IMPORTANT POINTS
Determination of interest u/s 7Q I done independently is not appealable; however, the employer would be entitled to an opportunity to file objection.

JUDGMENT

Dipak Misra, J.:-Leave granted.

2. This appeal is directed against the judgment and order dated 19.12.2011 passed by the High Court of Judicature at Madras in W.A. No. 2230 of 2011 whereby the Division Bench has concurred with the judgment and order dated 21.4.2011 passed in W.P. No. 7046 of 2008 by the learned single Judge holding that the order passed by the Assistant Provident Fund Commissioner under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“for brevity “the Act”) requiring the appellant to remit a sum of Rs.94,27,334/-towards interest under Section 7Q of the Act for belated remittances, was to be assailed in appeal before the Employees’ Provident Funds Appellate Tribunal (for short “the tribunal”) and, therefore, it was appropriate on the part of the appellant to take recourse to the alternative remedy and not to approach the High Court under Article 226 of the Constitution of India.

3. The facts giving rise to the present appeal, bereft of unnecessary details, are that the appellant-company has a textile factory at Kallakurichi and it was established in the year 1964 and with passage of time it took steps for modernization but it suffered a setback in the year 1997 due to slump in the cotton industry affecting the industrial base in South India. The financial constraints compelled the company to make a reference to the Board for Industrial and Financial Reconstruction (BIFR) under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 and the BIFR by order dated 4.5.1999 declared the appellant-company as a sick industrial company and appointed Industrial Development Bank of India (IDBI) as the Operating Agency. Because of the prevalent situation, the appellant-company defaulted in making contributions towards the Provident Fund and delay occurred in remitting the dues under the Act. On 3.10.2007, the appellant had paid a sum of Rs.83,01,037.80 (Rupees eighty three lacs one thousand thirty seven and eighty paise) being arrears of the Provident Fund contribution to the Regional Provident Fund Commissioner, the 1st respondent herein. A letter was also sent by the company stating that the appellant-company had become a sick industry and a scheme for rehabilitation of the company had been submitted to the BIFR and the same was pending consideration. On 23.10.2007, the Assistant provident Fund Commissioner, Trichy, the second respondent herein, issued a demand requiring the appellant to deposit a sum of Rs.94,27,334/-towards interest under Section 7Q of the Act for belated remittances. On receipt of the said letter the appellant replied that the report stated to have been annexed with the calculation had not been sent along with the notice and the same may be provided to it to reconcile the accounts. In the meantime, certain proceedings went on before the BIFR and, eventually, a joint meeting was held between the Operating Agency, the company and the employees of the establishment and it was agreed that the amount due towards the Provident Fund shall be paid in a phased manner. On 3.3.2008, an order came to be passed under Section 8F of the Act demanding the amount of interest and an order was passed by the Assistant Provident Fund Commissioner taking certain coercive measures to realize the amount.

4. Being grieved by the aforesaid action the appellant approached the High Court in WP No. 7046 of 2008. The learned single Judge, by order dated 25.3.2008, granted an interim stay subject to the appellant’s depositing 25% of the interest amount within 10 days and in pursuance of the said order the appellant deposited Rs.34,00,000/-before the Competent Authority under the Act. When the writ petition came up for hearing on 21.4.2011, the learned single Judge came to hold that it was appropriate to approach the tribunal under Section 7I of the Act and, accordingly, dismissed the writ petition.

5. The said order of the learned single Judge was assailed before the Division Be