect of the matter has well been dealt by the authority while adjudicating the issue U/s.7A of the Act 1952, moreover even if the petitioner is aggrieved with the determination of the issue by the competent authority U/s.7A, since this pertains to determination of factual aspect, it would be better for the petitioner to avail the alternative remedy of appeal as provided under Sec.7-I of the Act, 1952 which confers same power upon the appellate tribunal as has been conferred under the original authority U/s.7A of the Act, 1952. It has been contended that the notice has properly been issued in favour of the establishment since according to the provision of Sec.1 of the Act 1952 the requirement is to issue notice to the establishment, since in view of the provision as contained in Sec.1 of the Act, 1952 the applicability of the Act is for every establishment, here the establishment is the Kamala Nehru Women’s College, the authorities have issued notice to Kamala Nehru Women’s College as would be evident from Annexure-12 which is a notice issued in the name of M/s. Kamala Nehru Women’s College and in pursuance to the said notice the establishment has appeared through is counsel, namely, Sri Dillip Dashasharma who has filed detailed note of submission, the documents and represented the case of the establishment and as such it cannot be said that the notice has not been served to the proper party. It has been contended that the order passed u/s.7A itself speaks that the establishment has been represented by his counsel, namely, Sri Dillip Dashasharma who has filled detailed notes of submission, submitted relevant documents and pleaded for the establishment and as such sufficient opportunity has been provided to the establishment who is an employer as would be apparent from the definition of Employer as provided U/s.2(e) of the Act, 1952, hence it is wrong to say that there is non-compliance of the provision of Sec.7A(3) of the Act 1952. It has been contended that the establishment Kamala Nehru Women’s College has been brought under the purview of the Act as an educational institution specified in the notification of Government of India in the Ministry of Labour No.S.O.986 dated 19.2.1982 published in the Part-II, Sec.2, Sub-Section (II) of the Gazette of India Establishment of India dated 6.3.2012. It has further been contended that as per Sec.16(1)(c) of the Act, the provision of the Act is not applicable where the employees of establishment set up under State or Central Act are enjoying the benefit of CPF and old age pensionary benefits in accordance with any scheme or rule framed by the said Central Government for the benefit of the employees. The private educational institutions set up in the State of Orissa where different category of employees are employed those are not in enjoyment of CPF or old age benefits as stated in Sec.16 of the Act. The private educational institutions set up in the State of Orissa where different category of employees are employed those are not in enjoyment of CPF or old age benefits as stated in Sec.16 of the Act. Private educational institutions come under grant-in-aid scheme of the Government by providing Government Pensionary benefits to the employees in the phased manner. Therefore, unless and until employees do not come under the grant-in-aid scheme with G.P.F. and Pensionary benefits, the provision of E.P.F. and M.P. Act, 1952 and the scheme framed thereunder continued to be applied to the employees. It has been contended that during enquiry under Sec.7A of the Act the establishment participated and had never placed any material on record where EPF and allied dues are not to be determined or category of person those who are in enjoyment of G.P.F. benefits. It has further been contended that the petitioner has admitted that they are depositing contributions in respect of such employees who are not coming under the purview of grant-in-aid scheme but while doing so they are depriving the employees who are governed by Block Grant Scheme and not in enjoyment of retrial benefits like G.P.F. and Pensionary benefits. It has been contended that the 27 employees receiving salary in the shape of Block Grant w.e.f. 01.02.2009 shall not automatically be excluded from their continued membership of EPF benefits until and unless they are declared G.P.F. members with Pensionary benefits and for this reason the opposite party no.3 asked the petitioner to pay the EPF contribution for 27 employees those who are under Block Grant scheme as they are not in enjoyment of Contributory Provident Fund / G.P.F. and Old Age Pension and accordingly assessment has been done, hence there is no illegality in the order impugned. Learned counsel appearing for the opposite parties relied upon the unreported judgment regarding non-maintainability of the writ petition on the ground of availability of alternative remedy, he placed reliance upon the judgment passed in W.P.(C) No.7836 of 2011 which has been affirmed by the Division Bench of this Court in W.A. No.368 of 2011. In response to the contention, learned Sr. In response to the contention, learned Sr. Counsel appearing for the petitioner has submitted that since there is violation of principle of natural justice, merely on the ground of availability of alternative remedy, the writ petition cannot be thrown out and in this respect he has relied upon the judgments rendered in the case of Mariamma Roy Vs. Indian Bank and Ors. 2009 AIR SCW 654 and Committee of Management & Arts. Vs. Vice Chancellor & Ors. 2009 AIR SCW 398. 