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2007 Supreme(Cal) 843
High Court of Judicature at Calcutta
THE HONOURABLE CHIEF JUSTICE MR. S.S. NIJJAR & THE HONOURABLE MR. JUSTICE TAPEN SEN
Assistant P.F. Commissioners, Employees Provident Fund Organization
Versus
Pawankumar Agarwala & Others
A.S.T. No. 1825 of 2007
Decided on : 03-12-2007
For the Appellant:Kalyan Kr. Bandyopadhyay, Mihir Kundu, Advocates. For the Respondents:Sakti Nath Mukherjee, Swapan Kumar Dutta, Advocates.
The High Court should not entertain a writ petition when an adequate alternative remedy of appeal is provided in the statute itself, unless exceptional circumstances are made out.
Headnote:
EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 - SECTIONS 7-A, 7-B, 7-D - CONSTITUTION OF INDIA, ARTICLE 226 - WRIT PETITION - MAINTAINABILITY - ALTERNATIVE REMEDY OF APPEAL - JURISDICTION - SHOW-CAUSE NOTICE - LEGAL RIGHT INFRINGEMENT - EMPLOYEES' PROVIDENT FUNDS APPELLATE TRIBUNAL - JURISDICTION - OBSERVATIONS OF HIGH COURT - EFFECT - CONDITIONAL ORDER - DELAY - CONDONATION OF DELAY - URGENT XEROX CERTIFIED COPY.
Fact of the Case:
Writ petition challenging various orders passed by the Assistant Provident Fund Commissioner under the Employees' Provident Funds (Miscellaneous Provisions Act, 1952) directing the petitioners to pay the balance amount within fifteen days of the receipt of the orders, failing which recovery action and proceedings for prosecution as provided under the Act and the Scheme framed thereunder and Section 406/409 of the Indian Penal Code shall be initiated without any further notice.
Finding of the Court:
1. The writ petition is not maintainable in view of the alternative remedy of appeal available to the petitioners under Section 7-D of the Act. 2. The observations made by the learned single Judge on the merits of the case would not survive and will be treated to be of no legal consequence. 3. The Appellate Tribunal will decide the appeal on its own merits unfettered by any earlier observations made by the High Court.
Issues: 1. Whether the writ petition is maintainable in view of the alternative remedy of appeal available to the petitioners under Section 7-D of the Act? 2. Whether the observations made by the learned single Judge on the merits of the case would survive and will be treated to be of legal consequence? 3. Whether the Appellate Tribunal will decide the appeal on its own merits unfettered by any earlier observations made by the High Court?
Ratio Decidendi: 1. The High Court ought not to entertain a writ petition under Article 226/227 of the Constitution of India when an adequate alternative remedy of appeal is provided in the statute itself. 2. A writ petition may be entertained only to correct an error apparent on the face of the record or grave errors of jurisdiction. 3. A writ petition is not maintainable on the pleaded case of the petitioners to the effect that the orders issued under Section 7-A were in the nature of show cause notices. 4. The observations made by the High Court on the merits of the impugned Section 7-A order would not survive any further and will be treated to be of no legal consequence.
Final Decision: The appeal is allowed. The order of the learned single Judge is set aside. The petitioner is relegated to the remedy of appeal before the Employees' Provident Funds Appellate Tribunal. The appeal shall be decided by the Tribunal in accordance with law without making any reference to the observations made by the learned single Judge in the order dated September 18, 2007. The writ petition is dismissed.
This appeal has been filed by the Assistant Provident Fund Commissioner challenging the order passed by the learned single Judge dated September 18, 2007 in W.P. No. 12455 (W)/2007. The respondent Nos. 1 and 2 filed the aforesaid writ petition challenging various orders passed by the Assistant Provident Fund Commissioner under the Employees' Provident Fund (Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Provident Funds Act). By these orders the writ petitioners had been directed to pay the balance amount within fifteen days of the receipt of the orders, failing which recovery action and proceedings for prosecution as provided under the Act and the Scheme framed thereunder and Section 406/409 of the Indian Penal Code shall be initiated without any further notice. The, petitioners had challenged the orders on' numerous grounds. The points of law involved in the writ petition were formulated by the petitioners thus:
"1. Whether the determination of provident: fund dues in a proceeding under Section 7A of the Act of 1952 be provisional and the order dated April 11, 2007 passed in the instant case is sustainable as the same discloses provisional determination dues?
2. Whether the order dated April 11, 2007 passed ex parte in violation of the principles of natural justice and Section 7A of the Act of 1952 denying due opportunity of hearing to the petitioners is sustainable or not?
3. Whether the impugned order dated April 11, 2007 not being a speaking one and having been passed without considering the payments already made is valid or not?
4. Whether the demands, order of attachment of proceeds of sale of tea, show cause notices etc. subsequent to the impugned order dated April 11, 2007 are sustainable or not?
5. Whether demands can be raised or prosecution can be made beyond the reasonable period'?"
2. In support of these points of law, factually, it had been pleaded that the petitioners Poobang Tea Garden were originally owned by Duncan Brothers. In 1969 it was sold to LP. Karnani. Between 1975-1980 it was leased to Tea Sales & Allied Industries Private Limited. As the tea garden had been running into losses, it was totally closed on August 21, 1980. It remained closed for a period of four years. In 1984 the petitioners bought and took over the tea garden, when it was in a pitiable condition. Again the management changed hands in the year 1985. The new management reopened the Tea Garden, and started running the same, with their own financial resources. They were unable to secure any financial aid from their Bank, i.e., Bank of Baroda. However, there were agitations due to which a lock out was declared by the management from October 1, 1992. On or about September 23, 1999 the then Enforcement Officer lodged complaints with the Officer-in-Charge under Sections 406 and 409 of the Indian Penal Code against the management for non-payment of provident fund dues. The petitioners filed Writ Petition No. 18936 (W)/2000 in this Court wherein this Court passed the following order on 8th February, 2001:
"Heard the learned advocates for the parties. The learned advocate for the Provident Fund authorities, in his usual fairness, submitted that the matter can be decided by the Provident Fund Commissioner. This Court, therefore, directs the Provident Fund Commissioner to decide the matter in accordance with law within three weeks from the date of communication of this order. A copy of the writ application is to be served upon the Provident Fund Commissioner, West Bengal on or before next Monday (February 12, 2001).
Until the matter is decided by the Provident Fund Commissioner, no further steps, as suggested by the parties, will be taken up by the authority and if any adverse order is passed by the Provident Fund Commissioner, the same shall remain stayed at least for a week.
I make it clear that I have not gone into the merits of the case as the matter is to be adjudicated upon by the Provident Fund Commissioner.
Th
