Elecon Engineering Company ... vs The Regional Provident Fund ...
2021 Latest Caselaw 17676 Guj

      C/SCA/6061/2020                               JUDGMENT DATED: 24/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 6061 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                    Sd/-
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?                                             NO

2      To be referred to the Reporter or not ?                          YES

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                                 NO

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution               NO
       of India or any order made thereunder ?

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                 ELECON ENGINEERING COMPANY LIMITED
                                Versus
              THE REGIONAL PROVIDENT FUND COMMISSIONER
================================================================
Appearance:
IG JOSHI(8726) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
MR AV NAIR(5602) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 24/11/2021
                              ORAL JUDGMENT

Draft amendment is allowed in terms of draft. The same shall be carried out forthwith.

1. Rule. Learned advocate Mr.A.V.Nair waives service of notice of rule for the respondent no.1.

2. In the present writ petition the petitioner has challenged the orders dated 08.04.2019, 23.08.2019 and 24.10.2019. It is the case of the petitioner that the petitioner, though had filed a review application against

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the order dated 08.04.2019 passed by the Regional Commissioner while exercising powers conferred under Section 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short "the Act"), the review filed under Section 7B of the Act was not entertained and further when he filed an appeal before the Tribunal challenging both the orders, the same is not registered by the Registrar, Central Government Industrial Tribunal cum Labour Court, Ahmedabad (CGIT).

3. Learned advocate Mr.Ishan Joshi has submitted that in fact the Registrar, CGIT cannot refuse for registration of the appeal as not maintainable since it is the function of the Tribunal while considering the appeal filed by the appellant against the order passed under Section 14B of the Act. Thus, he has submitted that the impugned orders may be set aside.

4. Per contra, learned advocate Mr.A.V.Nair has submitted that filing of the review application against the order dated 08.04.2019 by the petitioner was ill-conceived and the same was not maintainable in view of the provisions of Section 17B of the Act and the only option left for the petitioner was to challenge the order dated 08.04.2019 by filing an appeal before the Tribunal. It is submitted that since the remedy is already available to the petitioner, the present writ petition may not be entertained.

5. I have heard the learned advocates appearing for the respective parties.

6. It is not in dispute that the Regional Provident Fund Commissioner has passed the order dated 08.04.2019, while exercising the powers under Section 14B of the Act. The petitioner, thereafter, filed an application for review against the said order and by the order dated 23.08.2019, the Regional Provident Fund Commissioner, Ahmedabad has rejected the

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review application, as such remedy is not available under the provisions of Section 7B of the Act. Thereafter, the petitioner filed an appeal before the Tribunal challenging both the orders. The order dated 08.04.2019 passed in the proceedings under Section 14B and Section 7B of the Act as well as the order dated 23.08.2019 passed in review petition.

7. The petitioner filed a review application under Section 7B of the Act. A bare perusal of Section 7B reveals that the review orders, which are passed passed under Section 14B of the Act cannot be reviewed under Section 7B of the Act. Unquestionably, in the present case, the initial order dated 08.04.2019 was passed while exercising powers under Section 14B of the Act. The only remedy available against the order passed under Section 14B of the Act is of filing an appeal before the Tribunal under the provisions of Section 7I, which reads as under:-

7-I. Appeals to Tribunal.--(1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub-section (4), of section 1, or section 3, or sub-section (1) of section 7A, or section 7B [except an order rejecting an application for review referred to in sub-section (5) thereof], or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order.

8. Thus, the petitioner was required to challenge the order dated 08.04.2019 by filing an appeal before the Tribunal.

9. Learned advocate Mr.Nair, at this stage, has submitted that the petitioner is also required to file an application for condonation of delay when the appeal is preferred by the petitioner, however, no such application is filed.

10. It is not in dispute that the petitioner filed an appeal challenging both the orders. May be the order dated 23.08.2019 passed in review application cannot be challenged for want of jurisdiction as the same was

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not maintainable, however, the petitioner has undoubtedly prayed for quashing and setting aside the original order dated 08.04.2019 passed under Section 14B of the Act in his appeal. When the present petitioner preferred an appeal before the CGIT and the Registrar, CGIT has refused to register the appeal. The Rojkam produced by the petitioner dated 24.10.2019 reads as under:-

"An appeal has been received from M/s. Elecon Engineering Co. Ltd. against rejection letter dtd 23/8/19 regarding application u/s.7B of the Act over orders passed u/s.14B and 7Q. The present appeal is not admitted as the same is not maintainable u/s.7B(5) of the Act'52"

The Registrar of the CGIT cum Labour Court, Ahmedabad has refused to register the appeal by observing that the same is preferred against the letter dated 23.08.2019 preferred under Section 7B of the Act over the order passed under Section 14B of the Act. The Registrar has also observed that the appeal is not admitted as the same is not maintainable under Section 7B of the Act.

11. In the considered opinion of this Court, the Registrar has acceded his duties and function. The Registrar CGIT by making such observation in the Rojkam has also fallen in error since the same is an incorrect observation as the prayer clause of the appeal filed by the petitioner also reveals that the petitioner has challenged the original order dated 08.04.2019 passed under Section 14B of the Act.

12. At this stage, it would be appropriate to incorporate the Rule 5 of the Tribunal (Procedure) Rules, 1997 (for short "the Rules") . The same reads as under:-

"5. Presentation and scrutiny of appeals.-- (1)The Registrar or the officer authorised by him under rule 4, shall endorse on every appeal the date on which it is presented or deemed to have been presented under that rule and shall sign the

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endorsement.

(2)If, on scrutiny, the appeal is found to be in order it shall be duly registered and given a serial number.

(3) If the appeal, on scrutiny, is found to be defective and the defect noticed is formal in nature, the Registrar may allow the party to rectify the same in his presence and if the said defect is not formal in nature, the Registrar may allow the appellant such time to rectify the defect as he may deem fit.

(4) If the appellant fails to rectify the defect within the time allowed under sub-rule (3), the Registrar may by order and for reasons to be recorded in writing, decline to register the appeal and inform the appellant accordingly."

As directed in Rule 5, more particularly Sub Rule 3, it is the duty of the Registrar to allow the party to rectify any defect, if such defect is not formal in nature. The Rules nowhere stipulate of non-registration of the appeal by passing the orders as passed in the case of the petitioner by observing that the same is not maintainable. It is the duty of the Registrar to notify such defect to the concerned appellant and time is required to be granted to the appellant to remove such defect and in the present case, as noticed hereinabove, the Registrar has acceded his duties by observing that the appeal is not maintainable. Thus, the Registrar has acted or placed himself at par with the Tribunal by making such observations with regard to non maintainability of the appeal, as it is neither his function nor his duty to make such observation. The Registrar has in fact hijacked the powers of the Tribunal by observing with regard to non maintainability of the appeal.

13. Thus, the Registrar, of CGIT cum Labour Court, Ahmedabad is hereby directed to register the appeal of the petitioner. The same shall be registered and placed before the Tribunal for its adjudication. With regard to delay aspect, it will be open for the petitioner to file an application seeking condonation of delay. If such application is filed, the same shall also be registered and placed along with appeal. The Tribunal is directed

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to pass appropriate orders on the application filed for condonation of delay, after hearing the concerned parties.

14. The present application is partly allowed. Rule is made absolute to the aforesaid extent.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK