Andhra Pradesh High Court - Amravati

M/S Hindustan Shipyard Ltd., vs The Regional Provident Fund ... on 4 February, 2021

Bench: Battu Devanand

                                   1




        THE HON'BLE SRI JUSTICE BATTU DEVANAND

               WRIT PETITION No. 25504 of 2010

O R D E R:

The present Writ Petition has been filed for the

following relief:

"...this Hon'ble Court may be pleased to issue

a Writ, Order or Direction(s) more particularly, one

in the nature of Writ of Mandamus, declaring the

Order No.AP/VP/13/CC-EXAM/7A/2010/1414, dated

30.09.2010, passed by respondent herein as wholly

illegal, unconstitutional, arbitrary, without

jurisdiction and contrary to the mandatory

provisions of the Employees' Provident Funds and

Mis.Provisions Act, 1952, and consequently restrain

the respondent herein from levying and demanding

Provident Fund at 12% under Section 6, Proviso of

the Employees Provident Funds and Miscellaneous

Provisions Act, 1952, and pass such other or

further orders as this Hon'ble Court deems fit and

proper under the circumstances of the case.

2) A counter affidavit has been filed by the respondent

No.1.

3) 1.A.No.44961 of 2017 was filed by the employees of the

petitioner establishment, who were in service by the time of

the order, dated 30.09.2010 passed by the respondent No.1

and later they were retired from service, seeking to implead

them as respondent Nos.2 to 28 and the same was allowed on

20.11.2012 impleading them as respondent Nos.2 to 28 in this

writ petition.

4) I.A.No.1 of 2018 was filed by the similarly situated

persons, who are impleaded as respondent Nos.2 to 28, and

as such, I.A.No.1 of 2018 is allowed on 08-12-2020,

impleading them as respondent Nos. 29 to 55 in this writ

petition.

5) Heard Sri P. Veera Reddy, learned Senior Counsel

representing Sri G. Ramesh Babu, learned counsel for the

petitioner, Sri Rambhupal Reddy, learned counsel for

respondent No.1, Sri V. Raghu, learned counsel for respondent

Nos.2 to 28 and Dr. P.B.Vijay Kumar, learned counsel for

respondent Nos. 29 to 55.

6) The learned senior counsel, Sri P. Veera Reddy, would

submit that the Petitioner/Hindustan Shipyard Limited, which

is a Government of India undertaking, has its registered Office

in Delhi and the factory and yard is located in Visakhapatnam.

The Petitioner has been undertaking the activities such as

construction of ocean going vessels, off-shore platforms,

repairs of ships/ submarines etc. The Petitioner over years has

been contributing to great measure in indigenous design,

construction and manufacture of ocean going vessels, off

shore platforms, oil rigs, drill-ship. The Petitioner was under

the administrative control and supervision of the Ministry of

Surface Transport and Ministry of Shipping.

7) The learned senior counsel submits that it has been

policy decision of the Government of India to give guidelines in

the pricing policy the ocean going vessels and these guidelines

with a view to encourage indigenous growth of ship building

activity in the country, encouraged competitive price and the

difference in pricing viz., between the actual cost in the

construction of a ship and the sale price of a ship is made

good through subsidies over a period of time. As a result of

incurring more expenses than the receipts, the Organization

has accumulated losses from 1979 onwards. As on

31.03.1998, the accumulated losses of the Organization are

Rs.962.99 crores. The accumulated losses have eroded the

paid up capital and all reserves of the petitioner.

8) The learned senior counsel submits that it is appropriate

to submit that the Petitioner has a key role to play in ship

building and repair activity from National Maritime Sector. The

Government of India having realized the importance and time

of restructuring the Petitioner's Organization in all aspects

including introduction of voluntary retirement scheme,

mechanization, writing off Government of India loans/

outstanding, interest accrued thereon, guarantee fee and also

simultaneously requested government of Andhra Pradesh to

consider writing off sales tax arrears and in view of

liberalization, the Petitioner's Organization was also permitted

to undertake and execute profit making ventures.

