M/S. Lachhmandas & Co. vs Uoi & Ors.
2015 Latest Caselaw 431 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+            W.P.(C) 484/2015 and CM No. 816/2015 (for directions)

%                            Judgement pronounced on: 16.01.2015

      M/S M LACHHMANDAS AND CO.                             ..... Petitioner
                         Through:     Mr.Rajiv Shukla, Advocate alongwith
                                      Mr.Shubham S.Saxena and
                                      Ms.Anamika Saraff, Advocates.

                         versus

      UOI AND ORS                                     ..... Respondents
                         Through:     Mr. Sanjeev, Advocate for R-1/UOI.
                                      Mr.R.R. Rajesh, Advocate alongwith
                                      Ms.Prasanta Varma, Advocate for R-
                                      2 and R-3.

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT (ORAL)

CM No. 817/2015 (Exemption) Allowed, subject to just exceptions.

The application stands disposed of.

W.P.(C) 484/2015 and CM No. 816/2015 (for directions)

1. Issue notice.

2. Mr. R.R. Rajesh, Advocate accepts notice on behalf of the respondent.

3. The petitioner in the present petition has submitted that the proceedings under Section 14 B/7A & 7Q of the Employee's Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act)

were initiated by the respondent no.3 against the petitioner for the period March-2008 to March-2014.

4. The Assistant Provident Fund Commissioner passed an order under Section 14 B and 7Q of the Act against the petitioner. On 24 th December, 2014, the petitioner preferred the statutory appeal under Section 7(I) of the Act against the said order dated 05.12.2014 which was received by him on 10th December, 2014.

5. It is submitted by the petitioner that the respondent no. 1 i.e. Central Government of India has not appointed any Presiding Officer of the Appellate Tribunal and the result is that the statutory Appeals are not being heard by Appellate Tribunal.

6. It is further submitted on behalf of the petitioner that the EPF Appellate Tribunal is a National Appellate Tribunal and there is only one Appellate Tribunal in the entire Nation. Since the respondent no. 1 has failed to appoint the Presiding Officer of the statutory Appellate Tribunal, a writ petition bearing WPC No. 8429/2014 was filed by the Bar Association of the Tribunal before this court which is listed before the Hon'ble the Chief Justice of this court for 27th January, 2015.

7. It is submitted that there is every apprehension to the petitioner that respondent nos. 2 & 3 may initiate coercive actions for recovery of the amounts assessed by the Assistant Commissioner.

8. It is submitted that the act of respondent no.1, by not appointing the Presiding Officer of the only Appellate Tribunal, amounts to denial of lawful legal rights of statutory Appeal to the petitioner and it is prayed that the respondent nos. 2 and 3 be restrained from taking any coercive measure

against the petitioner in pursuance to the impugned order till the pendency of the statutory appeal bearing ATA No. 1345 (9) of 2014 filed before the statutory Appellate Tribunal.

9. It is also submitted that on earlier occasions also, the same situation had arisen and in the case of Arihant Threads Ltd Vs. Union of India, W.P.( C) No. 333/2004, a Division Bench of Punjab and Haryana High Court had passed an order directing all the authorities to maintain status quo in such matters where the Chair of the Appellate Tribunal is lying bare and vacant. The relevant portion of the judgment is reproduced hereunder:-

".... if such appeals are filed and proof thereof is shown to the Recovery Officer, then said officer would not affect recovery of the demand issued under Section 7-A of the Act till decision of the stay application."

"In comity to the different orders passed by various Benches of this Court and to avoid unnecessary prejudice to the Petitioner resulting from inaction on the part of the Union for such a considerable period, it is in the interest of justice to restrain the Respondents from taking any coercive steps to recover the amount which is the subject matter of these writ petitions."

10. It is also contended that the ratio of the said order has been followed by this court in the matter of Elbee Services Vs. Union of India, WPC No. 10369/2004.

11. It is not disputed on behalf of the respondent no.1 that Presiding Officer of the statutory Tribunal has not yet been appointed by it. This fact is also not disputed on behalf of the respondent nos. 2 and 3. It is also admitted that the petitioner has filed the statutory Appeal and it could not be

heard for the absence of the Presiding Officer of Appellate Tribunal.

12. In view of Section 7(I) of Employee's Provident Fund and Miscellaneous Provision Act, 1952, it is a statutory right of the petitioner to file an Appeal before the Tribunal.

13. Unfortunately, his appeal could not be heard since the Tribunal is not headed by its Presiding Officer and the Government has failed to appoint the Presiding Officer. The statutory right of the petitioner needs to be protected.

14. As brought to my notice by the petitioner, in the earlier petitions mentioned above, this right of the petitioner in these petitions, on the same facts and circumstances, had been protected.

15. In view of the ratio of the above-mentioned judgments, I hereby direct the respondent nos. 2 and 3 not to take any coercive measure pursuant to the impugned order till statutory appeal is being heard by the Tribunal.

16. However, nothing in this order shall tantamount to expression of opinion on the merit of case of parties before Appellate Tribunal.

With this direction, the present petition stands disposed of. CM No. 816/2005 also stands disposed of.

Dasti.

DEEPA SHARMA (JUDGE) JANUARY 16, 2015 Sapna