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2016 DIGILAW 310 (GUJ)

Gitanjali Trust v. Regional P. F. Commissioner II

2016-02-09

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. The captioned petition, i.e. Special Civil Application No. 8883 of 2012, is listed in today's cause list alongwith Civil Application No. 9787 of 2014. 1.1 The said Civil Application No. 9787 of 2014 is listed at serial No. 8 in today's cause list and alongwith the Civil Application, the writ petition is also listed. 2. Mr. Shukla, learned advocate, submitted that Mr. S.D. Vasavada, learned advocate, was instructed to appear in the petition by the petitioner trust and subsequently, he was instructed to appear in the Civil Application filed by the trust. He further submitted that Mr. Vasavada, learned advocate, informed him that the petitioner has instructed him that he (i.e. Mr. Vasavada, learned advocate), has not to represent the petitioner in Special Civil Application No. 8883 of 2012 and that therefore, he would not appear as petitioner's advocate. Mr. Shukla, learned advocate, submitted that in view of the said information by Mr. Vasavada, learned advocate, and since he is instructed to appear on behalf of the petitioner - applicant in Civil Application No. 9787 of 2014, and Mr. D.C. Dave, learned Senior Counsel, is instructed to appear with him in respect of the writ petition, Mr. Dave, learned Senior Counsel and he would appear for the petitioner and conduct the matter. 3. During the pendency of the captioned petition, the petitioner preferred Civil Application No. 9787 of 2014 with the request that the respondent Provident Fund Commissioner be directed to refund the amount of Rs. 4 lakh withdrawn by the Provident Fund Commissioner from the petitioner's bank account and also to direct the respondents to not proceed further in connection with the orders which are impugned in the petition and to also direct the respondent to not insist for payment of the amount under heads of interest, penalty and damages. The petitioner also prayed in the said Civil Application, alternatively, that the date for early hearing may be fixed. Having regard to the fact that alongwith the Civil Application the petition is also listed in today's cause list, the Court considered it appropriate to hear and decide the petition and accordingly informed the learned Counsel that the alternative request is accepted and the petition will be heard today for final decision. Having regard to the fact that alongwith the Civil Application the petition is also listed in today's cause list, the Court considered it appropriate to hear and decide the petition and accordingly informed the learned Counsel that the alternative request is accepted and the petition will be heard today for final decision. 3.1 It is in pursuance of such development and the said facts that this petition is taken up for final hearing and appropriate order. 4. In present petition the petitioner has prayed, inter alia, that:- "22. (B) Your Lordships may be pleased to issue a writ of mandamus and/or a writ of certiorari or a writ in the nature of mandamus or a writ in nature of certiorari or any other appropriate writ, order or direction holding and declaring that the impugned orders dated 8.6.2012, 12.4.2012 and order dated 12.12.2011 are violative of Articles 14 and 19 (i)(g), without any evidence on record, jurisdiction and authority in law, arbitrary, irrational, discriminatory, illegal and unreasonable. (C) Your Lordships may be pleased to a writ of mandamus and/or a writ of certiorari or a writ in the nature of mandamus or a writ in nature of certiorari or any other appropriate writ, order or direction quashing and setting aside impugned orders dated 8.6.2012, 12.4.2012 and order dated 12.12.2011 and further be pleased to direct the authority to refund the amount already withdrew from the bank account of petitioner trust." 5. From the relief prayed for in present petition, it emerges that the petitioner is aggrieved by orders dated 8.6.2012, 12.4.2012 and 12.12.2011. The said orders are placed on record of present petition at pages 110, 115 and 120 of the petition. 6. When the impugned orders, more particularly the first order in the series of orders which are passed against the petitioner and impugned in present petition i.e. order dated 12.12.2011 is considered, it emerges that the said order is passed in pursuance of the inquiry conducted under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the "Act"). 7. By the said order the respondent commissioner directed the petitioner to pay due amount to the tune of Rs. 22,76,071/- towards Provident Fund Contribution. It has also emerged from the record that subsequent orders i.e. orders dated 8.6.2012, 12.4.2012 are consequential orders passed in furtherance of the order dated 12.12.2011. 