4. Heard the learned counsels for the parties and perused the documents on record. Before coming to the merits of the case it would be relevant to refer certain provision of the Act, 1952. Sec.1 of the Act, 1952 is being reproduced herein below:- “1. Short title, extent and application.- (1) This Act may be called the Employees Provident Funds and Miscellaneous Provisions Act, 1952. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) Subject to the provisions contained in section 16, it applies:- (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed. (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify, in this behalf: Provided that the Central Government may, after giving not less than two months notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification. (4) Notwithstanding anything contained in sub-section 3 of this section or-sub-section 1 of section16, where it appears to the Central Provident Fund Commissioner, whether on an application made to him in this behalf or otherwise, that the employer and the majority of employees in relation to any establishment have agreed that the provisions of this Act should be made applicable to the establishment, he may, by notification in the Official Gazette, apply the provisions of this Act to that establishment on and from the date of such agreement or from any subsequent date specified in such agreement. (5) An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty.” From perusal of the provision as contained in Sec.1 of the Act, 1952 it is evident that the Act, 1952 applies to every establishment which is a factory engaged in any industry specified in Schedule I. Employer has been defined U/s.2(e) of the Act, 1952 which speaks as follows: (e) “employer” means- (i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause f of sub-section 1 of section 7 of the Factories Act, 1948 (63 of 1948), the person so named; (ii) in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent; From perusal of these two provisions it is evident that employer denotes the establishment. Section 7A speaks regarding determination of money dues from the employees which is being reproduced herein below:- “[7A. Determination of moneys due from employers. Section 7A speaks regarding determination of money dues from the employees which is being reproduced herein below:- “[7A. 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; (b) Determine the amount due from any employer under any provision 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 purposes 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, 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 if 1860). (3) No order shall be made under sub-section (1), unless [the employer concerned] is given a reasonable opportunity of representing his case. (3) No order shall be made under sub-section (1), unless [the employer concerned] is given a reasonable opportunity of representing his case. [(3A) 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 asked his earlier order and shall appoint a date of 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. Explanation.- Where an appeal has been preferred under this Act against an order passed ex-parte and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this sub-section for setting aside the ex-parte order. (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) 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]. Sec.7-I of the Act, 1952 contains the power of Appeal which is being reproduced herein below:- “7-I. Appeals to Tribunal-(1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub-section (4) of section 1, or section 3, or sub-section (1) of section 7A, or section 7B [except an order rejecting an application for review referred to in sub-section (5) thereof], or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order. (2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.]” Learned Sr. Counsel appearing for the petitioner has vehemently argued out his case submitting that there is violation of principle of natural justice and as such the provision of alternative remedy of appeal will not come in the way in invoking the extraordinary jurisdiction of this court as conferred under Art.226 of the Constitution of India. There is no dispute about the fact that alternative remedy is not a bar in entertaining writ petition filed for enforcement of any of the fundamental rights or where there is violation of principle of natural justice or where the order under challenge is without jurisdiction or virus of the statute is under challenge. Reference in this regard may be made to the judgment of Hon’ble Apex Court in the case of M/s. Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, AIR 1969 SC 556 and the judgment rendered by Hon’ble Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 wherein at paragraph 20 it has been held that writ can be entertained by High Court sitting under Art.226 of the Constitution of India if the order is without jurisdiction or there is violation of fundamental right or the order being passed in violation of principle of natural justice. