Delhi High Court
M/S. Writers And Publishers Pvt. ... vs Union Of India And Ors. on 13 March, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2435/2015 & CM No. 4379/2015
% Judgement pronounced on: 13.03.2015
M/S. WRITERS AND PUBLISHERS PVT. LTD. ..... Petitioner
Through: Mr.Atul T.N., Advocate alongwith
Mr.Rajiv Shukla, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Vivekanand Mishra, Advocate for
R-1.
Mr.R.R..Rajesh, Advocate for R-2
and R-3.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT (ORAL)
CM No. 4380/15 (for exemption)
Allowed subject to just exceptions.
The application stands disposed of.
W.P.(C) 2435/2015 & CM No. 4379/2015
1. Vide the present writ petition, the petitioner has challenged the order
dated 2nd February, 2015 under Section 7A of the Regional Provident Fund
Commissioner.
2. Vide impugned order, the Regional Provident Fund Commission had
proceeded with the hearing of the matter and fixed the case for 23 rd
February, 2015 with direction to the petitioner to provide all the relevant
records for verifications by the squad of Area E.Os. Further, directions were
issued to the squad to submit its report after verification of the records on or
before next date of hearing. On the request of the petitioner that it had not
been provided the copy of calculation sheet submitted by the Employees
Union, directions were issued to supply the same within a week, through
speed post or by hand, to the petitioner. The petitioner was also directed to
submit its comments on the report dated 08.12.2014 of the Area E.O. on the
next date of hearing. It is also ordered by Regional Provident Fund
Commission in its order that in case the petitioner fails to comply with the
directions, the matter be proceeded ex-parte.
3. It is also apparent from the said order that the petitioner had raised
objections regarding the enquiry under Section 7A of the Provident Fund
Act and one of the objections for continuation of the enquiry under Section
7A of the Provident Fund Act was primarily based on the plea that the
establishment had filed IA No. 87-88 /2013 in Special Leave Petition (Civil)
No. 8398-8399 of 2005 before Supreme Court. Vide this order, Regional
Provident Fund Commission has turned down the request of the petitioner to
defer the proceedings before him till the final judgment of the Supreme
Court on the ground that the proceedings under Section 7A of the Provident
Fund Act neither have been stayed nor have been ordered to be kept in
abeyance by the Supreme Court and thus proceeded with the enquiry under
Section 7A of the Act.
4. Against this order of the Regional Provident Fund Commission, the
petitioner had preferred an appeal before the appellate authority which is
registered as ATA No. 244(4)/ 15.
5. It is submitted that the respondent no.3 is forcing the petitioner to
subjudicate to his ways, without affording its chance to present its statutory
appeal, with illegal and unwarranted determination under Section 7-A (2) of
the Act. The respondent is proceeding for determination without
adjudication of the issue of applicability and without waiting for the
outcome before EPF Appellate Tribunal.
6. It is submitted that in the case of Arihant Threads Ltd. Vs. union of
India bearing writ petition no. CWP No. 3331/2000, a Division Bench of
Punjab and Haryana High Court had passed an order dated 25.03.2004,
whereby directing all the authorities to maintain status quo in such matters
where the Chair of the Appellate tribunal is lying bare and vacant and this
court has also issued similar directions in various Writ Petition (Civil) Nos.
648/2015, 800/2015 & 1402/2015.
7. On these facts, it is prayed by the petitioner that the appropriate writ
of Mandamus be passed against the respondent restraining them from taking
any further steps in pursuance of the impugned order dated 2 nd February,
2015. During the course of the arguments, it is submitted that in the appeal
before the appellate authority, the petitioner had sought the stay of the
proceedings before the Regional Provident Fund Commission.
8. Mr.Vivekanand Mishra, Advocate for respondent no. 1 and
Mr.R.R..Rajesh, Advocate for respondent nos. 2 and 3 are present on
advance notice. They have also addressed the arguments. It is submitted on
behalf of the respondents that the present writ petition is not maintainable on
the ground that it has been filed against an interim order. It is further argued
that petitioner has concealed the material information from the notice of the
court since it has not placed on record the copy of the order dated
23.02.2015, for which date the Regional Provident Fund Commission had
fixed the case on 02.02.2015.
9. It is further submitted that matter is subjudice before Regional
Provident Fund Commissioner. It is further submitted that by way of writ of
Mandamus, this court cannot restrain the public authority to continue with
the proceedings before it as per the law. It is also contended that even an
appeal filed before the appellate authority is not maintainable under the Act.
10. Learned counsel for the petitioner has submitted that the appeal is
maintainable.
11. I have given due consideration to the rival contentions of the parties.
The petitioner has come before this court for a writ of Mandamus. It is
apparent that the writ of Mandamus lies to secure the performance of a
public or statutory duty. It is in the form of a command directed to a person
or an inferior tribunal requiring to do a particular thing specified to his office
and is in the nature of public duty. The court passes a Writ of Mandamus
for enforcement of fundamental rights.
12. In the present case, it is apparent that petitioner has come up before
this court, seeking the Writ of Mandamus whereby restraining Regional
Provident Fund Commission from continuing with the enquiry under Section
7A of the Provident Fund Act. The petitioner relied to the above-mentioned
case laws the findings in those cases is not applicable on the facts of this
case. There is no alleged recovery ordered against the petitioner pursuant to
the impugned order. Also, it is not the case of the petitioner that
continuation of proceedings before the Regional Provident Fund
Commissioner is violative of any statute or is in violation of any of his
fundamental rights. From the facts of this case, it is apparent that the
petitioner does not want Regional Provident Fund Commission to proceed
with an enquiry under Section 7A of Provident Fund Act.
13. Only ground seeking the issuance of direction to Regional Provident
Fund Commissioner, not to proceed to take any action pursuant to his order
dated 02.02.2015 is the filing of appeal. Even the appellate courts are
empowered to continue hearing appeals from interim orders without staying
the proceedings of the lower courts.
14. In the present writ petition, the following is the prayer of the
petitioner:-
"(a) Issue appropriate Writ of Mandamus or any other appropriate
writ(s) against the Respondent No.2 thereby restraining them from
taking any further step in pursuance of the impugned order dated
2.2.2015 against the petitioner till the pendency of statutory appeal
bearing no. ATA No. 244 (4)/15 filed before the Appellate Tribunal,
New Delhi."
15. From the impugned order, it is clear that the Regional Provident Fund
Commissioner had fixed the next date as 23.02.2015 and on that he must
have taken the action pursuant of his directions in order dated 02.02.15.
16. The petitioner has not placed on record the order passed by Regional
Provident Fund Commission on 23rd February, 2015. No explanation has
come forward from the petitioner on this concealment. The only conclusion
that can be drawn is that the petitioner has done it intentionally, in order to
conceal an order which would defeat his claim in the present writ petition.
17. The petitioner has failed to show existence of any circumstance which
needs intervention of this court.
In view of the above, the present writ petition is dismissed with no
order as to costs.
CM No. 4379/2015
In view of the above order, the application has become infructuous.
The application stands dismissed.
DEEPA SHARMA
(JUDGE)
MARCH 13, 2015
sapna
