JUDGMENT :

A.J. DESAI, J.

1. By way of present appeals, preferred under Clause 15 of Letters Patent, present appellant-original petitioner has challenged the order dated 13.03.2012 passed by learned Single Judge in captioned writ petitions, by which, learned Single Judge has upheld the order dated 07.09.2011 passed by Employees’ Provident Fund Appellate Tribunal, New Delhi, Camp at Jaipur in ATA No. 426(5) 2010, ATA No. 155 (5) 2010 and ATA No. 577(5) 2010, by which, the Tribunal has reduced the liability of the respondent at the rate of 22% including rate of interest annually, and therefore, present appellant has filed Civil Application (For Amendment) No. 1 of 2021 in each of the appeal. The said applications were opposed by the present respondent and by a CAV IA order dated 21.01.2022 passed by the Division Bench of this Court (Coram: Hon’ble Mr. Justice N.V. Anjaria and Hon’ble Dr. Justice A.P. Thaker) in Civil Application (For Amendment) No. 1 of 2021 in R/Letters Patent Appeal No. 1261 of 2012 in Special Civil Application No. 2015 of 2012 with allied matters, dismissed the said applications and permitted the Authority to challenge the decision.

2. Today, when the matters are taken up for final hearing, the order dated 21.01.2022 passed by the Division Bench of this Court is placed before this Court.

3. We have gone through the order dated 21.01.2022 passed by the Division Bench of this Court, relying upon several decisions of the Hon’ble Apex Court, which are as under:

5. While the aspect of delay on both the considerations above could hardly be brushed aside, there is a weighty reason that would answer the prayer of the applicants inasmuch as the issue involved is no more res integra. The order impugned in the Special Civil Application was passed by Regional Provident Fund Commissioner and Recovery Officer in capacity of Adjudicating Authority under the provisions of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952. It was in exercise of quasi judicial powers vested in it. The order of such kind and nature came to be challenged by the Regional Provident Fund Commissioner.

5.1 In Mohtesham Mohd. Ismail vs. Special Director, Enforcement Directorate, (2007) 8 SCC 254, the Supreme Court dealt with the issue of maintainability of an appeal by the Special Director with reference to Sections 4, 9 and 54 of the Foreign Exchange Regulation Act, 1973. Special Director under the Act had preferred appeal before the High Court against order passed by the Foreign Exchange Regulation Appellate Board. There was a Notification providing for the purpose of exercise of the Central Government, the officer must be specially authorised, however in absence of such Notification giving authorisation, it was held that the Director was not empowered to prefer appeal on behalf of the Central Government.

5.1.1 The underlying principle highlighted was that the Special Director was an Adjudicating Authority exercising quasi judicial power and in absence of specific power and authorisation, appeal could not have been preferred by him with such capacity. In that case, the question was raised before the High Court with regard to maintainability of appeal at the instance of the respondents on the premise that it was the Central Government who should prefer appeal and not the Adjudicating Authority itself. The High Court opined that as the respondent Special Director was appointed under the Act and in terms of the provisions under the Act he was authorised to enforce the statutory provisions, appeal at his instance would be maintainable.

5.1.2 The Supreme Court specifically ruled that Adjudicating Authority would not be entitled to prefer appeal:

“An adjudicating authority exercises a quasi-judicial power and discharges judicial functions. When its order had been set aside by the Board, ordinarily in absence of any power to prefer an appeal, it could not do so. The reasonings of the High Court that he had general power, in our opinion, is falla