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 wherein at paragraph 20 it has been held that writ can be entertained by High Court sitting under Art.226 of the Constitution of India if the order is without jurisdiction or there is violation of fundamental right or the order being passed in violation of principle of natural justice. In the context of this proposition it is to be seen as to whether the order passed by the authority U/s.7A is in violation of principle of natural justice as has been contended by learned Senior Counsel for the petitioner since it has been submitted that notice has not been properly issued in the name of the employer and according to the learned Sr. Counsel representing the petitioner that the employer in this case would be the governing body and to establish his argument he has relied upon the various provisions of Education Act such as Sec.7A of the Education Act which deals regarding the provision of Managing Committee or Governing Body of the Educational institution read with Sec.25 of Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991, Rule 29, 30 and 32 of the said Rule. By referring to these statutory provisions it has been submitted that these rules suggest that the governing body is the over all in charge of the college in question and Secretary is the main functionary to communicate each and every business of the institution to the governing body, hence notice ought to have been issued to the governing body or the Secretary. But notice has been issued in the name of the institution hence no sufficient opportunity has been provided before passing an order as provided U/s.7A of the Act, 1952 which is not in consonance with the provision as contained in Se.7A(3) of the Act, 1952. In order to scrutinize this argument it is necessary to analyze the order passed by the authority U/s.7A. In order to scrutinize this argument it is necessary to analyze the order passed by the authority U/s.7A. From its perusal it is evident that notice has been issued to M/s.Kamala Nehru Women’s College which is an establishment and in view of the requirement of the provision of Sec.1 of the Act, 1952 which is referred herein above the Act is applicable to the establishment and not to the governing body or any functionary of the establishment and the establishment being an employer has been noticed by the authority while issuing notice U/s.7A of the Act, 1952 as would be evident from the order impugned wherein one Sri Dillip Dashasharma, Advocate has appeared representing the establishment. It further transpires from the order that Sri Dashsharma, Advocate appeared, submitted various documents, time petitions has been filed, written notes of submission has been filed, all these things suggest that the notice has been issued to the proper party who has been represented through his learned Advocate and the order has been passed after being assisted by the Principal since all the documents which has been submitted by the learned Advocate concerned were submitted by due endorsement of the Principal. Hence the submission of the learned Sr. Counsel for the petitioner cannot be accepted that the notice has not been issued to the proper party. Moreover, this point has never been raised before the authority rather when the notice has been served, the establishment in question has put its appearance before the competent authority, submitted to its jurisdiction without any objection, provided assistance reluctantly but it does not mean that appropriate opportunity has not been provided to the establishment in question rather after going through the order impugned it is to be held that the management has been provided all adequate opportunity of being heard, it is also to be seen from the impugned order that the management has not co-operated with all sincerity in adjudicating the matter and for that reason even the authority has gone to the extent of attaching the Bank Account, however, subsequently the same was released. In view of these situations it is to be held herein that sufficient opportunity has been provided to the establishment in question and as such it cannot be said that there is violation of principle of natural justice. Learned Sr. In view of these situations it is to be held herein that sufficient opportunity has been provided to the establishment in question and as such it cannot be said that there is violation of principle of natural justice. Learned Sr. Counsel representing the petitioner has taken the point of violation of principle of natural justice in order to maintain this writ petition even though there is provision of alternative remedy under the statute but there is no violation of principle of natural justice, which is being held herein on the basis of discussion made above. It is well settled proposition of law that when the statute has created provision of Review or Appeal, the High Court should not interfere assuming the power of appeal. However there is no straight jacket formula in this regard, rather the same is the self-imposed restriction and if there is any violation of principle of natural justice or violation of fundamental right or the virus has been challenged or the order is without any jurisdiction then High Court can interfere with an order even though there is alternative remedy of appeal sitting under Art.226 of the Constitution of India. But none of these conditions are available after going through the facts and circumstances of this case and as such it would not be proper to adjudicate the issued by assuming the power of appeal sitting under Art.226 of the Constitution of India. So far as the judgment referred by learned Sr. Counsel for the petitioner passed in W.P.