9) The learned senior counsel further submits that the

Government of India vide Communication No.SY-

11018/34/90-HSL (Vol.III), dated 24.03.1999, approved

capital restructuring of the Organization by extending various

book adjustments referred to therein. It is also appropriate to

submit that through the instant communication, the

Petitioner's Organization has not been provided with any cash

grant and subsidy but the outstanding entries in the books of

the Organization vis-a-vis Government of India have been

permitted to be adjusted.

10) The Petitioner's Organization is an establishment within

the meaning the Employees Provident Funds and Misc.

Provisions Act, 1952 (for short, "Act 1952"). Through

Notification dated 24.10.1970 issued in terms of Section 17

(1) of Act 1952, this Organization has been exempted and

authorized to run and operate a Provident Fund Trust in terms

of the provisions of Act, 1952. The Trust of the

Petitioner/Organization is being operated in the name and

style as "The Trustees of the Provident Fund for the Employees

of Hindustan Shipyard Limited, Visakhapatnam". The Petitioner

has been complying with the statutory contribution as

stipulated by Section 6 of Act, 1952 without fail and that it

operated the P.F. Contribution at 8.33% up till 21.09.1997,

and with Petitioner/Organization Contribution at 10%.

11) Through Amending Act No. 10 of 1998 to Act, 1952

Section 6 has been amended as follows:

"Provided that in its application to any establishment or class of establishments which the Central Government, after making such inquiry as it deems fit, may, by notification in the Official Gazette specify, this section shall be subject to the modification that for the words (ten percent), at both the places where they occur, the words [twelve percent) shall be substituted."

12) The Government of India, through Ministry of Labour,

New Delhi, issued Notification SO.No.320(E) [F.No.5-

35019/1/97-55 II, dated 09.04.1997) followed by clarification

thereon.

13) The trustees of the Petitioner have been filing Yearly

Returns before the Respondent No.1. Through the earliest

return filed on 20.12.2001, the trustees of the Petitioner have

informed that the P.F. rate of contribution applicable to the

Petitioner's Organization is 10% inasmuch as the Writ

Petitioner/Organization has not made profits and at the same

time suffered cash loss. The Respondent No.1 herein has been

verifying the balance sheet of Trust as well as the Petitioner's

Organization and was satisfied that the provident fund is

collected, contributed at applicable rate of 10% to all the

employees and no objection whatsoever has been raised at

any point of time till issuance of Notice/Summons dated

09.11.2009.

14) Learned senior counsel further submits that summons

under Section 7A of the Act, 1952 has been issued under a

mistake of fact and the same is evident from the copies of

Balance Sheets for the years 1999-2001; 2002-2004 and from

2005-2008, and that the Petitioner/Organization on account of

book adjustment could not incur further losses and at the

same has not made cash profits in any of the financial years

for which re-assessment under Section 7A of Act, 1952 has

been sought to be made. It is contextual to submit that the

object of enhanced rate of P.F. contribution at 12% instead of

10% is to allow the employees to enjoy 2% more contribution

from an employer, who is making profit in the establishment.

In other words, when there is no cash profits, the intendment

of amendment through Act 10 of 1998 is to continue to pay

the statutory contribution of 10% Provident Fund. The extracts

from the annual reports for the years 1999-2001; 2002-2004

and from 2005-2008, together with the abstract statement

showing the book profit as reflected and the statement of

company on capital restructuring and how an account of

statement made therein, the Writ Petitioner continuous to

have no cash profits.

15) Learned senior counsel submits that in response to the

notice dated 09.11.2009, the Petitioner submitted

explanations, vide AC/PF/001/2010, dated 21.04.2010 and

PD/E/0800/53/2009, dated 24.07.2010 and also the

Certificate, dated 17.07.2010 of Chartered Accountant,

showing the non-cash adjustments in the subject years and on

account of such non-cash adjustments, the Petitioner

continuous to operate without cash profits.

16) The initiation of enquiry under Sec. 7A of Act, 1952 is

illegal, unwarranted and should have been dropped without

further enquiry on receipt of explanations from the Petitioner.

The Petitioner further objected for the continuation of enquiry

by the Respondent No.1 on the ground that unless and until

there is a notification issued pursuant to amending Act 10 of

1998, there is no legal obligation to pay at 12% instead of

10% under Act, 1952. The Respondent No.1, through an

Order, dated 30.09.2010, calling upon the Petitioner to pay a

sum of Rs. 13,18,28,046.00 within seven days. Questioning

the same, the present Writ Petition has been filed.

