Bombay High Court
Shri. Shivaji Education Society, ... vs Assistant Commissioner Of ... on 13 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6892 OF 2015
PETITIONER: Shri Shivaji Education Society,
Amravati, through its Secretary,
Shivaji Nagar, Amravati.
-VERSUS-
RESPONDENTS: 1. Assistant Commissioner of Provident
Fund, Sub-Regional office, Akola, 15-
B Raghuraj Arcade, Civil Lines, Akola
444 001.
2. Area Enforcement Officer, Amravati,
ig Mal Tekadi Road, Dole Banglow,
Opposite Ramgiri Hotel, Amravati.
Shri Abhay Sambre, Advocate for the petitioner.
Shri H. N. Verma, Advocate for respondent no.1.
Reserved no.2 served.
----------------------------------------------------------------------------------------------------
CORAM: A.S. CHANDURKAR, J.
DATED: 13
th JULY, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioner is aggrieved by the order passed by the
respondent no.1 under provisions of Section 7A of the Employees
Provident Fund and Miscellaneous Provisions Act, 1952 (for short,
the said Act). It is the case of the petitioner that the said order has
been passed in a manner contrary to law. Though the liability for
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the period from April, 2008 to March 2014 had been deferred for
fresh enquiry as per the report of the Enforcement Officer, the
respondent no.1, however, adjudicated the liability for said period
also. According to the petitioner though a statutory remedy of
filing an appeal under Section 7I of the said Act is available, as the
impugned order results in gross injustice, a case for interference
under Article 226 of the Constitution of India is made out. The
learned Counsel has relied upon the judgment of the Hon'ble
Supreme Court in State of Tripura Vs. Manoranjan Chakraborty
and others (2001)10 SCC 740 in that regard.
3. A preliminary objection has been raised on behalf of
the respondent no.1 that the remedy of filing a statutory appeal
under Section 7I of the said Act is available and hence, the present
writ petition does not deserve to be entertained as no exceptional
case is made out. Reliance has been placed on the judgment of the
Hon'ble Supreme Court in Commissioner of Income Tax and others
Vs. Chhabil Dass Agarwal 2014(1) SCC 603 in that regard.
4. Having heard the respective Counsel and having
perused the impugned order, I find that one of the issues that
arises is with regard to the liability to pay contribution for the
period from April, 2008 to March, 2014. While it is the case of the
petitioner that the Enforcement Officer in his report had submitted
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that there should be a fresh assessment and enquiry for the period
from April 2008 onwards, in the impugned order it has been stated
that the representative of the petitioner on 17-10-2014 had
requested that upto date assessment may be made in respect of
establishment. This aspect which is disputed requires factual
adjudication which is not possible in writ jurisdiction.
5. In view of aforesaid, I do not find that this is a fit case
to entertain the writ petition and the petitioner deserves to be
directed to avail the statutory remedy of filing an appeal under
Section 7I of the said Act.
6. In view of aforesaid, the following order is passed:
(a) The petitioner is at liberty to challenge the order dated
29-10-2015 passed by the respondent No.1 by filing appeal under
Section 7I of the said Act. As the present writ petition was filed
within a period of 60 days from the date of passing of the
impugned order, if such appeal is filed within a period of four
weeks from today,the appeal shall be entertained on merits
without going into the question of delay.
(b) By order dated 22-12-2015 the petitioner was directed
to deposit 50% of the amount of contribution in terms of the
impugned order. An amount of Rs.4,8,150/- has been deposited
with the respondent no.1. In case the appeal under Section 7I of
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the said Act is filed a and request for waiver of statutory deposit is
made, the amount already deposited shall be taken into
consideration in that regard.
(c) Needless to state that the amount already deposited
shall be treated as deposit under provisions of 7O of the said Act
subject to further orders of the Tribunal.
(d) Rule is made absolute in aforesaid terms. No costs.
//MULEY//
ig JUDGE
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