Mayur Veneer & Plywood Industries ... vs Union Of India & Ors
2021 Latest Caselaw 5227 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                               APELLATE SIDE


   The Hon'ble JUSTICE SUVRA GHOSH


                             W.P.A. 13368 of 2021

                   Mayur Veneer & Plywood Industries & Anr.
                                     Vs.
                            Union of India & Ors



   For the Petitioner:                 Mr. Soumya Majumder, Adv.
                                       Mr. Siddhartha Sharma, Adv.
                                       Ms. Ujjaini Chatterjee, Adv,
                                       Ms. Sukanya Dutta, Adv,
                                       Ms. Shalini Basu, Adv.,


   For the Union of India.             Mr. Shiv Chandra Prasad, Adv.,

   For the Respondent Nos. 2-4:        Mr. Anil Kr. Gupta, Adv.,

Heard on: 22.09.2021

Date: 29.09.2021

SUVRA GHOSH, J. :-

1. The petitioners' grievance is violation of natural justice. The petitioners'

establishment runs business in the name and style of Mayur Veneer and

Plywood Industries. A proceeding under section 7A of the Employees

Provident Fund and Miscellaneous Provisions Act, 1952 was initiated

against the petitioners and respondent no. 3 passed a final order in the said

proceedings on 30-01-2020 determining an amount of Rs. 27,41,943/- as

dues to be paid by the petitioners. The petitioners, being aggrieved by the

order, filed a review petition under section 7B of the Act of 1952 and by an

order dated 30th June, 2021 the review petition was disposed of and inquiry

under section 7B concluded. The petitioners were directed to pay the

outstanding dues immediately. Being aggrieved by the said order, the

petitioners have filed the present writ petition. The prayer of the petitioners

in the writ petition is set out:-

a) "A writ of or in the nature of Certiorari

commanding the respondents and each one of

them, their men, agents, assignees and

subordinates to certify and transmit to this

Hon'ble Court the records of the case including

the impugned order dated 30.06.2021 issued by

the respondent No. 3 being Annexure C and the

certificate issued by the recovery officer by

respondent no. 4 being Annexure H herein, so

that conscionable justice may be administered by

quashing the same;

b) A writ of or in the nature of Mandamus

commanding the respondents and each one of

them, their men, agents, assignees and

subordinates to rescind, recall, revoke and/or

withdraw the impugned order dated 30.06.2021

and the Recovery certificate dated 09.07.2021

issued by the respondent No. 3 being Annexure C

and by respondent no.4 being Annexure H,

forthwith;

2. It is submitted on behalf of the petitioners that though the petitioners

initially participated in the review proceedings, they went unrepresented on

successive dates of hearing due to demise of the daughter of the learned

advocate representing the petitioners before the authority. There was also a

direction upon the department to supply copy of certain documents to the

petitioners but such direction was not complied with. The petitioners not

being represented on a few occasions before the authority, the authority

concluded the proceedings under section 7B of the Act. The proceeding was

not disposed of on merits and the petitioners were deprived of placing their

case before the authority due to reasons beyond their control. It is further

submitted that in terms of the order impugned, respondent no. 4 has

initiated recovery proceedings vide Memo No. RO /HWR /Recovery /WB

/36716 /8F /472 dated 3rd August, 2021 and has taken steps by attaching

the bank accounts of petitioner no. 1. The petitioners submit that there has

been violation of natural justice and the petitioners ought to have been

heard before the proceeding under section 7B was disposed of.

3. Learned counsel has placed reliance on a judgment in Regional Provident

Fund Commissioner (II) West Bengal v. Vivekananda Vidyamandir and

Others reported in 2019 SCC Online SC 291

4. Learned advocate appearing for the provident fund authority (respondent

nos. 2, 3 and 4) has drawn the attention of the court to section 7- I of the

1952 Act and has submitted that as the petitioners have not preferred any

appeal against the order impugned, the writ petition is not maintainable.

Learned advocate further submits that in view of the provisions under

section 7(O) of the Act, the petitioners were required to deposit 75% of the

amount due as determined under section 7A of the Act on filing the appeal

which has prompted the petitioners to take recourse to extraordinary

jurisdiction of this court under article 226 of the Constitution of India,

which is not enjoined in law. Learned advocate has also taken this court to

paragraph 26 of the Employees Provident Funds Scheme, 1952 which deals

with classes of employees entitled and required to join the fund.

5. The Union of India is represented and submits that in view of section 7B (5)

of the Act, an appeal lies against the order impugned.

6. The respondents placed reliance on a judgment of a coordinate bench of this

court in M/s. SKG Pulp and Paper Mills Private Limited & Anr. v/s.

Assistant Provident Fund Commissioner (Compliance) & Ors. in WPA No.

