Madras High Court
The Managing Director vs The Regional Provident Fund ... on 6 July, 2021
W.A.No.355 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
W.A.No.355 of 2020
and C.M.P.No.5969 of 2020
The Managing Director,
M/s. A&F Overseas Trade Limited,
Uruvaiyar Village, Mangalam Road,
Mangalam Post (Vila Villianur),
Pondicherry- 605 110 .. Appellant
Vs
1.The Regional Provident Fund Commissioner,
Employees' Provident Fund Organization,
Sub-Regional Office,
No.101, 100 Feet Road, Cholan Nagar,
Olandai, Keerapalayam,
Puducherry - 605 004.
2.The Assistant Provident Fund
Commissioner (Comp),
Employee's Provident Fund Organization,
Sub-Regional Office,
No.101, 100 Feet Road, Cholan Nagar,
Olandai, Keerapalayam,
Puducherry - 605 004.
3.The Secretary,
Ministry of Labour & Employment Department,
Government of India,
Shram Shakti Bhawan,
Rafi Marg, New Delhi - 110 001. .. Respondents
Page 1 of 8
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W.A.No.355 of 2020
Appeal filed under Clause 15 of Letters Patent against the order
dated 06.11.2019 made in W.P.No.28363 of 2013.
For Appellant : Mr.S.Ravindran, Sr.Counsel
for Mr.P.Nehru
For Respondents : Mrs.V.J.Latha
for R1 and R2
Mr.Rajesh Vivekanandan for R3
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
The present appeal has been filed against the order of the
learned single Judge, who while holding that the writ petition as filed is
not maintainable without exhausting the alternative remedy,
nonetheless went into the merits of the case and dismissed the writ
petition.
2.On 31.05.2020, the Assistant Provident Fund Commissioner
viz., the second respondent passed an order under Section 7A of the
Employees Provident Fund Act against the appellant. The assessment
was made both for regular employees and for trainees. A review was
filed under Section 7B of the Act by the appellant, which was also
dismissed by the order dated 23.09.2013. The aforesaid order is
reproduced hereunder:
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W.A.No.355 of 2020
The assessing authority who passed the order under
Section 7A was aware of the writ petition filed before the
Madras High Court in W.P.No.11733 of 2004 against the
assessment of the dues duly including the stipend paid to
the trainees and taken into account while passing the
orders.
Further, it is noted that you could not discover any
new and important matter or evidence and all the matters
already discussed were within your knowledge. No new
reasons or records were also produced for considering your
present request.
It is therefore appears that no sufficient ground to
entertain the application for review and hence it is hereby
rejected. You are advised to remit the sum of
Rs.29,57,472/- (Rupees Twenty Nine Lakh Fifty Seven
Thousand Four Hundred and Seventy Two only) within 15
days of receipt of this communication.
3.Thereafter, a writ petition was filed in W.P.No.28363 of 2013
by the appellant. The learned single Judge after going into the merits
exhaustively including the report submitted by the Enforcement Wing
of the respondent, held that on merit, the appellant does not have a
case. Incidentally, the learned single Judge also took note of the fact
that no appeal has been filed. Challenging the same, the present
appeal has been filed.
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W.A.No.355 of 2020
4.Learned counsel appearing for the appellant, placing reliance
upon the order of the Division Bench in The Palliyadi Handloom
Weavers' Co-operative Production and Safe Society Limited
No.2489 Vs. The Assistant Provident Fund Commissioner and
Others (2021 LLR 439), submitted that the learned single Judge
committed an error in going into the merits of the case after holding
that the writ petition is not maintainable without exhausting the
alternative remedy. The order passed under Section 7A of the Act is
cryptic one and the same was reiterated under review. Under Article
226 of the Constitution of India, writ petition can be maintained when
an order having civil consequence does not record the reasons. The
appellant does not feel shy of exhausting the alternative remedy
especially when certain amount has already been paid in compliance
with the interim order passed by the Court, provided further time is
granted. Learned senior counsel placed reliance upon Section 14 of the
Limitation Act in support of the said contention.
5.Learned counsel appearing for the respondent submitted that
the provisions of Limitation Act do not apply. The learned single Judge
considered the relevant materials in dismissing the writ petition. The
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W.A.No.355 of 2020
legislation being a welfare one, any further delay would substantially
affect the interest of the beneficiaries. Hence no interference is
required.
6.We are of the view that the appellant deserves a chance. An
appeal is to be maintained only after payment of 75% of the amount.
However, the quantum of amount as aforesaid can be reduced in a
given case by the appellate forum while entertaining the appeal.
7.The learned single Judge in our considered view ought not to
have gone into the merits especially the orders passed under Sections
7A and 7B indicate adequate reasons. It is well settled that in a writ of
certiorari, the writ court is not expected to supplement the reasons.
Similarly, an order having civil consequence has to be sustained on its
own and therefore any material or affidavit subsequent to the said
order under challenge will not cure the defect.
8.In such view of the matter, we are of the view that having
found that the appellant has not exhausted the alternative remedy, the
learned single Judge could have left the matter at that stage. We
further find that Section 14 of the Limitation Act stands on a different
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W.A.No.355 of 2020
footing than Section 5. Section 5 speaks of condonation of delay in
exhausting the alternative remedy. The period fixed under the statute
cannot be extended by invoking Section 5, however, it stands on a
different footing. When it comes to application of Section 14, this will
apply to a proceeding before the Tribunal which has got all the
trappings of the Court.
9.In such view of the matter, we are inclined to interfere with the
order of the learned single Judge insofar as the merits of the case is
dealt with. The appellant is permitted to file an appeal within a period
of four weeks from the date of receipt of a copy of this judgment, on
complying with the payment of 50% of the amount demanded by the
respondent/EPF, for which, due deduction granted by reducing amount
paid pursuant to the orders of this Court. The amount of Rs.2,97,397/-
is also liable for deduction provided the appellant satisfies the
Appellate Tribunal on the said payment having been made. As and
when such an appeal is filed, the same will have to be taken up and
decided on merit without rejecting it on the ground of limitation. We
request the Appellate Tribunal to dispose of the appeal within a period
of four months from the date of receipt of a copy of this judgment and
all the issues are left open to the decided in the appeal to be filed.
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W.A.No.355 of 2020
10.With the above observation and direction, the writ appeal
stands disposed of. No costs. Consequently, connected miscellaneous
petition is closed.
(M.M.S., J.) (R.N.M., J.)
06.07.2021
Index:Yes/No
mmi/ssm
To
1.The Regional Provident Fund Commissioner,
Employees' Provident Fund Organization,
Sub-Regional Office,
No.101, 100 Feet Road, Cholan Nagar,
Olandai, Keerapalayam,
Puducherry - 605 004.
2.The Assistant Provident Fund
Commissioner (Comp),
Employee's Provident Fund Organization,
Sub-Regional Office,
No.101, 100 Feet Road, Cholan Nagar,
Olandai, Keerapalayam,
Puducherry - 605 004.
3.The Secretary,
Ministry of Labour & Employment Department,
Government of India,
Shram Shakti Bhawan,
Rafi Marg, New Delhi - 110 001.
https://www.mhc.tn.gov.in/judis/
W.A.No.355 of 2020
M.M.SUNDRESH, J.
and
R.N.MANJULA,J.
mmi
W.A.No.355 of 2020
06.07.2021
https://www.mhc.tn.gov.in/judis/
