Delhi High Court
Arun Khanna vs The Provident Fund Commissioner, ... on 24 October, 2019
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision :- 24.10.2019
+ W.P.(C) 3855/2014
ARUN KHANNA ..... Petitioner
Through: Mr.Deepak Tyagi, Adv.
versus
THE PROVIDENT FUND COMMISSIONER, EMPLOYEES
PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE AND
ANR ..... Respondent
Through: Mr.Rajesh Manchanda & Mr.Rajat
Manchanda, Advs. for RPFC.
Mr.Siddhartha Shankar Ray with
Mr.Varun Nischal, Advs. for
applicant Mr.Pradeep Gupta with
applicant in person.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
C.M. No.27793/2019 (for modification of order dated 07.04.2016)
1. This is an application filed by one Mr.Pradeep Gupta, an ex-
employee of M/s. A.V. Engineering Pvt. Ltd. seeking modification of
the order dated 07.04.2016 passed by this Court. Under the said
order, this Court had directed that the amount realised by the
respondent no.1 from the petitioner by way of attachment be not
WP (C) No.3855 /2014 Page 1 of 6
disbursed without further orders of the Court in this regard.
2. It has been averred in the application that the applicant is an ex-
employee of M/s. A.V. Engineering Pvt. Ltd. and had served the said
organisation for almost 17 years, but he is yet to receive his complete
provident fund dues. The applicant has prayed that the amount due to
him towards his provident fund dues be released in his favour along
with the applicable interest, from the amount of Rs.18,28,737/-
recovered by the respondent no.1 from the petitioner during the
pendency of the present petition, as the respondent no.1 is not
releasing the same because of the order passed by this Court on
07.04.2016 prohibiting it from releasing the said amount to the
employees.
3. On 12.07.2019 this Court had, after hearing the learned counsel
for the parties, modified the order dated 07.04.2016 by directing the
respondent no.1 to consider the applicant's prayers and pass
appropriate orders in respect of his provident fund dues. Pursuant
thereto, the said respondent has filed an affidavit stating that the
applicant is entitled to receive a sum of Rs.1,04,980/- along with
interest of Rs.1,14,592/- from M/s. A.V. Engineering Pvt. Ltd. as his
provident fund dues.
4. Before the present application was taken up, learned counsel for
the petitioner, on instructions from the petitioner who is present in
Court, fairly submits that even though the petitioner may not be liable
to discharge the dues of M/s. A.V. Engineering Pvt. Ltd. under the
assessment order, but in view of the grave personal difficulties being
faced by the applicant as set out in the application, viz., the
WP (C) No.3855 /2014 Page 2 of 6
applicant's daughter is stated to be suffering from cancer, the
petitioner has no objection to the amount as determined by respondent
no.1 being released to the applicant.
5. In view of the fair stand taken by the petitioner, it is directed
that a sum of Rs.2,19,572/- be released in favour of the applicant by
respondent no.1 from the amount of Rs.18,28,737/- recovered from
the petitioner by way of attachment.
6. It is made clear that neither the stand taken by the learned
counsel for the petitioner nor the direction to release the said amount
would be treated as an admission on the petitioner's part that he has
any liability towards the applicant or to the respondent no.1 on behalf
of M/s. A.V. Engineering Pvt. Ltd.
7. Needless to say, it will be open for the applicant to claim any
further dues from M/s. A.V. Engineering Pvt. Ltd., in accordance with
law.
8. The application is disposed of in the aforesaid terms.
W.P.(C) 3855/2014
9. The present writ petition seeks to assail the attachment order
dated 23.10.2013 as also the show cause notice dated 18.11.2013
whereunder the petitioner has been asked to show cause as to why
warrants of arrest should not be issued against him.