7. By the said order the respondent commissioner directed the petitioner to pay due amount to the tune of Rs. 22,76,071/- towards Provident Fund Contribution. It has also emerged from the record that subsequent orders i.e. orders dated 8.6.2012, 12.4.2012 are consequential orders passed in furtherance of the order dated 12.12.2011. By the said orders the competent authority seems to have informed the petitioner that failure to deposit the amount will invite order/action of attachment of bank account. The respondent Provident Fund Commissioner opposed the petition by filing reply affidavit dated 24.8.2012. In the said reply affidavit the Regional Provident Fund Commissioner averred and stated that:-- "4. I say and submit that, without prejudice to the aforesaid contention, present petition deserves to be dismissed on the ground of the availability of the statutory alternative efficacious remedy U/s. 7I of the Employees Provident Fund and Misc. Provisions Act, 1952. Under the circumstances, it is humbly requested this Hon'ble High Court to dismiss the petition with exemplary cost. 5. I say and submit that present petition deserves to be dismissed on the ground of having made incorrect and distorted version of facts before this Hon'ble High Court on oath. Further, the petitioner has not approached the Hon'ble High Court with absolutely clean hands; therefore, petitioner is not entitled to any relief by way of invoking extra ordinary jurisdiction of this Hon'ble High Court. Under the circumstances, it is humbly requested this Hon'ble High Court to dismiss the petition with exemplary cost. 6. I say and submit that as a matter of fact entire quasi judicial proceedings envisaged U/s. 7A of the act was initiated on 14.8.2006 and prolonged approximately for 5 years mainly because non co-operation extended by the petitioner. Further, it is submitted 77 times aforesaid proceedings came to be adjourned out of which present petitioner has attended the inquiry for only 7 times, however, did not produce any records/evidence as called for. It is therefore most humbly requested to this Hon'ble High Court that no relief much less interim in nature be grated to the petitioner who has thoroughly ignored quasi judicial proceedings by not producing any documents summoned. 7. It is further submitted that neither till today nor in the proceedings petitioner has challenged the applicability of the act and thereby it would not be open for the petitioner to challenge the assessment of statutory dues. 7. It is further submitted that neither till today nor in the proceedings petitioner has challenged the applicability of the act and thereby it would not be open for the petitioner to challenge the assessment of statutory dues. Under the circumstances, it is humbly requested this Hon'ble High Court to dismiss the petition with exemplary cost. 8. It is pertinent to state that in fact an application dated 1.10.2014 came to be filed by the petitioner to the respondent/authority seeking coverage of the Act by producing list of 20 employees and thereby competent authority has vide order dated 8.12.2014 issued cod No. and further directed compliance of the act w.e.f. October 2004. It is pertinent to state that though the coverage of the act is voluntarily sought for, however, activity of the trust is schedule activity under the EPF & Misc. Provisions Act, 1952 having employed more than 19 employees, aforesaid code No. has been issued U/s. 1(3)(b) of the Act. 9. Despite direction issued to the petitioner-trust to comply the act w.e.f. October 2004, petitioner has not complied the provision of the act and thereby inquiry as envisaged U/s. 7A of the Act came to be initiated vide summons/notice dated 14.8.2006. However, petitioner has throughly ignored the inquiry and has not produced any records which have been called for by the authority for assessment of dues. Further, it is submitted that even Enforcement Officer was deputed to serve the notice upon the petitioner so as to secure the presence with necessary records, however, petitioner has willfully not produced anything and thus, the respondent/authority was left with no option, after having waited for quite a long time, but to assess the dues on the basis of record made available by the petitioner at the time of seeking coverage of act. Under the circumstances, petitioner cannot be allowed to contend that order passed by the respondent/authority is in violation of principles of natural justice. It is, therefore, submitted that present petition be dismissed with exemplary cost." 8. From the said fact it emerges that the proceedings under Section 7A were initiated against the petitioner in August 2006. The Regional Provident Fund Commissioner has claimed that the proceedings prolonged for almost 5 years because of non-corporation by the petitioner who did not attend the proceedings regularly and sought one after other adjournments. 