Allahabad High Court
Nagar Nigam,Moradabad vs Union Of India And 3 Others on 17 February, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34
1. Case :- WRIT - C No. - 23895 of 2022
Petitioner :- Nagar Nigam,Moradabad
Respondent :- Union Of India And 3 Others
Counsel for Petitioner :- Ajay Kumar Srivastava,Sr. Advocate
Counsel for Respondent :- A.S.G.I.,Amit Kumar Singh,Anupam Kumar,Sachindra Upadhyay,Sanjeev Kumar Rai
2. Case :- WRIT - C No. - 476 of 2023
Petitioner :- M/S Naushad Ali
Respondent :- Union Of India And 3 Others
Counsel for Petitioner :- Umesh Dwivedi
Counsel for Respondent :- A.S.G.I.,Amit Kumar Singh,Jagdish Pathak,Sunil Sharma
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Samir Sharma, learned Senior Advocate assisted by Sri Ajay Kumar Srivastava, Advocate for Nagar Nigam, Moradabad, Sri G.S. Bist, Advocate for M/s Naushad Ali, Sri Anupam Kumar and Sri Sunil Sharma, Advocates for Union of India and Sri Amit Kumar Singh, Advocate for Employees Provident Fund Organization.
2. Writ-C No. 23895 of 2022 (hereinafter referred to as "First Petition") is filed by Nagar Nigam, Moradabad and Writ-C No. 476 of 2023 (hereinafter referred to as "Second Petition") is filed by M/s Naushad Ali. With the consent of learned counsel for parties both these writ petitions have been heard together and are being decided by this common judgment.
3. It has been brought on record that a legal issue, "whether provisions of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "Act, 1952") are applicable to employees of Nagar Nigam or not" is pending before this Court in Writ-C Nos. 26320 of 2016, 18469 of 2019 and 18363 of 2019 and other connected matters.
4. In Writ-C Nos. 18469 of 2019 and 18363 of 2019 proceedings initiated under Section 7A of Act, 1952 were stayed and writ petitions are pending. So far as another connected matter, i.e., Writ-C No. 8555 of 2016 is concerned, therein Court has directed to carry on proceedings but no final order will be passed without leave of the Court.
5. Proceedings under Section 7A of Act, 1952 were initiated against M/s Naushad Ali, wherein inquiry was going on. Said M/s Naushad Ali filed an application for impleadment of Nagar Nigam, Moradabad as it was contended that M/s Naushad Ali, being a contractor, has supplied workmen to Nagar Nigam, Moradabad and since Nigam failed to deposit its contribution, it was not passed on to Employees Provident Fund Organization.
6. Initially said application was rejected on basis of legal advise. Thereafter a subsequent application was filed and considering that Nagar Nigam is a necessary party as well as taking note that in some of cases this Court has allowed proceedings to go on wherein Nagar Nigam is also participated with direction that no final order be passed, Nagar Nigam, Moradabad was impleaded as a party in proceedings.
7. Second Petition was filed by M/s Naushad Ali challenging inquiry initiated against it under Section 7A of Act, 1952.
8. Sri Samir Sharma, learned Senior Advocates has taken this Court to various provisions of Act, 1952 that there is no provision to review the order passed by Prescribed Authority under Act, 1952. Only power of review is provided under Section 7B of Act, 1952 to review an order passed under Section 7A of Act, 1952. He further submits that provisions of Civil Procedure Code are not strictly applicable to proceedings under Act, 1952. In support of his submissions he placed reliance on various judgments of Supreme Court as well as this Court that when there is no specific power of review the authority concerned cannot exercise said power.
9. Looking into the entire prospectus of case that notification whereby provisions of Act, 1952 are applicable to Nagar Nigam, is under challenge before this Court and in some of cases proceedings are permitted to go on, Nagar Nigam being one of the party, with direction that no final order will be passed, therefore, it cannot be said at this stage that Nagar Nigam is not necessary party in proceedings under Section 7A of Act, 1952. This Court is also of the view that proceedings can go on but no final order be passed.
10. Learned Senior Advocate wants to take a hyper technical view that once an application is rejected for impleadment on basis of legal advise given to authority concerned, a subsequent application cannot be allowed for impleadment of Nagar Nigam. Such a hyper technical approach is against the interest of justice. Prescribed Authority has not reviewed an order passed on merit which may prejudice the case of Nagar Nigam rather it has entertained a fresh application and taking note of interim orders passed by this Court wherein proceedings have been allowed to continue in presence of Nagar Nigam with further direction that no final order be passed, the application was allowed and Nagar Nigam was directed to be impleaded. Therefore, this is not akin to review an order. Since first order was passed only on legal advise to authority, therefore, authority has rightly considered the fresh application and passed order to implead party. Section 7-A(2)(a) of Act, 1952 specifically provides that Competent Authority while conducting inquiry has power as are vested in a Court under Code of Civil Procedure for trying a suit for enforcing the attendance of any person or examining and, therefore, Nagar Nigam can be called for attendance during inquiry.
11. There is another aspect of the case that till notification which is challenged in many writ petitions before this Court either quashed or stayed, provisions of Act, 1952 are applicable to Nagar Nigam, therefore, at this stage, this Court is of the view that Nagar Nigam is a necessary party.
12. In view of above, I am of the view that the order impugned in First Petition does not suffer from any illegality.
13. So far as relief sought in Second Petition is concerned, petitioner therein has rushed to this Court only at the stage of inquiry and till date no adverse order has been passed. Therefore, relief sought therein also cannot be granted.
14. Consequently, prayers in both the writ petitions are rejected. Proceedings are directed to go on, however, outcome of proceedings will abide by the outcome of writ petitions wherein notification dated 08.01.2011 issued by Ministry of Labour and Employment is under challenged.
15. With aforesaid observations, both writ petitions are disposed of.
Order Date :- 17.2.2023
AK