10. The primary ground raised by the petitioner in the writ petition
is that since the assessment order in question has been passed against
M/s A.V. Engineering Pvt. Ltd. and not him, he is not connected with
the said order in any manner and, resultantly, he is not liable to pay
WP (C) No.3855 /2014 Page 3 of 6
the provident fund dues as assessed by the respondent no.1. It has,
therefore, been contended that as the petitioner is not liable to
discharge the dues payable under the assessment order, no warrants of
arrest or show cause notice could be issued against him.
11. However, after some arguments, learned counsel for the
petitioner submits that since the petitioner's father Mr.Y.P. Khanna,
who was a Director in M/s A.V. Engineering Pvt. Ltd. had expired on
30.12.2011, i.e., before the assessment order came to be passed under
Section 7A of the Employees Provident Funds and Miscellaneous
Provisions Act, 1952 ('the Act' for short) on 05.11.2012, the same
could not be assailed before the Employees Provident Fund Appellate
Tribunal within the statutory period of appeal either by M/s A.V.
Engineering Pvt. Ltd. or by the petitioner. He further submits that as
the name of M/s A.V. Engineering Pvt. Ltd. now stands struck off
from the Register of Companies, the petitioner who is being asked to
discharge the dues on its behalf is, even today, desirous of assailing
the assessment order in accordance with law. He, however, prays that
since the prescribed statutory time period for preferring an appeal
against the same has already expired during the pendency of the writ
petition, that he may be granted time to file an appeal. He further
submits that since the respondent has already attached a sum of
Rs.18,28,737/- from the petitioner's tenant as against the principal
amount of Rs.6,70,717/- assessed in terms of the order dated
05.11.2012, the Tribunal may be directed to consider the petitioner's
appeal without necessitating him to make any further deposit.
12. Learned counsel for the respondent does not dispute any of the
WP (C) No.3855 /2014 Page 4 of 6
aforesaid contentions advanced on behalf of the petitioner. He
however, reiterates that the petitioner is also liable to discharge the
dues of M/s. A.V. Engineering Pvt. Ltd., as per the terms of the
assessment order.
13. I have considered the submissions of the learned counsel for the
parties and with their assistance, perused the record.
14. Without commenting on the question as to whether the
petitioner is liable to discharge the liabilities of M/s. A.V.
Engineering Pvt. Ltd., (the employer), of which the petitioner's father
was a Director, I am of the considered view that it would be in the
interest of justice to permit the petitioner to prefer a statutory appeal
before the Tribunal, so that the quantum of dues payable by M/s. A.V.
Engineering Pvt. Ltd. can be appropriately examined by the Appellate
Authority, i.e. the Tribunal. There is merit in the petitioner's
contention that owing to the pendency of the present petition and the
demise of his father, Mr. Y.P. Khanna, prior to passing of the
impugned order, no appeal could be filed before the Employees
Provident Fund Appellate Tribunal within the prescribed time.
15. In these circumstances, especially keeping in view the fact that
the present petition has remained pending before this Court for the
last five years, during which period an interim protection had been
granted in favour of the petitioner, as also the fact that the petitioner is
only seeking an opportunity to assail the assessment order by way of a
statutory appeal, interest of justice demands that the petitioner be
granted four weeks' time to prefer a statutory appeal assailing the
order dated 05.11.2012, in accordance with law. As a sum of
WP (C) No.3855 /2014 Page 5 of 6
Rs.18,28,737/- has already been attached by the respondent no.1, out
of which, a sum of Rs. 2,19,572/- has been directed to be released to
Sh. Pradeep Gupta, the balance amount of Rs.16,09,165/- available
with the respondent no.1 will be retained by the said respondent till
final adjudication of the appeal and will be treated as due compliance
with the condition of pre-deposit, as required under Section 7Q of the
Act.
16. It is made clear that the present order has been passed in the
peculiar facts and circumstances of the case and will not be treated as
a precedent.
17. The writ petition, along with pending application, is disposed of
in the aforesaid terms.
REKHA PALLI, J.
OCTOBER 24, 2019
gm
