Gujarat High Court
Perfect Borng Pvt. Ltd vs Employees Provident Fund ... on 8 February, 2021
Bench: Gita Gopi
C/LPA/1487/2015 JUDGMENT DT.:08.02.2021
PERFECT BORNG PVT. LTD. Vs. EMPLOYEES PROVIDENT FUND ORGANIZATION & 2
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1487 of 2015
In
R/SPECIAL CIVIL APPLICATION NO. 6068 of 2015
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
In
R/LETTERS PATENT APPEAL NO. 1487 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
==============================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
PERFECT BORNG PVT. LTD.
Versus
EMPLOYEES PROVIDENT FUND ORGANIZATION & 2 other(s)
==============================================================
Appearance:
MR PRABHAKAR UPADYAY(1060) for the Appellant(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 3
MS E.SHAILAJA(2671) for the Respondent(s) No. 1,2
==============================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/02/2021
Page 1 of 6
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C/LPA/1487/2015 JUDGMENT DT.:08.02.2021
PERFECT BORNG PVT. LTD. Vs. EMPLOYEES PROVIDENT FUND ORGANIZATION & 2
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This intra-Court appeal is filed against the order of the learned
Single Judge dated 02.11.2015 passed in Special Civil Application
No.6068 of 2015, whereby the learned Single Judge dismissed the Writ
Petition filed by the appellant - petitioner, which was directed against the
impugned order dated 04.03.2015 passed by the respondent no.2.
2. The proceedings under Section 7(B) of the Provident Fund Act,
1952 were initiated against the said Company M/s. Perfect Borng Pvt.
Ltd. Para 37 of the order of the learned Single Judge impugned before us
is quoted below for ready reference.
37. At this stage, a question arises as to whether the
ground of alternative remedy is available, the Court is
of the view that when the very authority and
jurisdiction of the authority is under challenge, there
was no requirement of relegating the petitioner for
alternative remedy and the decision cited at the bar on
behalf of respondent no.3, as well as respondent nos.1
and 2, would be of no avail to them, as the Court is of
the considered view that there exists a case for
C/LPA/1487/2015 JUDGMENT DT.:08.02.2021
PERFECT BORNG PVT. LTD. Vs. EMPLOYEES PROVIDENT FUND ORGANIZATION & 2
approaching this Court, as the substantive challenge
was to the effect that there existed no jurisdiction of
the authority after entertaining the review when 45
days' period was over. However, on merits, when the
Court is examining this issue, it was found absolutely
of no substance but that in itself would have not been
sufficient for relegating the petitioner without
examining this issue at all. This Court do not propose
to examine the rest of the order on the aspects of
merits and therefore, the Court is leaving it to the
petitioner to agitate the same before the appellate
authority if it so advised. But, the appellate authority
now will have no ground to reopen or reexamine the
issue so far as the limitation aspect of jurisdiction is
concerned, as the learned advocate for the petitioner
has consciously chosen not to avail the remedy and
invite order of the Court on these aspects. Hence, so
far as the appeal is concerned, it may be permitted to
be filed only on account of the merits and not on the
ground of the lack of jurisdiction of the authority, as
the Court is of the considered view that the authority
did have jurisdiction to entertain the review and
C/LPA/1487/2015 JUDGMENT DT.:08.02.2021
PERFECT BORNG PVT. LTD. Vs. EMPLOYEES PROVIDENT FUND ORGANIZATION & 2
therefore, the petition is required to be disposed of
with aforesaid observations. The respondent no.3 is
permitted to withdraw the amount of Rs.25,000/
deposited by the petitioner in this Court vide order
dated 16th April 2015. Notice discharged."
3. Learned counsel for the Appellant - Petitioner, Mr. Prabhakar
Upadyay, has submitted before us that the said Company has since gone
in Insolvency proceedings and the case being Case No.C.P/148/2019 is
pending before the National Company Law Tribunal, Ahmedabad
Bench. He submitted that since Insolvency Resolution Professional (IRP)
has been appointed in the matter, therefore, he has no further instruction
from the said Company to argue the present Appeal on merits and it is for
the I.R.P. to now deal with the litigation on behalf of the said Company in
Insolvency.
4. Learned counsel for the respondent Nos.1 and 2, Ms. E. Shailaja V.
Pillai, submitted that the impugned order for assessment of P.F. Dues of
the said Company under Section 7(A) of the Act was passed on
08.06.2015 and the same was placed on record before the learned Single
Judge also. Therefore, the learned Single Judge has relegated the
Appellant - Petitioner Company to the alternative remedy before the P.F.
C/LPA/1487/2015 JUDGMENT DT.:08.02.2021
PERFECT BORNG PVT. LTD. Vs. EMPLOYEES PROVIDENT FUND ORGANIZATION & 2
Tribunal under Section 7(I) of the said Act. She urged that the Appellant
- Petitioner has abused the process of this Court by filing Writ Petition
even though the Appellant - Petitioner Company had an alternative
remedy under the Act. She submitted that so far no Appeal appears to be
filed by the Appellant - Petitioner, despite rejection of the Writ Petition
by the learned Single Judge way back in the year 2015, on 02.11.2015.
5. Having heard the learned counsel for the parties, we are of the clear
opinion that the present Letters Patent Appeal filed against the order
dated 02.11.2015 of the learned Single Judge is without any merit and
deserves to be dismissed. The learned Single Judge, in our opinion, was
justified in relegating the Appellant - Petitioner to the alternative remedy
under Section 7(I) of the Act to agitate the question of facts before the
said Tribunal. By way of subsequent development, since now the said
Company has gone in Insolvency proceedings under I.B.C. (Insolvency
and Bankruptcy Code, 2016) and the matter is pending before the
National Company Law Tribunal, Ahmedabad Bench, we leave it open
for the concerned Authority, in-charge of the said proceedings before the
National Company Law Tribunal, Ahmedabad Bench to avail such
remedy of Appeal before the Tribunal in terms of Section 7(I) of the Act.
If such Appeal is preferred within Eight Weeks from today, we request
learned Tribunal to decide the Appeal on merits in accordance with law
C/LPA/1487/2015 JUDGMENT DT.:08.02.2021
PERFECT BORNG PVT. LTD. Vs. EMPLOYEES PROVIDENT FUND ORGANIZATION & 2
and not raise any objection about limitation in filing the Appeal and
subject to compliance with other usual conditions, if any, applicable
under the said Act of 1952. The present Letters Patent Appeal is
accordingly disposed of with aforesaid liberty and directions to the
parties. No order as to costs. A copy of this order be sent to the Appellant
- Petitioner Company and National Company Law Tribunal, Ahmedabad
Bench for information.
6. In view of the above, connected Civil Application stands disposed
of accordingly.
(DR. VINEET KOTHARI, J.)
(GITA GOPI, J.)
Pankaj