17) The impugned order besides being illegal and contrary to

Section 6 of Act, 1952, has denied to the Petitioner the legal

remedies available under law. The order under Section 7A of

Act, 1952 is appealable under Section 7N of the Act, 1952 and

the period of limitation for filing appeal is 60 days from the

date of receipt of Order. Further, on account of statutory

deposit, the remedy of appeal in a case like this is not

effective and efficacious. Further under the scheme of the Act

1952, the Petitioner can plead for waiver of statutory deposit

and pursue the legal remedies within the four corners of law.

For the reasons best known, the Respondent No.1 has passed

the order by giving seven (7) days for compliance in a matter

where the fixation of amount covers as many as 11 years. The

periodical returns filed at 10% P.F. contribution has been

accepted and appropriate directions for fund management

have been issued by the Respondent. Through the order

impugned, the benefit designed to be extended to the

Petitioner either through capital restructuring or proper book

entries is also defeated. The order impugned further shows

that the same has been taken up, pursued on the

representation of Sri M. Jagadeeswara Rao, Member, Central

Board Provident Fund Trust. The said member is a workman of

the Petitioner and the reasons for petitioning the respondent

No.1 are not bona fide and not in line with the scheme of the

Act, 1952. The Petitioner without meaning offensive to the

Respondent No.1 has reason to believe that the statutory

power under Section 7A of Act, 1952 has been compelled to

be exercised by Respondent No.1. Such exercise of power is

impermissible in law and amounts to arbitrary exercise and

unconstitutional.

18) Learned senior counsel further submits that the

respondent No.1 has failed to properly and legally consider the

explanations read with certificate of Chartered Accountant in

right perspective. On the contrary, the observation in the

impugned order that the Chartered Accountants, who have

certified the respective Balance Sheet are different from the

Chartered Accountant who has given the certificate. Further,

the lapse of time in issuing the Show Cause Notice, dated

09.11.2009, has caused prejudice to the Petitioner and the

inordinate delay has vitiated the exercise of power by the

respondent No.1.

19) The impugned order is liable to be set aside inasmuch as

it does not refer to the definite objection raised by the

Petitioner that there is no notification under Section 6 of Act,

1952 and consequently the Petitioner has statutory obligation

to continue to comply with P.F. at 10% and not more than

that. The payment of higher rate of Provident Fund is

justifiable in an establishment where cash profits are actually

felt and reflected in books of accounts. The entire exercise of

authority for revising the order amounts to review of returns

already accepted and there is no material warranting such

exercise by the Respondent No.1. It is further averred that in

the event of complying with the order it will not in a position

to pay the salaries to the employees and the non-compliance

within the stipulated time will result in issuance of restraint/

recovery proceedings and in such an event, the Petitioner

suffers irreparable loss and hardship. Hence, learned senior

counsel sought to allow the present Writ Petition.

21) On the other hand, Sri Rambhoopal Reddy, learned

counsel for the respondent No.1 submits that the respondent

No.1 has passed the impugned order under Section 7A of the

Employees Provident Funds and Miscellaneous Provisions Act,

1952, and against the said order, the petitioner has an

effective alternative remedy by way of an appeal under

Section 7-I of the Act before the EPF Appellate Tribunal, and

therefore, the petitioner has no alternative remedy than to file

this Writ Petition under extraordinary jurisdiction under Article

226 of the Constitution of India is not correct. Further, the

grounds on which the petitioner relied in the present writ

Petition are all on question of facts and this Hon'ble Court

under Article 226 of the Constitution of India cannot decide

the same as this is not a Court of Appeal especially where

there is an effective alternative remedy by way of Appeal to

the EPF Appellate Tribunal.