(C) No.8577 of 2008, this court has passed an order entertaining the writ petition when it has found that the order is without any jurisdiction, hence the same is not applicable in the facts and circumstances of this case. So far as the order passed in O.J.C. No.3266 of 191, the issue pertains in that case is of a society while the facts of this case pertains to a college and further the issue regarding availability of alternative remedy has not been raised in this case hence the same is not applicable in the facts and circumstance of this case. In this connection the judgment rendered in case of Nivedita Sharma Vs. In this connection the judgment rendered in case of Nivedita Sharma Vs. Cellular Operators Association of India and Others, (2011) 14 SCC 337 needs to be referred which has been rendered in the context of Consumer Protection Act, 1986 and their Lordships after discussing various judgments of Hon’ble Supreme Court rendered in the case of Thansingh Nathmal Vs. Supdt. of Taxes, AIR 1964 SC 1419 wherein their Lordships at paragraph 7 has been pleased to hold as follows: “7…..The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the high Court normally will not permit by entertaining a petition under Art.226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” In the case of Titaghur Paper Mills Co. Ltd. Vs. State of Orissa, (1983) 2 SCC 433 wherein their Lordships at paragraph 11 has been pleased to hold as follows: “11…..It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Wills, J. in Wolverhampton New Waterworks Co. Vs. Hawkesford, (1859) 6 CBNS 336 in the following passage: (ER p.495) There are three classes of cases in which a liability may be established founded upon a statute….. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it….. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago Vs. Gordon Grant and Co. Ltd. 1935 AC 532 (PC) and Secy. of State V. Mask and Co., (1939-40) 67 IA 222. It has also been held to be equally applicable to enforcement of rights, and has been followed by this court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.” Yet in another case rendered in case of Maftalal Industries Ltd. Vs. Union of India, (1997) 5 SCC 536 wherein their Lordships have been pleased to hold in paragraph 77 as follows:- “77….So far as the jurisdiction of the High Court under Article 226 – or for that matter, the jurisdiction of this Court under Article 32 – is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Art.226 / Art.32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.” After considering all these ratios Hon’ble Apex Court in case of Nibedita Sharma (supra) has been pleased to hold that if the statute provides any alternative remedy of appeal, it has to be followed in its strict sense, subject to some exceptions as has been held in the judgment rendered in the case of Baburam Prakash Chandra Maheshwari (supra) and Whirlpool Corporation (supra). But these exceptions do not exist in the facts of this case. Hence the ratio laid down in that case is not applicable in the present case. The petitioner has raised so many factual aspects regarding non-consideration of provision of Sec.16, Sub-Sec.1(b) of the Act, 1952, wrong calculation of the total liability fixed by the authority while passing the order U/s.7A of the Act, 1952, calculating the P.F. dues even of the regular employees who are getting grant-in-aid directly from the Government Exchequers. The petitioner has raised so many factual aspects regarding non-consideration of provision of Sec.16, Sub-Sec.1(b) of the Act, 1952, wrong calculation of the total liability fixed by the authority while passing the order U/s.7A of the Act, 1952, calculating the P.F. dues even of the regular employees who are getting grant-in-aid directly from the Government Exchequers. While on the other hand learned counsel for opposite party has disputed this aspect of the matter and has submitted that the P.F. dues of such employees who have been paid Block Grant and not covered under any of the scheme has been taken into consideration and their amount has been calculated. All these facts pertains to determination of issue on the basis of appreciation of facts as well as of law with all supporting document which can be considered by the appellate authority in exercise of the appellate power while considering the grievance of the appellant. More over this court in exercise of judicial review is only required to see whether the decision making process is proper or not and not to decide grievance of the appellant in the nature of appeal. In these circumstances this court refrains from interfering into the merits of the dispute which involves determination of question of facts involving liability of petitioners establishment against the demand raised U/s.7-A and 7-Q of the Act, 1952 as well as applicability of the Act. However, it will open to the petitioner to approach before the appellate forum under the relevant provision of the Act, 1952. Accordingly, the writ petition stand disposed of. The interim order stands vacated.