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2016 DIGILAW 9 (TRI)

Rakshakali Industries v. Union of India

2016-01-14

S.C.DAS

body2016
JUDGMENT : By filing this writ petition the petitioners challenged order dated 21.07.2010(Annexure-13 to the writ petition) and order dated 25.08.2010(Annexure-14 to the writ petition) issued by the Regional/Assistant Provident Fund Commissioner in a proceeding under Section 7A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952(hereinafter mentioned as EPF & MP Act). 2. Heard learned senior counsel, Mr. A.K. Bhowmik, assisted by learned counsel, Ms. M. Choudhury for the petitioners and learned CGC, Mr. A. Lodh for respondent Nos.1 to 3. No representation on behalf of respondent Nos.4 and 5. 3. Fact in short, necessary for disposal of this writ petition is that petitioner No.1, M/s Rakshakali Industries is a business firm consisting of two partners, namely Manmohan Paul and Amar Paul and the firm is carrying on the business/trade as traders. The firm was constituted in the year 1975-76. There is another firm, namely M/s Somnath Enterprise consisting of three partners, namely Manmohan Paul, Dipti Paul and Swarup Kanti Dey established on 01.04.1988 and that firm was also dealing with the business/trade. Respondent No.2, the Regional/Assistant Provident Fund Commissioner passed an order in due course on 08.08.2005 that there were managerial and functional integrity in respect of both the firms, namely M/s Rakshakali Industries and M/s Somnath Enterprise and therefore held— “Considering entire affairs of the case and keeping all aspects of the case in mind, I, Sri K.B. Ghosh Dastider, Assistant Provident Fund Commissioner, S.R.O. Agartala, by virtue of power conferred to me u/s 7(A)(a) of the Act decide the applicability dispute by pronouncing an order to the effect that the coverage Notice issued under Notice No.SRO/TR/AS/2479/Enf/ Cov/7305-7307 dated 31.03.2003 making the Act applicable provisionally w.e.f. 21.03.2003 u/s 1(3)(b) of the Act under the schedule head ‘Trading and commercial” stands correct.” 4. The said order dated 08.08.2005 was challenged by petitioner No.1 before the Employees’ Provident Fund Appellate Tribunal, New Delhi by filing ATA No.913(2)/2005. The Tribunal by order dated 10.02.2010(Annexure-3 to the writ petition) disposed the appeal filed by petitioner No.1 and thereby set aside order dated 08.08.2005 passed by the Regional/Assistant Provident Fund Commissioner and directed as follows— “The PF authority did not conduct any inquiry to show that there was a financial and functional integrity between the two units. Hence ordered, the appeal is allowed. Hence ordered, the appeal is allowed. The matter is remanded back to the PF authority to determine existence of financial or managerial integrity between the two units and to dispose the matter as per law after giving the appellant the opportunity to place his case. The appellant is directed to appear before the respondent within 2 months from the date of this order and to cooperate with the inquiry. Copy of order be sent to both the parties. File be consigned to record room.” 5. Pursuant to the above order the Regional/Assistant Provident Fund Commissioner, i.e. respondent No.2 issued notice to the concerned parties and took up hearing of the case. Notices were given to the petitioners to submit certain documents. In due course, the respondent No.2 passed impugned order dated 21.07.2010 and 25.08.2010. It is an admitted position that the matter is now pending before respondent No.2. 6. It is submitted by learned senior counsel, Mr. Bhowmik that respondent No.2 is traveling beyond his jurisdiction and has asked the petitioners to submit irrelevant documents for the purpose of the proceedings. He has also submitted that M/s Rakshakali Industries and M/s Somnath Enterprise are two separate entities and separate business concern consisting of two partners and three partners respectively and only one of the partners, namely Manmohan Paul is common in both the firms but the respondent No.2 wrongly and illegally was trying to club both the firms with a view to bring it under the purview of EPF & MP Act. The documents which have been called by issuing notice dated 25.03.2010(Annexure-4) is simply with a view to harass the petitioners and nothing else. The orders dated 21.07.2010 and 25.08.2010 are simply not tenable and hence liable to be quashed. 7. On the other hand Mr. Lodh, learned CGC has submitted that the petitioner’s firm approached the appellate Tribunal and the appellate Tribunal directed respondent No.2 to make an inquiry in respect of financial and functional integrity between the two firms and for the purpose of inquiry, the respondent No.2 issued notice to submit required documents and to participate in the hearing. The matter is at the stage of inquiry. It is the absolute jurisdiction of the respondent No.2 under the EPF & MP Act to cause the inquiry and to pass an order according to law. The matter is at the stage of inquiry. It is the absolute jurisdiction of the respondent No.2 under the EPF & MP Act to cause the inquiry and to pass an order according to law. If the petitioners feel aggrieved by an order passed by the Provident Fund Commissioner the remedy is available as per the provisions of EPF & MP Act and no writ petition is maintainable. He has also submitted that the order passed by appellate Tribunal dated 10.02.2010 stands good and the Regional/Assistant Provident Fund Commissioner, i.e. respondent No.2 is bound to comply the order. The petitioners did not challenge that order of the appellate authority whereas causing hindrance in the inquiry to be made by the respondent No.2. 8. Admittedly, the present inquiry under Section 7A of the EPF & MP Act has been taken up by respondent No.2 in obedience to order of the appellate Tribunal dated 10.02.2010. I have meticulously gone through the impugned orders dated 21.07.2010 and 25.08.2010. It appears that both the orders are interlocutory orders passed by the respondent No.2 in course of inquiry as authorized by law. While making an inquiry under Section 7A of the Act the respondent No.2 is bound to examine relevant records and inspect both the firms concerned to ascertain as to whether there is financial or functional and managerial integrity between those two firms or not. Respondent No.2 issued notice to the petitioners to submit certain documents. Whether those documents were relevant or not is to be decided by the appropriate authority and this Court while exercising jurisdiction under Article 226 of the Constitution cannot decide relevancy of any documents called by the respondent No.2 for deciding financial or functional and managerial integrity of those two firms. Respondent No.2 is a statutory authority under the EPF & MP Act. If by an order passed by the respondent No.2 the petitioners feel aggrieved they may approach the appropriate forum according to law at the appropriate time. It has been submitted by learned senior counsel, Mr. Bhowmik that this Court has jurisdiction to see whether a Tribunal is functioning according to law or not. I find nothing to show in the impugned order dated 21.07.2010 and 25.08.2010 that the Tribunal acted beyond its jurisdiction and learned counsel also failed to show any provision which has been violated by the respondent No.2. Bhowmik that this Court has jurisdiction to see whether a Tribunal is functioning according to law or not. I find nothing to show in the impugned order dated 21.07.2010 and 25.08.2010 that the Tribunal acted beyond its jurisdiction and learned counsel also failed to show any provision which has been violated by the respondent No.2. The Judicial review in respect of an administrative action is permissible only to a limited extent where the administrative authority is found to have acted beyond jurisdiction and the action of the administrative authority is wholly and grossly in violation of the principles of natural justice or in violation of any provision of the Constitution or other statue and otherwise the High Court has no jurisdiction to interfere in the day to day ordinary functions of the administrative/statutory authority. The High Court cannot decide relevancy of a document in a writ petition in respect of a proceeding pending before the administrative authority under a Special Act. If any action is taken by the administrative authority grossly unjustified and contrary to the law of the land, definitely, the aggrieved party may approach a superior forum according to law. 9. It appears that the petitioners with a view to drag the inquiry filed the present writ petition without having any merit at all. The writ petition, therefore, stands dismissed with cost of Rs.5,000/-.