22) Sri V. Raghu, learned counsel for the respondent Nos.2

to 28 and Dr. P. Vijaya Kumar, learned counsel for the

respondent Nos.29 to 55, submit that the writ petition is not

maintainable, as the writ petitioner had approached this

Hon'ble Court without exhausting the remedy of appeal

provided under Section 7-I of the Act and the remedy of

review provided under Section 7B of the Act. They further

submit that the writ petitioner did not deposit any amount as

per the order, dated 30.09.2010 in view of the interim stay

order, dated 07.10.2010 passed in this writ petition. In fact,

deposit of 75% of the amount determined by the authority

under Section 7A is mandatory for filing appeal. No appeal by

the employer shall be entertained by a Tribunal unless he has

deposited with 75% of the amount due from him as

determined by an Officer referred to in Section 7A as per

Section 7-O of the Act. Their complaint against the petitioner

is that to avoid to make statutory deposit of 75% as per

Section 7-O of the Act, the petitioner filed this writ petition,

without exhausting the remedy of statutory Appeal.

23) It is further submitted that the present writ petition filed

by the petitioner intentionally and deliberately to escape the

mandatory responsibility of depositing the 75% of the amount

due from him as determined by the competent authority. As

such, the learned counsel sought dismissal of this writ petition,

as it is not maintainable.

24) The learned senior counsel for the petitioner relied on

the following judgments:

(1) Jiyajeerao Cotton Mills Employees' Provident Fund Institution vs. Dev Kumar Holani and others1;

(2) Food Corporation of India vs. Provident Fund Commissioner and others2;

(3) Aluminium Corporation of India Ltd., vs. Regional Provident Fund Commissioner and others3 and

(4) Regional Provident Fund Commissioner vs. Hooghly Mills Company Limited and others4.

25) The learned counsel for the implead respondents relied

upon the following judgments:

(1) United Bank of India vs. Satyawati Tondon and others5

(2) St. Michael's Hr. Sec. Shool vs. The Assistant Provident Fund6 and

(1998) 6 Supreme Court Cases 35

(1990) 1 Supreme Court Cases 68

AIR 1958 Cal 570

(2012) 2 Supreme Court Cases 489

(2010) 8 Supreme Court Cases 110

Laws (MAD) 2018 9 614

(3) Kakatiya University Provident Fund vs. Employees' Provident Fund7

26) This Court gave anxious consideration to the submissions

made by the learned counsel appearing for the respective

parties and perused the material available on record. This

Court also carefully have gone through the judgments relied

by them.

27) Upon careful consideration of the judgments relied by the

learned counsel for the petitioner, this Court is of the opinion

that there is no any dispute with regard to the proposition of

law laid down in those judgments, but, with great respect it

has to be held that those judgments are not applicable to the

facts and circumstances of the present case. It is further to

be noted that the judgment relied by the petitioner in Hooghly

Mills Company Limited case (4 supra), the Hon'ble Supreme

Court at para No.21 opinioned as under:

However, we are of the opinion normally the statutory remedy of appeal should be availed of in a situation like this.

28) The order passed by the respondent No.1 in proceedings,

dated 30.09.2010 under Section 7A of the Employees

Provident Funds and Miscellaneous Provisions Act, 1952 is

under challenge in this writ petition.

2007 (2) ALD 354

29) Though several grounds are raised questioning the

legality and validity of the order passed by the respondent

No.1 under Section 7A of the Act, this Court is not inclined to

go into the merits of those issues, in view of the fact that an

efficacious alternative remedy is available to the aggrieved

parties under Section 7-I of the Act.

30) It is appropriate to examine Section 7-I and 7-O of the

Act as extracted hereunder for proper adjudication of the

present case:

7-I. Appeals to Tribunal:-(1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub section (3), or sub-section (4), of section 1, or section 3, or sub-section (1) of section 7A, or section 7B (except an order rejecting an application for review referred to in sub section (5) thereof], or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order.

(2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.

7-0. 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 percent 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.

31) On careful examination of Section 7-I of the Act, the

order under impugned in the present writ petition which was

passed under Section 7-A of the Act is an appealable order as

provided under Section 7-I of the Act.

32) In the considered opinion of this Court as and when

there is a provision for an appeal under the statute, no writ

petition can be entertained without exhausting the remedies

available under the statute. Only under exceptional

circumstances i.e., if there is a gross injustice or if there is a

violation of fundamental rights guaranteed under the

Constitution of India. This Court can entertain the writ petition

by waiving the remedy of appeal provided under the statute

only in exceptional circumstances, but not in a routine

manner. As and when the statute itself provides an efficacious

alternative remedy, then this Court cannot entertain a writ

petition under Article 226 of the Constitution of India.

