Bombay High Court
Narendra Tarachand Agrawal vs Assistant Provident Funds ... on 6 June, 2016
Bench: A.S. Chandurkar
wp2526.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT PETITION NO. 2526 OF 2013
1] Narendra Tarachand Agrawal,
aged 52 yrs. Occu. Service, Branch
Manager of Main Branch of Akola
Janta Commercial Coop. Bank Ltd.
Akola, Old Cotton Market Akola,
Distt. Akola.
2] The Akola Janta Commercial
Coop. Bank Ltd. Akola, Main
Branch Akola through its
Managing Director. PETITIONERS.
VERSUS
1] Assistant Provident Funds
Commissioner (Recovery Officer)
Sub Regional Office, Plot No. 15-B,
Raghuraj Arcade, Civil Lines, Akola.
2] Union of India, Ministry of
Labour, through Secretary,
New Delhi.
3] M/s Krishi Vaibhav Agencies,
A Partnership Firm, through
its Partner, Dr. Subhashchandra
Wamanrao Korpe, Korpe Hospital,
Civil Lines, Akola. RESPONDENTS.
Shri R. L. Khapre Advocate for the petitioners.
Dr R. S. Sundaram Advocate for the respondent no. 1.
Shri N. R. Tekade Advocate h/f Shri M. G. Sarda Advocate for
respondent no.3.
wp2526.13
CORAM: A. S. CHANDURKAR J.
Dated : JUNE 06, 2016.
ORAL JUDGMENT:
Rule. Heard finally with consent of the learned counsel for
the parties.
2] The petitioners are aggrieved by the show cause notice dated
28.05.2012 issued by the respondent no.1 calling upon the Branch
Manager of the petitioner no.2 Bank to show cause as to why a warrant
of arrest should not be issued for executing the recovery certificate
issued under Section 8-B of the Employees' Provident Fund and
Miscellaneous Provisions Act, 1952 (for short, the said Act). The
subsequent order passed under Section 8-F of the said Act as well as
the communication dated 10/04/2013 are also under challenge.
3] Shri R. L. Khapre, the learned counsel for the petitioners
submitted that the show cause notice dated 28.05.2012 had been
challenged by the petitioners in Writ Petition no. 3560 of 2012 but the
said writ petition was dismissed on 11.09.2012 after granting liberty to
the petitioners to reply to the show cause notice. He submitted that
this order was maintained in a Letters Patent Appeal preferred by the
petitioners. In the meanwhile the petitioners submitted their reply to
the show cause notice on 05.10.2012. But prior to that, an order
wp2526.13
under Section 8-F of the said Act came to be passed. He submitted that
in effect the reply of the petitioners to the show cause notice was not
considered and the amount in question was sought to be recovered. He
submitted that the petitioners could not be treated as an establishment
for recovering the dues that were liable to be paid by the respondent
No.3.
Dr R. S. Sundaram, the learned counsel for the respondent
no. 1 supported the impugned order. According to him though the
initial order under Section 8-F of the said Act had been passed on
26.09.2012, the reply submitted by the petitioners to the show cause
notice was considered and thereafter on 10.04.2013 the earlier order
passed under Section 8-F of the said Act was maintained on the ground
that the same was in accordance with law. He submitted that the
contentions raised in the reply to the show cause notice had been duly
taken into consideration by the respondent No.1. He submitted that
the petitioners were liable to pay the amount of contribution as
determined.
Shri N. R. Tekade, the learned counsel holding for Shri M. G.
Sarda, learned counsel for the respondent no.3 sought adjournment of
the writ petition. However, considering the nature of order proposed to
be passed, said request was not accepted.
4] Perusal of the earlier order passed in Writ Petition
wp2526.13
No.3560/2012 on 11.09.2012 clearly indicates that this Court had
intended the petitioners to reply to the show cause notice dated
28/05/2012. On that ground, the writ petition was not entertained
and liberty was granted to the petitioners to file reply to said notice. It
was not intended by said order that the petitioners should be given
post-decisional hearing.
Though a reply was submitted by the petitioners on
05.10.2012, the order under Section 8-F of the said Act was passed
prior to that. It is thus apparent that the order under Section 8-F of the
said Act has been passed without due opportunity to the petitioners.
Though it is submitted on behalf of the respondent no. 1 that the stand
taken in the reply to the show cause notice has been considered while
passing the subsequent order on 10.04.2013, it cannot be said that
there was due application of mind in view of the fact that the
respondent no. 1 was only attempting to justify the action already taken
by furnishing additional reasons. When it was intended that a reply to
the show cause notice should be submitted, the reply as filed should
have been taken into consideration before passing the order under
Section 8-F of the said Act. Absence thereof has vitiated the entire
exercise. Considering the reply as submitted, the interests of justice
would be served if the respondent no. 1 is directed to reconsider the
reply dated 05.10.2012 filed by the petitioners to the show cause notice
wp2526.13
dated 28.05.2012 and thereafter pass fresh orders under Section 8-F of
the said Act.
5] In view of aforesaid the following order is passed;
The order dated 26.09.2012 passed under Section 8-F of the
said Act and the communication dated 10.04.2013 issued by the
respondent no.1 are quashed.
The respondent no.1 shall after hearing the petitioners and
the other concerned parties pass fresh orders under Section 8-F of the
said Act. The petitioners shall appear before the respondent no.1
Authority on 22.06.2016. It is clarified that this Court has not taken
into consideration the respective contentions on merits and the
respondent no.1 shall independently consider the issues involved.
Rule is made absolute in aforesaid terms. No costs.
JUDGE
svk
