Calcutta High Court (Appellete Side)
M/S Jiaganj Azimganj Gas Agency vs Employees Provident Fund ... on 12 April, 2023
12.04.2022.
Item No.27
Court No.550
Saswata
W.P.A. 6018 of 2023
M/s Jiaganj Azimganj Gas Agency
versus
Employees Provident Fund Organization & Ors.
Mr. Sanjoy Saha
Mr. Subhasish Bhattacharya
Mr. Probal Sarkar
Mr. Sk. Kiran
...For the petitioner
Mr. Anil Kumar Gupta
... For the PF authorities
The present writ application has been filed,
challenging the order dated 25th January 2023 passed
under Section 7A of the Employees Provident Fund
and Miscellaneous Provisions Act, 1952 (hereinafter
referred to as the "said Act"). It is submitted on behalf
of the petitioner that, notwithstanding the order
impugned recording that summons had been served
on the petitioner, the petitioner in fact had not been
served with any such summons. No notice of hearing
was also served on the petitioner. It is submitted on
behalf of the petitioner that the aforesaid order has
been passed without giving any opportunity of hearing.
The petitioner's contention has not been considered by
the hearing officer prior to passing of the order dated
25th January 2023. He still further submits that the
petitioner only employs 7 number of employees.
Unfortunately, such fact also could not be put across
2
to the hearing officer, since opportunity of hearing was
not given to the petitioner.
In the facts and circumstances of the case, he
says that the impugned order should be set aside and
during pendency of the writ application, the impugned
order should be stayed.
Mr. Gupta, learned advocate representing the
Provident Fund authorities submits that the
petitioner's establishment is covered under the
provisions of the said Act, since the year 2011. In
support thereof, he relies on a communication dated
21st October 2011. He says that an inspection had
been carried out at the petitioner's premises.
Unfortunately, these facts have all been suppressed.
He also relies on a summon dated 4th November 2015,
summoning the petitioner to appear before the
authorities on 27th November 2015 at 11.00 A.M. He
says that the hearing officer had duly recorded in his
order that notwithstanding service of summon on the
petitioner, the petitioner chose not to appear. He
further says that the petitioner has an alternative
remedy in the form of an appeal. This Court in exercise
of its extraordinary writ jurisdiction, is not called upon
to examine the correctness of an order passed under
Section 7A of the said Act.
In support of this contention, he places reliance
on a judgment delivered by the Hon'ble Division Bench
3
of this Court in the case of Asstt. P.F.
Commissioners, Employees' Provident Fund
Organization versus Pawan Kumar Agarwala &
Ors.1.
Heard the learned advocates appearing for the
respective parties and considered the materials on
record. It, prima facie, appears from the statement
made by the petitioner that the petitioner had not been
served with a copy of notice or summons in connection
with the proceedings, initiated by the Provident Fund
authorities under Section 7A of the said Act. Although,
Mr. Gupta, learned advocate representing the
Provident Fund Authorities by placing reliance on a
notice dated 21st October 2011 has attempted to, inter
alia, claim that the petitioner is covered by the
provisions of the said Act, and summons in connection
with hearing of the proceedings under Section 7A of
the said Act was served on the petitioner on 4th
November 2015, the aforesaid documents do not, in
any way, absolve the hearing officer of his
responsibility to serve notice of hearing, especially
when, the hearing was conducted on diverse dates
over a span of 8 years. Although the order dated 25th
January, 2023 records that the hearing on 18th May,
2017 could not take place due to shifting of office from
Jangipur to Berhampore and the hearing was
1
(2008) 1 CHN 469
4
rescheduled, no notice of change of venue appears to
have been served on the petitioner.
Mr. Gupta, learned advocate appearing for the
Provident Fund authorities also could not demonstrate
before this Court that the aforesaid summons dated
4th November, 2015 or any other subsequent notice
had been served on the petitioner. It is elementary that
before any order is passed, the person should be
heard. Denial of minimum opportunity to represent
one's case tantamounts denial of principles of natural
justice and consequently vitiates the entire enquiry
and the conclusion reached by the authorities.
The judgment relied upon by Mr. Gupta, learned
advocate appearing for the Provident Fund authorities
does not, in any way, assist the respondents. The facts
are distinguishable. It is well settled that a judgment is
an authority for what it decides. In paragraph 8 of the
judgment the Hon'ble Division Bench has recorded
that alternative remedy is not an absolute bar to
invoke the writ jurisdiction. Having regard to the facts
of this case especially, where there is violation of
principles of natural justice, alternative remedy in the
form of an appeal would not be a bar, for this Court to
exercise jurisdiction. The appellate remedy would also
not help the petitioner, inasmuch as the petitioner's
stand is not reflected in the aforesaid order.
Since, prima facie it appears that the petitioner
has been prevented from representing its case, I am of
the view that the aforesaid order dated 25th January
2023 passed under Section 7A of the said Act cannot
be enforced against the petitioner.
In view thereof, the order dated 25th January
2023 shall remain stayed.
The respondents shall be at liberty to use
affidavit-in-opposition to the present writ application
within 4 weeks from date. Reply, if any, thereto be filed
within 3 weeks thereafter.
Liberty to mention after expiry of the period for
exchange of affidavits.
(Raja Basu Chowdhury, J.)
