Madras High Court
Unknown vs The Learned Presiding Officer on 15 July, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.22475 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON :01.07.2025
ORDER PRONOUNCED ON : 15.07.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.22475 of 2019
and WMP(MD).No.19257 of 2019
the Assistant Provident Fund Commissioner
Employees Provident Fund Organization
Sub Regional Office
66, Water Tank Road
Nagercoil 629 001
Kanyakumari District
(Now through Regional
Provident Fund Commissioner-II) ....Petitioner
Vs
1.The Learned Presiding Officer
The Employees Provident Fund Appellate Tribunal
Chennai
2.M/s.Muslim Arts College
Thiruvithancode 629 174
Kanyakumari District ….Respondents
Prayer : This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari to call for the records in connection with the
impugned order passed by the first respondent in EPFA 380 /2017, ATA 214
(13)/2014 dated 08.08.2019 and quash the same.
1/13
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W.P(MD).No.22475 of 2019
For Petitioner : Mr.M.Mahaboob Athiff
For Respondents : Appellate Tribunal -R1
: Mr.Azeem for R2
ORDER
The present writ petition has been filed by an Assistant Provident Fund
Commissioner, Nagercoil challenging the order passed by the Employees
Provident Fund Appellate Tribunal, Chennai on 08.08.2019.
(A)Factual Background:
2.The second respondent herein had suffered an order at the hands of
the writ petitioner under Section 14-B of the Employees' Provident Fund Act
on 13.02.2014 wherein an order was issued to recover a sum of Rs.4,40,190/-
The said order was challenged by the second respondent herein before the
first respondent by filing EPFA.No.380 of 2017.
3.After considering the submissions made on either side, the Appellate
Tribunal was pleased to allow the appeal in part and directed the second
respondent herein to deposit 35% of the dues determined in the impugned
order within a period of 2 months. This order is put to challenge in the
present writ petition.
(B).Submissions of the learned counsels appearing on either side:
4.The learned counsel for the petitioner had contended that the order
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passed by the first respondent is not in consonance with the provisions of
Employees' Provident Act. He further submitted that the first respondent has
not assigned any reason whatsoever for reducing the quantum to 35% and the
order is an non-speaking order.
5.The learned counsel for the writ petitioner had further submitted that
the second respondent had failed to utilize the opportunity of hearing and
they had willfully abstained from taking part in the entire proceedings. That
apart, the appeal filed by the second respondent should have been dismissed
on the ground of suppression of material fact and approaching the Tribunal
with unclean hands.
6.The learned counsel for the petitioner had further stated that insofar
the plea of mensrea is concerned, Section 14-B does not contemplate such
requirement and therefore, the Appellate Tribunal was not right in relying
upon the said principles. When the damages are calculated on the basis of
statutory scale prescribed under the Act, the rejection of the same is illegal
and unwarranted. Therefore, the order of the Tribunal is unsustainable in the
eye of law.
7.The learned counsel for the petitioner had relied upon a judgment of
our High Court in WP.No.20938 of 2004 batch case, dated 21.06.2011 ( The
Assistant Provident Fund Commissioner and others Vs. Employees Provident
Fund Appellate Tribunal and others); a judgment of Calcutta High Court
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reported in 2022 SCC Online Cal 1219 (Central Board of Trustees Vs.
Registrar, E.P.F.Appellate Tribunal and another) and the interim order of
Hon'ble Division Bench of our High Court in WA.Nos.2606 and 2635 of
2024 dated 03.09.2024 in support of his contention with regard to the
maintainability of the writ petition.
8.Per contra, the learned counsel appearing for the second respondent
submitted that the Appellate Tribunal after considering the submissions on
the side of the employer, has proceeded to reduce the damages to an extent of
35%. The power of the Appellate Tribunal to modify the order of the original
authority cannot be disputed. He further questioned the maintainability of the
writ petition by the original authority challenging the order passed by the
Appellate Authority. He had further contended that the first respondent being
the Appellate Tribunal, any order passed by them is binding on the writ
petitioner. Therefore, the order of the Appellate Tribunal cannot be
questioned by the original authority.
9.Heard both sides and perused the material records.