9. From the said fact it emerges that the proceedings under Section 7A were initiated against the petitioner in August 2006. The Regional Provident Fund Commissioner has claimed that the proceedings prolonged for almost 5 years because of non-corporation by the petitioner who did not attend the proceedings regularly and sought one after other adjournments. 9. So as to support the said submission the respondent commissioner reiterated in his affidavit the fact recorded in the order that the proceedings had to be adjourned 77 times out of which the petitioner had attended the proceedings only on 7 occasions. The Regional Provident Fund Commissioner also alleged in the affidavit that the petitioner did not produce the record/document which were called for. 10. The petitioner filed its rejoinder/counter affidavit denying the statement in the reply affidavit filed by the Regional Provident Fund Commissioner. 11. Before proceedings further it is relevant to mention that from the record it appears that the petitioner has not paid the amount determined under order dated 12.12.2011 as a result of inquiry under Section 7A. It has also emerged from the record that any order granting interim relief is not passed by the Court until now i.e. for period about 3 years during which the petition has remained pending before this Court. 12. On 11.9.2012 the Court passed below quoted order:- "Heard Mr. Sachin D. Vasavada, learned advocate for the petitioner and Mr. Niral R. Mehta, learned advocate for the respondents. The learned advocate for the respondent authorities has raised a preliminary objection to the effect that there is an alternative statutory remedy available to the petitioner against the impugned award under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. It is submitted that the petitioner did not respond to several letters written by the authorities to provide comments/documents and make payment. However, as the letters have not been produced on the record of the case, it is prayed that time may be granted, in order to file the supplementary affidavit placing on the record of the same. List on 20.09.2012. The necessary affidavit be filed on, or before, the next date of hearing." 12.1 Subsequently on 7.11.2012 the Court passed another order which reads thus:- "Heard Mr. Sachin D. Vasavada, learned advocate for the petitioner and Mr. Niral R. Mehta, learned advocate for the respondents. Mr. List on 20.09.2012. The necessary affidavit be filed on, or before, the next date of hearing." 12.1 Subsequently on 7.11.2012 the Court passed another order which reads thus:- "Heard Mr. Sachin D. Vasavada, learned advocate for the petitioner and Mr. Niral R. Mehta, learned advocate for the respondents. Mr. Niral D. Mehta, learned advocate, has raised a preliminary objection that there is an alternative remedy available to the petitioner against the impugned order passed under Section 7 (A) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. Mr. Sachin D. Vasavada, learned advocate, states that the Court may not relegate the petitioner to availing of the alternative remedy and may entertain the petition, as the principles of natural justice have been violated while passing the impugned order. During the course of argument, learned advocate for the petitioner has taken this Court through the contents of the impugned order wherein it is mentioned that 77 adjournments were granted to the petitioner and during the proceedings Shri Mayank H. Soni (Advocate), Shri Prakash Chandra J. Soni, Shri M.S. Patel (Teacher), Shri G.V. Rathod (Advocate) appeared on behalf of the petitioner establishment and sufficient opportunity was granted. The impugned order also mentions that no record was produced by the petitioner and that the petitioner was intimated about ad-hoc settlement and asked to respond within 10 days which it did not. Mr. Sachin Vasavada, learned advocate, states that it is not the first assessment that the petitioner is talking about but it is the second ad-hoc assessment order that has been passed by the Assessing Officer on which the petitioner was not heard. Issue Rule. The preliminary objection raised by the petitioner shall be decided at the time of final hearing of the petition." 12.2 At the time of passing the said order also any interim relief is not granted by the Court. 13. As mentioned herein above earlier, during pendency of the captioned petition, the petitioner filed application i.e. Civil Application No. 9787 of 2014. The said application is disposed of by this Court on 9.2.2016. 14. From the order dated 7.11.2012 it emerges that at that stage also the respondent Commissioner had raised preliminary objection against the maintainability of the petition on the ground that statutory alternative remedy as provided under Section 7-I of the Act is available to the petitioner against the impugned order. 