M/S Prabhat Zarda Factory (Co.) vs Assistant Provident Fund ...
2017 Latest Caselaw 4960 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Reserved on: 30th August, 2017
                                         Pronounced on: 12th September, 2017

+     W.P.(C) 5362/2017

      M/S PRABHAT ZARDA FACTORY (CO.)           ..... Petitioner
                   Through : Ms.Rashmi Chopra, Mr.D. K.
                             Chaubey, Mr.Pankaj Singh and
                             Ms.Aisya, Advocates.

                              versus

      ASSISTANT PROVIDENT FUND
      COMMISSIONER                           ..... Respondent
                   Through : Mr.Keshav Mohan and Mr.Piyush
                             Choudhary, Advocates.


CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

Rev.Pet.262/2017

1. This Review Petition is filed by petitioner against an order dated 23.06.2017 passed by this Court during vacations, which read as under:-

"This writ petition is qua issuance of a direction against the respondent restraining it from taking any coercive measures against the petitioner especially in terms of assessment order dated 13.01.2017 passed under Section 14B and 7Q of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (the Act) till the petitioner is heard and till the time the

application of petitioner for grant of waiver of dues is considered and appropriate order is passed by Employee Provident Fund Tribunal, Delhi or any designated Court. The petitioner has also sought direction quashing the attachment order/coercive order dated 24.04.2017 and 31.05.2017 issued under Section 8B to 8G of the Act.

It is submitted that an order under Section 14B was passed on 13.01.2017 whereby the appellant was directed to pay an amount of Rs.4,88,765/- within 15 days of the receipt of the order and in case of non-payment of damages and interest as awarded it shall attract interest @ 12% per annum, per the said order. Further an order dated 13.01.2017 under Section 7Q of the Act was also passed.

It is submitted by learned counsel for the petitioner that they have already filed an appeal against the impugned orders before the Employee Provident Fund Appellate Tribunal but since the tribunal is not functioning, so the coercive action be stayed. The petitioner is inclined to deposit the amount stated in impugned order along with interest within four weeks from today. Hence, subject to the deposit of the amount aforesaid with the respondent and without prejudice to rights of either parties, the attachment order shall remain stayed till the Appellate Tribunal/Appellant Authority starts functioning.

The writ petition does not survive and is accordingly disposed of in terms of the above along with the pending application.

Order dasti under the signature of the Court Master."

2. Learned counsel for petitioner says that though second para of the above order only speaks of an amount of `4,88,765/- viz the amount

payable under of Section 14B dated 13.01.2017 and though the third para of the impugned order notes the submission of the learned counsel for petitioner that petitioner is inclined to deposit the amount, but there is no clarity as to if the amount of `4,88,765/- due under Section 14B of the Act is to be deposited or an amount of `2,91,656/- due per order dated 13.01.2017 under Section 7Q of the Act is to be deposited.

3. It is submitted by learned counsel for petitioner that the counsel gave the undertaking on misconception of the fact that only an amount due under Order under Section 7Q of the Act needs to be deposited as is the practice in the Employees Provident Fund Appellate Tribunal. Two such orders of the Tribunal have been annexed with the petition, which read as under:-

Order dated 24.05.2017 passed in ATA No.309(4)/2017

"Appeal against order passed u/s14-B admitted and appeal against order passed u/s 7-Q dismissed. There shall be interim stay of further proceedings. The case is listed for 17.08.2017 for filing counter reply on behalf of respondent."

Order dated 25.05.2017 passed in ATA No.319(4)/2017

"Present appeal filed on behalf of appellant u/s7-I of the EPF & MP Act, 1952 (the Act) challenging order dated 27.12.2016 passed by respondent u/s14-B and 7-Q of the Act.

Delay is within extended period. Delay condoned.

Appeal against order under section 14-B is admitted. Appeal against order u/s 7- Q is dismissed. There shall be interim stay of further proceedings. The case is listed for 22.08.2017 for filing counter reply on behalf of respondent."

4. Hence it is alleged that impugned order dated 23.06.2017 be clarified/reviewed to the extent that only an amount due under Section 7Q needs to be deposited.

5. On the other hand, the learned counsel for respondent says that attachment/coercive orders dated 24.01.2017 and 31.05.2017 have been issued under Section 8B to 8G of the Act and thus the respondent has travelled to a stage beyond what is contemplated in orders under Section7Q and under section14B of the Act and since Section 7(I) of the Act did not provide for an appeal against the orders under Section 7Q, Sections 8B to 8G of the Act, so the contention of the petitioner that they intend to avail the remedy before the Central Government Industrial Tribunal (as is now) is, even otherwise, not sustainable since no appeal against order under section 7Q or under sections 8B to 8G of the Act would lie in any circumstance.

6. The argument of the respondent though appears to be in line with Section 7(I) of the Act, but considering such an argument in a review of an earlier order passed by this Court where permission to contest such appeal before the Tribunal was though granted but subject to deposit of an amount would never be permissible. Looking at the maintainability of such an appeal, filed in some another forum would be going beyond the scope of this review which per se is limited. What is to be seen here is if there exist an error apparent on the face of the order dated 23.06.2017 or the consent was ever given under any misconception or not.

7. In this review petition, the petitioner has simply asked for clarification of the amount to be deposited so that he can pursue his remedy in appeal, if at all it is maintainable. The question if such an appeal is maintainable would essentially be a question to be considered by the Tribunal hearing the appeal and not by this Court. As alleged by the petitioner such an appeal has already been filed against the orders passed under Section 7Q and Section 14B of the Act. In review, his only argument is though he had given consent, but it was limited to an amount payable under Section 7Q of the Act. It is also alleged that the penalties levied upon him are only qua delay in deposit of the provident fund and not on its failure to pay such amount.

8. Admittedly once consent is given, it cannot be withdrawn. However, if one peruse the impugned order dated 23.06.2017, it actually refers to only an amount of `4,88,765/-, though in its later part it notes of an order passed under Section 7Q. Hence the petitioner cannot allege that he was under any misconception that his consent was only for deposit of `2,91,656/-, since such amount was never mentioned while dictating the order. I may agree to the extent that there could be some confusion qua the amount to be deposited i.e. if it was only `4,88,765/- (dictated), or `7,80,421/- which includes the amount of `2,91,656, as it was neither dictated nor was recorded separately in the order.

9. Thus considering only an amount of `4,88,165/- is noted in figures in the order; also that now Central Government Industrial Tribunal has since been created and is hearing such appeals; and that the amount sought to be recovered is only qua penalties for late deposit and not for

non deposit of provident fund, the interest of justice shall suffice if the petitioner deposit an amount of `4,88,765/- as is mentioned in the upper limb of the impugned order, within fifteen days from today and on deposit of such amount, the coercive process under orders dated 24.04.2017 and 31.05.2017 of the appropriate authority shall remain stayed till the appellate authority viz Central Government Industrial Tribunal takes up the appeal and hear it on its maintainability, which issue be decided within a month by the Tribunal. To this extent, the order dated 23.06.2017 stands modified.

10. With above directions, the review petition stands disposed of.

YOGESH KHANNA, J SEPTEMBER 12, 2017 M