Madras High Court
The Asst. Provident Fund Commissioner vs M/S.Eltex Super Castings on 17 February, 2025
Author: M.Dhandapani
Bench: M.Dhandapani
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W.P. No.18944/2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 17.02.2025
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO.18944 OF 2012
The Asst. Provident Fund Commissioner
Employees Provident Fund Organisation
Bhavishya Nidhi Bhawan
Dr. Balasundaram Road, Coimbatore 641 018. .. Petitioner
- Vs -
1. M/s.Eltex Super Castings
Rep. by its Director
Periyanaickenpalayam
Coimbatore 641 020.
2. The Presiding Officer
Employees Provident Fund Appellate Tribunal
7th Floor, 60, Skylark Buildings
Nehru Palace, New Delhi 110 019. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of certiorari to call for the records of the 2nd
respondent relating to the order passed in ATA No.235(13)2001 dated
21.09.2011 and quash the same.
1
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W.P. No.18944/2012
For Petitioner : Mr. C.Kulanthaivel
For Respondents : Mr.B.Kumarasamy, for
Mr. D.Muthuselvam for R-1
ORDER
Assailing the order of the 2nd respondent, in and by which the order
passed by the petitioner has been set aside, wherein the petitioner had
directed the respective 1st respondent to pay the contribution towards PF in
respect of the allowances for which PF was not deducted and deposited, the
present writ petition has been filed.
2. When the matter is taken up for consideration, learned counsel
appearing for the 1st respondent brought to the notice of this Court that
similar issue has been raised in a batch of petitions in W.P. Nos.26413/2017,
etc. Batch and this Court, vide order dated 04.08.2023 had allowed the writ
petitions setting aside the order passed by the original authority. Learned
counsel appearing for the petitioner fairly concedes with the same.
3. This Court perused the order passed in W.P. Nos.26413/2017, etc.
Batch, wherein, this Court has held as under :-
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“25. A conjoint reading of Sections 7-I and 7-L shows that
an appeal to the Tribunal could be filed only by the person
aggrieved by the order of the authority or the Central
Government and it cannot be by an authority, even higher in
hierarchy to the authority, who had passed the order in the
absence of any authorisation by the Central Government.
Further, for the purpose of determination of moneys to be
recovered, the inquiry by the authority is deemed to be a
judicial proceeding as is passed by a civil court. In effect, the
order passed by the authority, is a judicial order passed
exercising quasi-judicial power.
26. Further, as evidenced above, sub-section (4) of Section
7-L makes the order passed by the Tribunal a finality, which
could not be questioned in any court of law. True it is that the
order of the Tribunal can be put in issue before this Court
under Article 226 of the Constitution, as this Court exercises
extraordinary jurisdiction. However, the only interpretation
that could be given harmoniously to sub-section (4) of Section
7-L is that the authority, who had passed the order, being an
authority lower in hierarchy to the Tribunal, is bound to accept
the order passed by the Tribunal and is estopped from
questioning the said order by filing appeal, except where the
order passed is without jurisdiction and that too only if the
authority has proper authorisation from the Central
Government.
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27. However, the other party to the lis, viz., the individual,
cannot be estopped from taking the same on appeal before a
higher judicial forum. Meaning thereby, the order passed by
the Tribunal in an appeal by the employer, could at best be
challenged only by the employer, if it is against the employer
and the authority, who passed the original order is bound to
act on the basis of the order passed by the Tribunal as the
Tribunal is the final arbiter under the statute insofar as the
authority is concerned. Further, it should be pointed out that
the order passed by the original authority merges with the
appellate order and the original authority is bound by the
order passed by the appellate authority. Any other
construction, if given to Section 7-L (4) would render the
appeal remedy an empty formality as every time, the order of
the original authority is interfered with by the appellate
authority, the original authority, if permitted to rush before
the higher judicial forum, including the High Court under Art.
226, then it would defeat the very intent of the Parliament in
including Section 7-L (4). Only to put a stop to further
litigative process, more specifically by the original authority,
sub-section (4) to Section 7-L had put shackles on the original
authority by making the order passed by the Tribunal a
finality. The order could be challenged by the authority by
way of a writ petition only when the authority is clothed with
authorisation by the Central Government or Board of Trustee
to prefer appeal against the order passed by the appellate
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authority. In the absence of any power granted by the Central
Government or Board of Trustee to the authority to file appeal
assailing the order passed by the appellate authority, not only
the original authority is barred from filing a writ petition, but
any writ petition, if entertained would be against the statute,
which is not the intent of the law makers. Further, it is to be
pointed out that the only situation in which the original
authority could put in issue an order in appeal is when the
authority who had passed the order is not vested with
jurisdiction. In all other scenarios, the original order merges
with the appellate order and the appellate order becomes final
and the original authority is bound by the order of the
appellate authority..
28. It is to be pointed out that when an authority performs
quasi-judicial function, by passing orders in a matter, it neither
acts in favour of the Government nor the individual, but is
performing a duty endowed on it by the statute. The authority
is immune from all attachments and realisations for and on
behalf of the Government and is in no way attached with the
order, as it is only the statutory prescription that is sought to
be enforced by the authority and it has no personal afflictions
to the said issue. In case, the order passed by the authority is
not in favour of the department, at best the department, upon
proper authorisation from the Government could seek further
judicial recourse but it is not open to the original authority,
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who passed the order, without any authorisation, to challenge
the order passed by the Tribunal.