33) The view of this Court that when an efficacious alternative

remedy is available, a writ petition under Article 226 of the

Constitution of India cannot be maintainable and cannot be

entertained, is fortified by the following rulings of the Hon'ble

Apex Court:

34) In Kanaiyalallalchand Sachdev and Ors. vs. State of

Maharashtra and Ors.8, the Hon'ble Apex Court held as

hereunder:

It is well settled that ordinarily relief Under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person.

35) In Commissioner of Income Tax and Ors. v.

ChhabilDass Agarwal9, the Hon'ble Apex Court held at para

No.15 as extracted hereunder:

While it can be said that this Court has recognised some exceptions to the Rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in ThansinghNathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition Under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the

(2011) 2 SCC 782

2014(1) SCC 603

statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

36) In Authorized Officer, State Bank of Travancore and

Ors. Vs. Mathew K.C.10 the Hon'ble Apex Court held as

hereunder:

The petitioner argued that the SARFAESI Act is a complete code by itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions, the remedy of appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under Section 18. The High Court ought not to have entertained the writ petition in view of the adequate alternate statutory remedies available to the Respondent. The interim order was passed on the very first date, without an opportunity to the Appellant to file a reply. Reliance was placed on United Bank of India vs. Satyawati Tandon and others, 2010 (8) SCC 110, and General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs. Ikbal and others, 2013 (10) SCC 83. The writ petition ought to have been dismissed at the threshold on the ground of maintainability. The Division Bench erred in declining to interfere with the same. The Supreme Court agreed to the arguments and held the same also noted that the writ petition ought not to have been entertained and the interim order granted for the mere asking without

(2018) 3 SCC 85

assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum.

37) In State of Himachal Pradesh v. Gujarat Ambuja

Cement Ltd.11, the Supreme Court explained the rule of

'alternate remedy' in the following terms:

Considering the plea regarding alternative remedy as raised by the appellant-State. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.

AIR 2005 SC 3856

38) Now we will examine the judgments relied upon by the

learned counsel for respondent Nos.29 to 55.

39) The Hon'ble Supreme Court in Satyawati Tondon's case

(5 supra) held at para No.55 as extracted hereunder:

55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse Impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.

40) A Division Bench of High of Madras in St. Michaels Hr. Sec.

School's case (6 supra) at para No.17 held as extracted

herein:

17. As rightly observed by the writ Court, when there is an efficacious and alternative remedy, writ would not ordinarily be entertained, except in an extraordinary circumstances, which on the facts and circumstances of the case, we do not find.

41) In Kakatiya University's case (7 supra) the High Court of

Andhra Pradesh held at para Nos. 10 and 18 as extracted

hereunder:

10. At the outset, it is to be noted that the orders impugned in both the writ petitions which are made

under Section 7-A of the Act are appealable under Section 7-I of the Act. Since the impugned orders can neither said to be without jurisdiction nor in violation of the principles of natural justice, as rightly contended by the learned Counsel for the respondents, without exhausting the alternative remedy available under the statute, the petitioner cannot maintain these writ petitions.

11. In the circumstances, the validity/sustainability of the orders impugned cannot be enquired into in a writ proceeding under Article 226 of the Constitution of India since the same requires consideration of various disputed questions of fact. Hence, the proper course for the petitioner is to avail the alternative remedy of appeal as available under the Act. If any such appeals are preferred the same shall be considered and decided on merits uninfluenced by any of the observations made/findings recorded by this Court.

42) In the light of the law laid down by the Hon'ble Apex

Court in the above cited judgments, this Court is of the

opinion that it is not established by the writ petitioner in the

present case that there is a violation of principles of natural

justice nor there is an error apparent under the statue and no

exceptional circumstances cited supra have been established

in the present writ petition. As such, it is to be held that there

is no reason to entertain this writ petition under Article 226 of

the Constitution of India as and when efficacious alternative

remedy is available under Section 7-I of the Act to the

petitioner.

43) For the above mentioned reasons, this Court is of the