33775 of 2013 wherein a co-ordinate bench of this court did not entertain

the prayer of the petitioners for setting aside the order passed under section

7B of the 1952 Act. The judgment of the Hon'ble Appellate Court indicates

that the Hon'ble single bench judgment was affirmed.

7. I have considered the submissions made on behalf of both the parties.

8. At the outset the issue regarding maintainability of the writ petition should

be dealt with. 7- I of the Employees Provident Fund and Miscellaneous

Provisions Act, 1952 is set out:-

"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."

9. In other words, an appeal lies against an order under section 7B of the Act

except an order rejecting an application for review referred to in sub-

section (5). Sub-section (5) debars an appeal against an order rejecting an

application for review. As the application under section 7B of the Act, 1952

was rejected, the forum of appeal was not available to the petitioners.

Learned advocate for the respondents have referred to section 7(O) of the

1952 Act and has submitted that in order to avoid deposit of 75% of the

due amount on filing an appeal, the petitioners have taken recourse to the

present petition. Such submission made on behalf of the respondents does

not hold water as there is no provision for appeal against an order of

rejection passed under section 7B of the 1952 Act. As such, the writ

petition is maintainable.

10. The petitioners filed a review application under section 7B of the 1952 Act

against the order passed by respondent no. 3 under section 7A of the Act

determining an amount of Rs. 27,41,943/- as dues to be paid by the

petitioners. The order impugned passed under section 7B of the Act on 30th

June, 2021 demonstrates that though the petitioners were represented

before the authority on some dates of hearing, there was no representation

on behalf of the petitioners on several dates from 16-06-2021 and the

hearing was concluded on 30-06-2021. The reason for such non

representation has been attributed to the death of a daughter of learned

advocate representing the petitioners, on 01-06-2021. It is evident from the

order impugned that the proceeding was concluded only on the ground

that the petitioners were not represented on three consecutive dates of

hearing and not on merits. Sufficient cause being made out by the

petitioners for not being able to be represented in the proceeding, the

review petition under section 7B of the Act is required to be disposed of on

merit after affording reasonable opportunity of hearing to the interested

parties including the petitioners. The ratio decidendi of the judgment of the

coordinate bench of this court relied upon by the respondent nos. 2, 3, and

4 can be distinguished from the present case. The said judgment deals

with a fact situation where the review petition under section 7B of the 1952

Act was disposed of on merits after considering the cases made out by the

parties. The present case is otherwise. Here the review proceeding was

closed only due to non appearance of the petitioners and no finding was

recorded with regard to the issue in dispute. The assessment made under

section 7A of the Act was only upheld.

11. The judgment of the Hon'ble Supreme Court in Regional Provident Fund

Commissioner (II) West Bengal v. Vivekananda Vidyamandir and Others

reported in 2019 SCC Online SC 291 deals with the issue involved in the

petition under section 7A and 7B of the Act on merits. Without

commenting on the merits of the issues involved, the authority should be

directed to consider the review petition upon hearing the parties and

dispose of the same on merits by a reasoned order. It is also reported that

in terms of the order impugned, respondent no. 4 has initiated recovery

proceeding and the bank accounts of petitioner no. 1 has been attached.

12. Having considered the submissions made on behalf of the parties and the

sole objection raised by the respondents that the writ petition is not

maintainable as no appeal has been preferred by the petitioners against

the order impugned, this court is of the view that as discussed earlier,

there being no scope for appeal against an order of rejection of a review

petition under section 7B of the Act, no alternative efficacious remedy was

available to the writ petitioners and as such, the writ petition is

maintainable.

13. Regard being had to the material on record, particularly the order

impugned, this court holds that the order impugned dated 30th June, 2021

is required to be set aside and the review petition be heard afresh upon

granting an opportunity of hearing to all the parties including the

petitioners.

14. Accordingly the order impugned dated 30th June, 2021 is set

aside/cancelled. The respondent nos. 2, 3, and 4 are requested to consider

the review petition under section 7B of the Act on merits after giving

reasonable opportunity of hearing to all the parties including the

petitioners, in accordance with law.

15. The recovery proceedings being Memo No. RO /HWR /Recovery /WB

/36716 /8F /472 dated 3rd August 2021 be stayed till disposal of the

proceeding under section 7B of the Act. The attachment of bank accounts

of petitioner no. 1 be withdrawn and the petitioners be at liberty to operate

the said accounts.

16. It is made clear that this court has not gone into the merits of the case and

the respondent authorities are at liberty to deal with the merits

independently and dispose of the proceeding by a speaking order.

17. W.P.A. 13368 of 2021 is disposed of accordingly.

18. There shall however be no order as to costs.

19. Urgent certified website copies of this judgment, if applied for, be supplied

to the parties expeditiously on compliance with the usual formalities.

(Suvra Ghosh, J)