29. The above view expressed by this Court finds favour in
the decision of the Apex Court in Mohtesham Mohd. Ismail
case (supra), which clearly portrays the position in which the
original authority is positioned when it comes to questioning
the appellate order as has happened in the present case. For
better appreciation, the relevant portion of the decision is
quoted hereunder :-
“15. From the notification dated 22.09.1989,
whereupon reliance has been placed by Mr. Bhan, it
would appear that the officer authorized by the Central
Government for the purpose of enforcing the
provisions of the Act was specifically empowered to
adjudicate upon the dispute. The said notification itself
is a pointer to the fact that for the purpose of
exercising the functions of the Central Government
under one provision or the other, the officer concerned
must be specifically empowered in that behalf. A
general empowerment would, however, be
permissible. Before the High Court, no notification was
filed to show that the authority concerned was
empowered to prefer an appeal on behalf of the
Central Government. The Central Government was not
even impleaded as a party to the appeal. First
Respondent did not file the appeal on behalf of or
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representing the Central Government. It was filed in its
official capacity as the adjudicating authority and not
as a delegatee of the Central Government.
16. An adjudicating authority exercises a quasi-
judicial power and discharges judicial functions. When
its order had been set aside by the Board, ordinarily in
absence of any power to prefer an appeal, it could not
do so. The reasonings of the High Court that he had
general power, in our opinion, is fallacious. For the
purpose of exercising the functions of the Central
Government, the officer concerned must be specifically
authorized. Only when an officer is so specifically
authorized, he can act on behalf of the Central
Government and not otherwise. Only because an
officer has been appointed for the purpose of acting in
terms of the provisions of the Act, the same would not
by itself entitle to an officer to discharge all or any of
the functions of the Central Government. Even
ordinarily a quasi-judicial authority can not prefer an
appeal being aggrieved by and dissatisfied with the
judgment of the appellate authority whereby and
whereunder its judgment has been set aside. An
adjudicating authority, although an officer of the
Central Government, should act as an impartial
Tribunal. An adjudicating authority, therefore, in
absence of any power conferred upon it in this behalf
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by the Central Government, could not prefer any
appeal against the order passed by the Appellate
Board.
17. The Madras High Court in Rama Arangannal
(supra) opined :
“4. On the question as to the maintainability of the
appeal, it is seen that the Explanation to Section 54 of
the Foreign Exchange Regulation Act 1973 treats only
the Central Government as an aggrieved party for the
purpose of filing an appeal to the High Court in respect
of orders passed by the Foreign Exchange Regulation
Appellate Board under that section. Therefore, only the
Central Government can file and prosecute an appeal
against the order of the Appellate Board, and not any
other authority, In this case, the appeal has been filed
by the Director of Enforcement, who is the initial
authority who passed the adjudication order against
the respondents and whose order has been set aside by
the Appellate Board on an appeal filed by them.
Therefore, the Director of Enforcement cannot be said
to be aggrieved by the order of the Appellate Board
merely because its order of adjudication has been set
aside by the Appellate Board.”
(Emphasis Supplied)
31. When the appellate authority, in unequivocal terms,
has rendered a categorical finding that the findings arrived at
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by the original authority, which are on the basis of facts, are
erroneous, it does not lie in the mouth of the petitioner to
contend that the act of the employer in tampering with the
basic wages to their benefit is a question of law, which has to
be gone into by this Court, is nothing but trying to split hairs in
order passed by the appellate authority. When the appellate
authority has clearly spelt out that the Act clearly defines basic
wages and so long as the language of the enactment is
without any ambiguity, the definition provided to any term
therein has to be interpreted plainly and, therefore, original
authority is bound by the language of the enactment and
cannot borrow the language from any other enactment to suit
its taste is a clear exposition of the ratio, which has been laid
down time immemorial in respect of the manner in which a
statute has to be understood and in the said context, this
Court is of the considered view that the decision arrived at by
the appellate authority, on the basis of the facts placed before
it, cannot be the basis for this Court to entertain the writ
petitions, more so, when the petitioner has no authorisation to
act on behalf of the Central Government by filing the present
petitions.
32. When the petitioner has no authorisation to file the
writ petitions on behalf of the Central Government or Board of
Trustee, challenge made to the order of the appellate
authority by filing the writ petitions is an act without
jurisdiction of the authority and, therefore, the writ petitions
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deserve to be dismissed by confirming the order passed by the
Tribunal.”
4. The aforesaid decision is squarely applicable to the facts of the
present case. Accordingly, applying the ratio laid down above, the writ
petition is dismissed confirming the impugned order passed by the Tribunal.
There shall be no order as to costs.
17.02.2025
Index : Yes / No
GLN
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To
1. The Asst. Provident Fund Commissioner
Employees Provident Fund Organisation
Bhavishyanidhi Bhavan
Dr. Balasundaram Road
Coimbatore 641 018.
2. The Presiding Officer
Employees Provident Fund Appellate Tribunal
7th Floor, 60, Skylark Buildings
Nehru Palace, New Delhi 110 019.
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M.DHANDAPANI, J.
GLN
W.P. NO.18944 OF 2012
17.02.2025
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