15. 14. From the order dated 7.11.2012 it emerges that at that stage also the respondent Commissioner had raised preliminary objection against the maintainability of the petition on the ground that statutory alternative remedy as provided under Section 7-I of the Act is available to the petitioner against the impugned order. 15. It is also pertinent that in the order dated 7.11.2012 the Court specifically observed that preliminary objection raised by the petitioner shall be considered at the time of final hearing of the petition. Meaning thereby the Court kept alive the preliminary objection for consideration at the time of final hearing of the petition. Therefore, now when the petition is taken up for final hearing, the Court is required to, rather obliged to, consider and decide the said preliminary objection against the maintainability of the petition. 16. As mentioned earlier the first order in the series of 3 orders i.e. order dated 12.12.2011 passed by the respondent authority is passed in the proceedings instituted and conducted under Section 7A of the Act. 17. Section 7-I of the Act provides remedy in form of Appeal to the tribunal against orders passed by authority under the Act. The said Section 7-I of the Act reads thus:-- "7-I Appeals to the 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." 17.1 Thus, the statutory remedy against the order passed in the proceeding under Section 7A is available to the petitioner. 18. Besides this, when the contentions raised by the petitioner against impugned order are prima facie considered it becomes clear that the dispute raised in present petition involves several disputed questions and issues. Such disputed questions or disputed facts can be effectively and appropriately adjudicated and examined by statutory authority. 18. Besides this, when the contentions raised by the petitioner against impugned order are prima facie considered it becomes clear that the dispute raised in present petition involves several disputed questions and issues. Such disputed questions or disputed facts can be effectively and appropriately adjudicated and examined by statutory authority. In view of the fact that the dispute involved in the petition raises several disputed question of fact and in view of the fact that the Act provides for statutory alternative remedy and in view of the fact that the preliminary objection raised against the maintainability of the petition was raised by the respondent authority at the outset, this Court is of the view that the petition does not deserve to be entertained and the petitioner deserves to be relegated to the statutory alternative remedy. Therefore, following order is passed:- 19. Having regard to the above mentioned aspects and the provisions under the Act, the petition is not entertained and the petitioner is relegated to the statutory alternative remedy. It is clarified that the Court, for the aforesaid reasons has not entered into merits of the controversy, raised by the petitioner against the impugned order and that therefore present order shall not be construed as expression of Court's view or opinion on merits with regard to the petitioner's dispute and grievance. 19.1 The petition is disposed of with aforesaid limited ground of statutory alternative remedy. 20. In view of the submission and request by learned advocate for the petitioner it is clarified that it will be open to the petitioner to file appropriate application, along with the appeal with the request to learned tribunal to condone delay. If such application is filed the learned tribunal will consider and decide the same in accordance with law. 20.1 Learned advocate for the petitioner submitted that the petitioner would bring to the notice of the Court that the petition against orders dated. 8.6.2012, 12.4.2012 and 12.12.2011 was pending before the Court till 9.2.2016 20.2 The learned tribunal will consider such application on merits and in accordance with law and pass appropriate order on merits, as may be considered appropriate. In this context it is clarified that this Court has not expressed any opinion with regard to the time element and limitation applicable to the case in light of the provisions of the Act. In this context it is clarified that this Court has not expressed any opinion with regard to the time element and limitation applicable to the case in light of the provisions of the Act. 20.3 The application will be decided on its own merits independently by learned tribunal. It is further clarified that all contention for both sides are open and it will be permissible to the petitioner as well as the respondent to raise all such contention available in accordance with law. With the aforesaid clarifications and observations the petition is disposed of. Rule is discharged.