M/S. Skg Pulp & Paper Mills Pvt. ... vs Assistant Provident Fund ...
2021 Latest Caselaw 1520 Cal

                    IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                           APPELLATE SIDE




BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur

                             W.P.A. NO.33775 of 2013


                      M/s. SKG Pulp & Paper Mills Pvt. Ltd. & Anr.

                                       -vs-

            Assistant Provident Fund Commissioner (Compliance) & Ors.




For the petitioners                           : Mr. Soumya Majumder


For the Provident Fund Authorities            : Mr. Anil Kr. Gupta

Heard on                                      : 05.02.2021

Judgment on                                   : 23.02.2021




Ravi Krishan Kapur, J.:

   1. The petitioners assail the orders dated 28 May 2013 and 31 July,

      2013 respectively passed under Section 7A and Section 7B of the

      Employees' Provident Fund and Miscellaneous Provisions Act, 1952

      ("the Act") and the consequential actions taken pursuant thereto.

   2. The petitioners are carrying on business of manufacturing kraft paper.

      The factory of the petitioner establishment is situated at village

      Sherpur, P.S.-Amta, Howrah.
                                    2



3. The petitioner establishment was allotted Code no.WB/49849 under

   the Act. On 9 May, 2012, the respondent authorities initiated a

proceeding under Section 7A of the Act against the petitioner

establishment. The petitioner establishment was duly informed of the

initiation of such proceedings and participated in the same. By an

order dated 28 May, 2013 the Assistant Provident Fund Commissioner

passed a final order determining an amount of Rs.38,87,303/- as

principal payable by the petitioner establishment for the period from 1

November, 2011 to 3 March, 2013 and a further sum of Rs.6,05,532/-

as interest under Section 7Q for the aforesaid period.

4. Being aggrieved by that order, the petitioner filed an application for

review under Section 7B of the Act. By an order dated 31 July 2013,

the review application was dismissed on the ground that there were no

grounds warranting interference with the order dated 31 July, 2013.

5. Aggrieved by both the orders, the petitioners filed this petition. The

single ground urged at the hearing of this petition was that of natural

justice. It was said that the petitioner establishment had filed a letter

dated 12 March, 2014 requesting the respondent authorities to supply

a copy of the report relied on by the respondent authorities and

described as "voluminous in nature" in the order dated 28 May, 2013.

Since this report had not been supplied, it was submitted on their

behalf that there had been a violation of natural justice. By an interim

order dated 6 March, 2018, the respondent authorities were

restrained from realizing the amount stated in the communication

dated 22 August, 2013 from the petitioner establishment.

6. On behalf of the respondent authorities it was urged that this petition

was liable to be dismissed and there were no grounds whatsoever

warranting any interference with the impugned orders. It was urged

that having filed a review application and not taken recourse by way of

an appeal under Section 7I of the Act the petitioners were estopped

from enlarging the scope of this petition. It was urged that the scope

of a review application being more limited than that of an appeal, the

Court ought to be circumspect whilst entertaining any other disputes

raised by the petitioners at this stage. Moreover, it was urged by the

respondent authorities, that the petitioners had deliberately chosen to

file a review application to circumvent the precondition of depositing

the mandatory 75% as stipulated under section 7-0 of the Act. In any

event, it was submitted on behalf of the respondents that there was no

merit on the grounds of natural justice urged by the petitioner

establishment and the same was belated, afterthought and malafide.

7. It was further also that the petitioner establishment had been duly

provided with the computation sheets and calculation of the provident

fund dues as assessed under Section 7A of the Act in their order dated

28 May 2013. Accordingly, it was submitted on behalf of the

respondent authorities that the petition was liable to be dismissed and

the respondent authorities granted liberty to take expeditious steps for

recovery of their dues.

8. I have heard the parties and have considered the pleadings filed on

their behalf. As noted earlier, the only ground urged before me by the

petitioners seeking interference with the impugned orders is that of

natural justice. It was submitted on their behalf, that the impugned

order under Section 7A of the Act records that the respondent

authorities had taken into account a voluminous report prepared by

them and this report had never been submitted to the petitioners.

