Allahabad High Court
Orba Thermal Power Project vs Employees Provident Fund ... on 8 July, 2021
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - C No. - 9088 of 2021
Petitioner :- Orba Thermal Power Project
Respondent :- Employees Provident Fund Appellate Tribunal And 2 Others
Counsel for Petitioner :- Sandeep Pandey,Devesh Tripathi,Sunil Kumar Tripathi
Counsel for Respondent :- Sachindra Upadhyay,Udit Chandra
Hon'ble Pankaj Bhatia,J.
Heard Sri Sunil Kumar Tripathi, counsel for the petitioner and Sri Sachin Upadhyay, counsel for the Respondents No. 2 and 3, learned Standing Counsel and perused the record.
The present writ petition has been filed alleging that the petitioner is a U.P. Government Undertaking and an order dated 2.5.2018 was passed by the Respondent No. 3, Assistant Provident Fund Commissioner, Varanasi whereby the damages under Section 14-B amounting to Rs. 79,23,909/- and interest under Section 7-Q of the Employees Provident Fund and Misc. Provisions Act, 1952 (hereinafter referred to as 'the Act, 1952') amounting to Rs. 51,13,632/- were imposed. Aggrieved against the said order, the petitioner preferred an appeal under Section 7-I of the Act, 1952 on 23.5.2018 along with a Waiver Application for pre-deposit under Section 7-O of the Act, 1952.
Counsel for the petitioner argues that on a perusal of Section 7-O of the Act, 1952, it is clear that no pre-deposit was required unless the said direction is issued under Section 7-A of the Act, 1952. Section 7-O of the Act, 1952 is quoted hereinbelow:
"Section 7-O Deposit of amount due, on filing appeal- No appeal by the employer shall be entertained by a Tribunal unless he has deposited with it seventy-five per cent of the amount due from him as determined by an officer referred to in section 7A:
Provided that the Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section."
Counsel for the petitioner, thus, argues that although there was no assessment/order passed against the petitioner under Section 7-A, however, by means of abundant caution an application for waiver of pre-deposit was filed in the appeal. It is further stated that on 2.7.2018, the Appellate Tribunal considered the application for waiver of pre-deposit filed by the petitioner and directed that the amount as assessed under Section 14-B shall remain stayed subject to further deposit of interest assessed against the petitioner under Section 7-Q of the Act, 1952. Aggrieved against the said order dated 2.7.2018, the petitioner, by filing a Writ Petition No. 30335 of 2018, challenged the same by approaching this Court, which was dismissed by means of a judgment dated 13.9.2018 (Annexure No. 6 to the writ petition). Aggrieved against the same, it is stated that the petitioner approached the Supreme Court, however, no relief could be granted to the petitioner even in the SLP filed by the petitioner. He thus, in sum and substance, argues that in terms of the order dated 2.7.2018 passed by the Appellate Tribunal, it was incumbent upon the petitioner to deposit interest under Section 7-Q of the Act, 1952, however, as the petitioner had availed legal remedies, the amount of interest could not be decided within the time granted in the order dated 2.7.2018. It has been argued by the counsel for the petitioner that on 28.3.2019, the entire interest as was imposed against the petitioner under Section 7-Q of the Act, 1952 has been recovered by way of attachment of the accounts of the petitioner, which is clear from the perusal of Annexure No. 8, which discloses the amount attached from the account of the petitioner towards payment of interest under Section 7-Q of the Act, 1952. Thus, it is established that interest has been paid as assessed under Section 7-Q and no further amount is to be paid in terms of the order dated 2.7.2018.
The contention of the counsel for the petitioner is that as there was delay in recovery of the interest and the petitioner could not deposit the interest within the time prescribed under order dated 2.7.2018, a recovery certificate has been issued against the petitioner for the entire amount including the amount assessed against the petitioner under Section 14B of the Act, which is subject matter of challenge in the appeal and the appeal is yet to be decided.
The sole ground for issuance of recovery certificate is the delay in payment of interest.
I have considered the entire submissions including the import of Section 7-O of the Act, 1952, which makes it very clear that the Appellate Tribunal is duty bound to entertain the appeal filed by the employer which is accompanied by the amount of seventy five percent of the amount due as assessed against the petitioner only under Section 7-A of the Act, 1952. There is no other provision for pre-deposit with regard to entertainment of an appeal arising out of the order passed under Section 14-B or any other order. Although the condition prescribed under Section 7-O is for entertaining the appeal, the appellate tribunal is well within its right to consider the application for stay of the recovery of amounts assessed as is inherently available to any tribunal established under any law as held by Supreme Court in Income Tax Officer Vs. M.K. Mohammed Kunhi, 1969 AIR 430, 1969 SCR (1) 65.
While in the present case the controversy involved is with respect to realization of interest amount under Section 7-Q which has already been recovered from the petitioner and only the amount under Section 14B as assessed against the petitioner has not been paid and the appeal is still pending consideration. The writ petition is disposed off with a direction upon the appellate authority to hear and decide the appeal No. ATA 22 of 2018 as expeditiously as possible preferably within a period of four months from the date of filing of a copy of this order before the appellate authority. As admittedly, the interest amount under Section 7-Q has already been recovered from the petitioner, the recovery certificate issued on 12.2.2021 for recovery of the amount assessed under Section 14B of the Act, 1952 and as contained in Annexure No. 1 shall not be given effect till disposal of the appeal No. ATA 22 of 2018.
The writ petition stands disposed off in terms of the said order.
Order Date :- 8.7.2021
vinay
