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2016 Supreme(Ori) 213
IN THE HIGH COURT OF ORISSA, CUTTACK
S.N. PRASAD, J.
Vinayaka Mission Lord Jagannath Institution of Dental Science and Research – Petitioner
Versus
Assistant Provident Fund Commissioner and Another – Opposite Parties
W.P. (C) No. 11976 of 2005
Decided On : 10-05-2016
For the Petitioner: M/s. Biswa Mohan Pattnaik, R. Sharma, S.K. Singh Samanta, P.R. Patnaik, P. Behera and B.K. Tripathy.
For Opposite Parties : Mr. Sishir Sundar Mohanty.
The main legal point established in the judgment is the importance of coming to the court with clean hands and without suppression of material facts, the specific statute providing a certain period of limitation for filing an appeal, and the finality of the court's order in the writ petition.
Headnote:
Employees Provident Fund - Ex-parte order - Employees Provident Fund and Miscellaneous Provisions Act, 1952, Section 7A, Rule 7 - The court discussed the provisions of Section 7-I of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 and Rule 7 of the Employees’ Provident Funds Appellate Tribunal (Procedure) Rules, 1997. The court highlighted the power of appeal vested with the Tribunal, the time limit for filing an appeal, and the conditions for extending the appeal period. The court emphasized the conduct of the petitioner in not cooperating with the authority and suppressing material facts before the court and the Tribunal. The court also discussed the dismissal of the appeal on the basis of limitation and on merit, and the implications of reversing the order passed by the Appellate Authority.
Fact of the Case:
The petitioner, a Dental College, was covered under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The petitioner challenged the ex-parte order passed under Section 7A of the Act and filed a writ petition and an appeal before the Appellate Tribunal. The court dismissed the writ petition and the appeal was subsequently rejected by the Tribunal. The petitioner then filed a writ petition seeking direction to produce relevant documents before the authority who decided the 7A proceeding.
Finding of the Court:
The court found that the petitioner did not cooperate with the authority and suppressed material facts before the court and the Tribunal. The court upheld the dismissal of the appeal by the Tribunal, emphasizing that it was not only on the basis of limitation but also on merit, considering the order of the court dismissing the writ petition on merit.
Issues: The issues included the ex-parte order under Section 7A, the conduct of the petitioner, the dismissal of the appeal on the basis of limitation and on merit, and the implications of reversing the order passed by the Appellate Authority.
Ratio Decidendi: The court emphasized the importance of coming to the court with clean hands and without suppression of material facts. It highlighted the specific statute providing a certain period of limitation for filing an appeal and the conditions for extending the appeal period. The court also considered the finality of the order passed by the court in the writ petition.
Final Decision: The court dismissed the writ petition seeking direction to allow the petitioner to produce the relevant document before the authority who decided the 7A proceeding, upholding the dismissal of the appeal by the Tribunal.
JUDGMENT :
S.N. Prasad, J.
1. This writ petition is against the order dated 25.7.2005 passed in A.T.A. No. 169(10) of 2004 by the Employees Provident Fund Appellate Tribunal whereby and where under the appeal preferred by the petitioner has been dismissed and also to quash Annexure-4 which is an order passed U/s.7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and to permit the petitioner to produce all the necessary documents to complete the 7A proceeding under Employees Provident Fund and Miscellaneous Provisions Act, 1952.
2. The brief fact of the case of the petitioner is that the petitioner being a Dental College established in the State of Orissa situated at Bhubaneswar started admitting students for the academic session 1998-99. The Enforcement Officer of the Employees Provident Fund Organization issued a notice to produce several documents fixing the date of hearing as 10.4.1999. However, without verification of the document the petitioner- establishment was covered under the purview of the Act w.e.f.16.1.1998 and it was allotted Code No.OR/5695. On the basis of an anonymous letter, a proceeding U/s.7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act 1952) was initiated and an order was passed by the authority U/s.7a of the Act.
According to the petitioner the order passed U/s.7A was an ex-parte order, hence an application U/s.7(A)(4) of the Act, 1952 was filed to set aside the ex-parte order which was disposed of vide order dated 15.10.2003, but however, the prayer of the petitioner was rejected. The petitioner being aggrieved with the order dated 6.6.2003 passed U/s.7A had filed writ petition being W.P.(C) No.8551 of 2003 and while the writ petition was pending before this court, an appeal was also preferred before the Appellate Tribunal being A.T.A. No.169(10) of 2004 on 10.3.2004. While the appeal was pending, writ petition being W.P.(C) No.8551 of 2003 was dismissed vide order dated 22.3.2004.
While the appeal was pending before the Tribunal a summon was issued by the Recovery Officer whereby and where under the petitioner was informed that a certificate case being C.C. No.73 of 2004 has been initiated against the petitioner for recovery of Rs.32,20,169/- as assessed U/s.7A proceeding. The petitioner having no option had again moved this court vide writ petition being W.P.(C) No.13681 of 2004, since the appeal could not be admitted as no Presiding Officer was appointed in the Appellate Tribunal, hence this court vide order dated 21.12.2004 stayed the further proceeding of certificate case on payment of Rs.2 lakhs and the writ petition was subsequently been withdrawn vide order dated 28.2.2005 after the Presiding Officer of the Appellate Tribunal was appointed.
The Appellate Tribunal has not condoned the delay in view of provision of Sub-Rule-(2) of Rule 7 of the E.P.F. Appellate Tribunal (Procedure) Rules, 1997 vide order dated 25.7.2005 and dismissed the appeal, being aggrieved the petitioner is before this court by way of this writ petition.
3. Learned Sr. Counsel appearing for the petitioner has submitted that the proceeding U/s.7A of the Act was an ex-parte order since he has not been provided with an opportunity of being heard, however he has filed an application for recall of the ex-parte order passed U/s.7A of the Act by making an application U/s.7A(4), however the same has also been rejected.
While arguing the case for the petitioner it has been contended that the order passed by the authority U/s.7A of the Act is absolutely mechanical and without application of mind since the same has been passed without considering the fact that the Dental College has not yet started its functioning.
4. Counter affidavit has been filed by the opposite parties, inter-alia therein it has been stated that the petitioner has not come with clean hand from the very beginning before the authority or before this court or before the Tribunal. It has been st