Accordingly, the impugned orders were liable to the set aside.

9. I find from the pleadings that this aspect of natural justice and in

particular the demand for the voluminous report relied on by the

respondent authorities was made for the first time in a supplementary

affidavit filed on behalf of the petitioners on 31 March, 2014. In this

context, it is pertinent to mention that this point was neither raised in

the review application nor in the writ petition. On the contrary, [at

page-5 of the review application] the only point which was raised by

the petitioner establishment was that "notice of hearing had been

served on the petitioner establishment for the period January 2011 to

March 2012 but an order was passed for the period January 2011 to

March 2013 which could not be accepted in the eye of law as it

violates the principles of natural justice and was in excess of

jurisdiction". Significantly, this point was not urged before me at the

time of hearing of this petition. There was no other aspect of natural

justice complained of in the review petition by the petitioners. I also

find that the point of voluminous records not having been made

available to the petitioner establishment and of there being any

violation of the principles of natural justice had not been pleaded in

the writ petition. This point apparently surfaced for the first time in a

supplementary affidavit filed on behalf of the petitioner.

10. As a proposition of law, it is well settled that a petitioner cannot be

permitted to make out a new case or to take a new ground in a

supplementary affidavit for which there is no factual foundation or

basis in the original writ petition. In the absence of an amendment to

the original writ petition, I am of the view that a Court ought not to

take into consideration a plea newly raised by way of a supplementary

affidavit and which particularly has no factual foundation in the writ

petition. Ordinarily, the parties ought not to be permitted to travel

beyond their pleadings and make out a new case on the basis of a

supplementary affidavit (Bharat Bhari Udyog Nigam Ltd. vs Jessop And Co.

Ltd. Staff (2003) 4 CompLJ 333 Cal). Such procedure not only diminishes

the value of pleadings and prevents the parties from being taken by

surprise and being prejudiced but also prevents the Court from being

misled by a piecemeal presentation of facts.

11. In any event, I find no substance nor merit in the point of natural

justice urged by the petitioners. It appears from the records of the

proceedings before the respondent authorities that the petitioner

establishment had been provided an ample and adequate opportunity

and had appropriate notice of the proceedings initiated by the

respondent authorities. Actually, I find that the establishment was

represented but chose to be indifferent. They refused to co-operate

with the respondent authorities. They chose not to provide the

authorities with any information or records pertaining to their

business. They deliberately and intentionally did not assist the

authorities in providing them with the relevant materials sought for.

The impugned order dated 28 May, 2005 clearly records that the

petitioner establishment had full and proper notice of the enquiry

conducted by the respondent authorities. However, it could not justify

or substantiate the details of information supplied to them. Infact, it

would seem that the petitioner establishment failed to offer any

compliance or information of their workers and contractors.

12. It is settled law that the scope for interference in a review application

is much narrow than an appeal. The Court issuing a writ of certiorari

acts in exercise of a supervisory and not appellate jurisdiction. One

consequence of this is that a Court will not review findings of fact

reached by the inferior Court or Tribunal, even if they be erroneous

[Hari Vishnu Kamath v. Syed Ahmad Ishaque and others:

[1955]1SCR1104]. I also find from a perusal of the impugned orders

that both the orders are reasoned orders and an adequate, full and

proper opportunity of hearing had been afforded to the petitioner

establishment. In fact, in the order dated 28 May, 2013 passed under

Section 7A of the Act it has been found that the petitioner

establishment was "a chronic defaulter" and "had sought to suppress

the factual position before the inspecting authority". Moreover, it was

also found that the petitioner establishment had consistently made

"belated payments" towards their provident fund dues. Additionally,

the impugned order passed under section 7B clearly records that an

"appropriate and adequate opportunity was duly afforded to the

petitioner establishment".

13. For the foregoing reasons, I am of the view that there is no illegality

or perversity or contravention of any law in the impugned orders

which warrants any interference by this Court. The writ petition being

WPA 33775 of 2013 stands dismissed. Interim orders stand vacated.

14. Certified copy of this judgment, if applied for, be given to the parties

upon compliance with all necessary formalities.

(Ravi Krishan Kapur, J.)