(C)Discussion:
10.The writ petitioner/Assistant Provident Fund Commissioner had
passed an order under Section 14-B of the Employees' Provident Fund Act as
against the second respondent herein on 13.02.2014. This order has been put
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to challenge by the second respondent before the first respondent namely the
Employees Provident Fund Appellate Tribunal under Section 7(I) of
E.P.F.Act.
11.The Appellate Tribunal has proceeded to modify the order passed by
the original authority under the impugned order dated 08.08.2019 by
reducing the quantum of damages by 35%. The maintainability of the present
writ petition has been questioned.
12.The Hon'ble Supreme Court in a judgment reported in (2007) 8
SCC 254 (Mohtesham Mohd.Ismail Vs. Spl.Director, Enforcement
Directorate and another) in Paragraph No.16 has held as follows:
“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 cannot prefer an appeal being aggrieved by and
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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 by the
Central Government, could not prefer any appeal against the
order passed by the Appellate Board.”
13.A Division Bench of Calcutta High Court in a judgment reported in
2014 SCC Online Cal 16064 ( Regional Provident Fund Commissioner Vs.
Employees Provident Fund Appellate Tribunal and another) in Paragraph
No.4 has held as follows:
“4....
In the present case, the appellant-petitioner herein while
discharging authority and jurisdiction under Section 7A of the Act
passed an order in exercise of his quasi-judicial power and the said
order was challenged before the learned Appellate Tribunal. The
said learned Tribunal was pleased to set aside the order passed by
the said appellant-petitioner. The appellant-petitioner thereafter,
challenged the order passed by the learned Appellate Tribunal by
filing the writ petition.
The order passed by the Appellate authority reversing the order
passed by the quasi-judicial authority cannot be challenged by the
said quasi-judicial authority by filing a writ petition. The appellant-
petitioner herein cannot be said to be an aggrieved party since the
interests of the said appellant-petitioner could not be affected by the
order passed by the learned Appellate Tribunal. The appellant-
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petitioner herein is not a party to the lis and the decisions of the
said authority are subject to the order passed by the Appellate
authority under the provisions of the Statute ."
14.A Division Bench of Kerala High Court in a judgment reported in
2015 SCC Online Ker 22269 (Cosmoplitan Hospital, (P) Ltd., Vs. The
Regional Provident Fund Commissioner, Trivandram and another) in
Paragraph Nos.9 and 10 has held as follows:
“9.Another important aspect, which has come to the notice of
this Court is that, there is an inherent defect on the part of the 1st
respondent in having preferred the original petition before this
Court, challenging Ext.P4 order passed by the second respondent
Tribunal. This is for the reason that, the 1st respondent happened to
be the 'adjudicating authority', who passed Ext.P1 order mulcting
the liability upon the appellant herein. The said order passed by the
1st respondent was subjected to challenge by the appellant, by filing
a statutory appeal before the second respondent/Tribunal. After
considering the facts and figures and the relevant provisions of law,
the second respondent/Appellate Tribunal found that, the order
passed by the 1st respondent was not liable to be sustained and
accordingly, the said order was set aside as per Ext.P4. The
question to be considered is whether the 1st respondent, who
happened to be the 'adjudicating authority', could have moved the
original petition before this Court, challenging the order passed by
the higher authority/ Appellate Tribunal. The position can be
answered only in the 'negative' as discussed below.
10. A similar order involving the Provident Fund Department
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(when the original order passed by the Assistant Provident Fund
Commissioner, was subsequently intercepted by the Appellate
Tribunal) came to challenged before this Court by the Regional
Provident Fund Commissioner. A preliminary objection was raised
from the part of assessee/Employer of the establishment as to the
maintainability of the original petition. Various judgments rendered
by the Apex Court were cited across the bar; particularly the ruling
rendered by the Apex Court in A.I.R 1961 SC 182 Bhopal 18
(Bhopal Sugar Industries Ltd. V. Income Tax Officer), AIR 2000 SC
3678 (Union of India v. K.M.Sankarappa, (2007) 8 SCC 254
(Mohtesham Mohd.Ismail v. Spl.Director, Enforcement Directorate
and another, wherein it has been categorically laid down that the
'adjudicating authority' cannot challenge the order passed by the
'higher authority' under any circumstance; which otherwise would
undermine the principles of 'judicial discipline'. Following the law
declared by the Apex Court, the question was answered by a learned
Judge of this Court, as per the decision reported in 2012 1 KLT
704), (Assistant Provident Fund Commissioner v.West Coast
Petroleum Agency), holding that the Departmental authority who
passed the order in adjudication, could not have challenged the
order passed by the Appellate Tribunal. We affirm the position as
above."
