Delhi High Court
Central Board Of Trustees vs Indcon Projects & Equipments Ltd on 25 October, 2017
$~2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 844/2015 & CM No.19050/2015 (for stay).
CENTRAL BOARD OF TRUSTEES ..... Petitioner
Through: Mr. Rajesh Manchanda and Mr. Rajat
Manchanda, Advs.
versus
INDCON PROJECTS & EQUIPMENTS LTD ..... Respondent
Through: Mr. S.K. Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 25.10.2017
1. This petition under Article 227 of the Constitution of India impugns
the order [dated 4th January, 2008 in ATA No.593(4)/2007 of the Presiding
Officer, Employees' Provident Fund Appellate Tribunal, New Delhi] passed,
in the absence of the petitioner and allowing the appeal preferred by the
respondent under Section 7-I of the Employees' Provident Fund &
Miscellaneous Provisions Act, 1952 against the order dated 6th August, 2007
of the Assistant Provident Fund Commissioner (APFC), Delhi passed under
Section 14-B of the Act, imposing damages for delayed remittances of PF
dues. The Tribunal has, vide the impugned order, reduced the damages
imposed to up to 75% as assessed by the APFC in the order dated 6 th
August, 2017.
2. Notice of the petition was ordered to be issued and the counsel for the
respondent has been appearing.
3. The counsels have been heard.
4. The counsel for the petitioner has drawn attention to page 69 of the
paper book, being a copy of the handwritten order dated 17 th September,
2007 of Shri R.L. Koli, Presiding Officer of the Tribunal, admitting the
appeal aforesaid preferred by the respondent, and directing issuance of
notice thereof to the petitioner returnable on 7th January, 2008 and subject to
the respondent depositing 30% of the amount assessed by the APFC to be
payable, staying the operation of the order appealed against.
5. The contention of the counsel for the petitioner is that though notice
of the appeal was ordered to be issued for 7 th January, 2008 but the appeal
was taken up for hearing and allowed on 4th January, 2008 itself, in the
absence of the petitioner.
6. The counsel for the respondent has intervened to contend that this
petition filed first on 14th August, 2015, has been preferred after more than
seven years of the impugned order and is liable to be dismissed on this
ground alone. Reliance is placed on para 5 of Abhinavodhanda Vidya
Sankarabharati Vs. Poonapati Ramayogi Reddi AIR 1986 SC 1511.
7. I have enquired from the counsel for the respondent, what has he to
say on the factum of, though the notice of the appeal having been issued for
7th January, 2008, the appeal having been taken up and decided on 4th
January, 2008, in the absence of the petitioner to whom notice of the appeal
was issued for 7th January, 2008.
8. I have further enquired from the counsel for the respondent as to how
the respondent appeared before the Tribunal on 4 th January, 2008 when in
the presence of the respondent, notice had been issued for 7th January, 2008.
It has further been enquired that even if the respondent appeared for some
reason on 4th January, 2008, why did the respondent not inform the Tribunal
that notice had been issued for 7th January, 2008 and the appeal should be
taken up and heard on that date.
9. The counsel for the respondent states that he was not the counsel
before the Tribunal and is thus unable to answer the aforesaid questions save
for stating that the cause list of the Tribunal is available on the internet and
the counsel for the respondent must have appeared on 4 th January, 2008
seeing the matter in the cause list.
10. The counsel for the petitioner on enquiry, whether the cause list is
available on the internet, states that he entertains doubt that in the year 2007-
08 the cause list of the Tribunal was available on the internet.
11. The counsel for the respondent also, on pointed enquiry, states that he
cannot be sure whether in 2007-08 cause list was so available though states
that for the last five years, it is available on internet.
12. On further enquiry, whether Mr. R.L. Koli who is the author of the
order dated 4th January, 2008 is still in service or has retired, the counsel for
the respondent states that Mr. R.L. Koli has retired.
13. In the aforesaid scenario, the only inference can be that Mr. R.L. Koli,
Presiding Officer of the Tribunal, in collusion with the respondent, took up
the appeal before the date for which notice thereof had been issued and in
the absence of the petitioner, to whom notice had been issued for a
subsequent date, proceeded to decide the appeal in favour of the respondent.
14. Once that is so, no amount of delay on the part of the petitioner, even
if not capable of being explained, can entitle the impugned order to stand
and / or allow the respondent to avail the benefit thereof. Such fraud and
illegality transcends all the said technicalities.
15. The petition is thus allowed. The impugned order dated 4th January,
2008 is set aside.
16. The appeal, being ATA No.593(4)/2007 of the Employees' Provident
Fund Appellate Tribunal, is restored to the same position as it was
immediately before 4th January, 2008 and the parties are directed to appear
before the Tribunal.
17. Both counsels inform that now the jurisdiction of the Tribunal is
being exercised by the Central Government Industrial Tribunal (CGIT) and
the counsel for the respondent states that the appeal would fall in the
jurisdiction of CGIT-1.
18. The parties to appear before CGIT-1 on 5th December, 2017.
19. The petition is disposed of.
I refrain from imposing costs.
RAJIV SAHAI ENDLAW, J
OCTOBER 25, 2017
'pp'..