15.A Full Bench of our High Court in a judgment reported in 2006 (4)
CTC 460 (The Union of India Vs. Member Secretary, Chennai
Metropolitan Development Authority and another) in Paragraph No.13 has
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held as follows:
“13.In such writ petition filed by the Member Secretary for
and on behalf of the CMDA or even on behalf the State
Government, grave doubt arises as to whether such a writ petition
challenging the validity of the Notification issued by the Central
Government can be filed by such statutory authority, which is
supposed to implement the Notification issued by the Central
Government pertaining to matters relating to protection of
environment. Prima facie, filing of the writ petition appears to be
on ill-advise and untenable......”
16.A Division Bench of our High Court in a judgment in WA(MD).No.
298 of 2014 (The Regional Provident Fund Commissioner Vs. The
Presiding Officer, Employees Provident Fund Appellate Tribunal and
another) dated 15.04.2024 in Paragraph Nos.13 and 15 has held as follows:
“13.A close reading of Section 7-I would reveal that the
Tribunal has got power either to confirm, modify or to annul the
orders of the original authority or it can remit it back to the
original authority for fresh adjudication. Therefore, the power of
the Appellate Tribunal to modify the orders of the original authority
cannot be in dispute. The original authority cannot contend that his
orders cannot be modified or set aside by the Appellate Authority. It
is very strange that the original authority had questioned the power
of his Appellate Authority by way of filing this writ petition.”
15.A Division Bench of Bombay High Court in a Judgement
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reported in 2011-III-LLJ 446 (Bombay) ( Regional Provident
Fund Commissioner, Sub-Regional Office, Nagpur Vs.
Manoharbhai Ambalal, Gondia) has categorically held that the
Appellate Tribunal under the EPF Act has got powers to reduce the
damages imposed on the employer. The Division Bench of our High
Court in a recent decision reported in 2023-IV-LLJ-234(Mad)
(Laven Technoblend Limited, Formerly known as
M/s.Coimbatore Popular Spinning Mills Ltd., Tirupur District
Vs. Regional Provident Fund Commissioner, Coimbatore and
others) in paragraph No.11 is held has follows:
“11..... Now, after the formation of the Tribunal in 1996,
pursuant to the introduction of Section 7-I of EPF Act, even by-
passing para 32B, the aggrieved person can approach the Tribunal
for relief. Firstly, it is a time saving process. In case, the matter is
taken up by the Central Board of Trustees and in case of adverse
order, it is open to the party to challenge the same before the
Tribunal. There is no guarantee about the time by which the
Central Board might dispose of the application. The Tribunal
presided over by a judicial officer is empowered to decide about
the grant of waiver or reduction of damages that is levied by the
authority concerned. Hence, we are of the view that in the case on
hand, the order of the learned Single Judge interfering with the
order of the Tribunal is not correct and the order passed in the writ
petition is set aside.”
17.A cumulative reading of the judgment of Hon'ble Supreme Court,
the Full Bench Judgment of our High Court, a Division Bench Judgment of
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our High Court, Two Division Bench Judgements of Kerala High Court and
Calcutta High Court clearly reveal that the original authority who exercises a
quasi-judicial power cannot prefer an appeal being aggrieved over the
judgment of the Appellate Authority. Only if an adjudicating authority is
specifically authorized, he can challenge the order of the Appellate Authority.
In the absence of any such power, the original authority cannot prefer an
appeal or challenge the said order passed by the Appellate Authority.
Therefore, it is clear that the writ petition having been filed by the original
authority challenging the order of the Appellate Authority is clearly not
maintainable.
18.As far as the power of the Appellate Tribunal with regard to
modifying or setting aside the order of the original authority are concerned, it
is settled, in view of the above said decisions referred to Para-16 that the
Appellate Tribunal has got power to reduce, modify or set aside the order of
the original authority.
(D)Conclusion:
19.In view of the above said deliberations, there are no merits in the
writ petition and the writ petition stands dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
15 .07.2025.
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Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
To
1.The Learned Presiding Officer
The Employees Provident Fund Appellate Tribunal
Chennai
2.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
and WMP(MD).No.19257 of
15.07.2025
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