Orissa High Court

St. Xaviers Senior Secondary vs Epfo on 8 December, 2021

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No. 38023 of 2021

              St. Xaviers Senior Secondary         ....         Petitioner
              School

                                   Mr. S. Mohanty, Advocate

                                        -versus-
              EPFO, BBSR & others                  ....       Opp. Parties



                                   CORAM:
                           JUSTICE M.S. SAHOO

                                   ORDER

Order No. 08.12.2021

02. This matter is taken up through physical mode.

Heard Mr. Mohanty, learned counsel for the petitioner.

At the outset, it was specifically asked to the learned

counsel for the petitioner whether the petitioners wants to

seek recourse to the statutory remedy of appeal, available

under the statute i.e. Section 7-I of the Employees Provident

Funds and Miscellaneous Provisions Act, 1952, which deals

with Appeal to the Tribunal, it is submitted by the learned

counsel for the petitioner that the matter may be heard and

decided on merits. Accordingly, the matter is heard on merit

and decided at the stage of admission with the following

order:-

It is submitted by the learned counsel for the petitioner

that Annexure-1, which is impugned in the writ petition, // 2 //

suffers from the vices of lack of opportunity granted to the

petitioner and the fact that certain documents which were not

shown earlier to the petitioner, were utilized by the authority.

Further, on being specifically asked regarding the stand taken

before the authority in the proceeding i.e. 7-A Case No.45 of

2018, it is submitted by the learned counsel for the petitioner

that no such documents like written reply are available as per

the instruction of the petitioner.

It is further submitted that Annexure-2 (page-22 to the

writ petition) dated 26.01.2019, encloses the documents filed

earlier before the authority in proceeding of 7-A Case No.45 of

2018, though the order was passed on 14.01.2019. When it

was enquired, that the letter dated 26.01.2019 could not have

been brought to the notice of the authority who passed the

order on 14.01.2019, it is submitted by Mr. Mohanty, learned

counsel for the petitioner that though the petitioner has not

mentioned anything in the letter dated 26.01.2019 regarding

the said aspect, but in fact, the petitioner had submitted the

documents earlier as annexed to said letter dated 26.01.2019.

In view of the aforesaid contentions, this Court cannot

arrive at a conclusion either way, whether the petitioner had

submitted or not submitted the documents sought to be

relied on by the petitioner in the present writ petition. Any

document, not produced before the statutory adjudicating

// 3 //

authority, cannot be entertained at a later stage in the writ

petition in the certiorari proceeding.

It is submitted by the learned counsel for the petitioner

that the petitioner has submitted certain documents as would

be evident from the order dated 14.01.2019, (page-19 to the

writ petition, internal page-2 of the order) and the relevant

portion is quoted herein:-

"Sri S.C. Sahoo, Enforcement Officer/Departmental Representative who is also an Inspector under Section 13(I) of the EPF & MP Act, 1952 was present and filed his report dated 26.11.2018 along with dues statement for the 7A case period from August, 2015 to March, 2018 after verifying all relevant records from the period of inquiry initiated u/s. 7A of the EPF & MP Act, 1952 i.e., from 08/2015 to 03/2018. Further he stated that the establishment deposited only the employees' share for the period from 08/2015 to 03/2016. The establishment has already been deposited an amount of Rs. 5,43,713.00 through ECR towards dues U/s. 7A for the period from August, 2015 to March, 2018."

It is evident from the above, that the petitioner has

submitted certain documents.

Regarding observations at internal page-2 (page-19 to

the writ petition), when queried: what was the stand of the

petitioner before the authority in the proceeding i.e. 7-A Case

No.45 0f 2018, learned counsel for the petitioner submits that

he is not in a position to apprise the Court, having not been

instructed by the petitioner. As such no reply or written

statement filed by the petitioner in the proceeding i.e. 7-A

Case No.45 of 2018 has been made available in the writ

// 4 //

petition.

It is further submitted by the learned counsel for the

petitioner that the petitioner has been subjected to

harassment, as several proceedings have been initiated which

relate to separate periods and the demands arising out of the

several proceedings have been clubbed together and letters

have been issued to three bankers of the petitioner for

recovery of the dues.

Section 7-I of the EPF & MP Act, 1952, provides as

follows:-

"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. (2) Every appeal under sub- section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.

It is submitted by the learned counsel for the petitioner

that Section 7-I of the EPF and MP Act, 1952 becomes a

onerous remedy inasmuch as 7-O provides for pre-deposit.

The said Section provides as follows:-

// 5 //

"7-O. Deposit of amount due, on filing appeal.--No appeal by the employer shall be entertained by a Tribunal unless he has deposited with it seventy-five per cent. of the amount due from him as determined by an officer referred to in section 7A:

Provided that the Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section.

In view of the proviso to Section 7-O, the appellant can

make an application for waiver/reduction of amount of pre-

deposit. It cannot be held that the provision of appeal is

onerous, if Section 7-O and 7-I are read together. The

applicant can file petition for waiver of pre-deposit along with

Appeal.

It has to be held that since the petitioner has not

produced any documents to show the stand before the

statutory authority, in 7-A Case No.45 of 2018, it cannot be

held that the petitioner was denied any opportunity of

hearing, in absence of material before this Court as far as the

written statement or reply of the petitioner is concerned.

The order as at Annexure-1 series, at page-19 to the

writ petition refers to the report dated 26.11.2018 pertaining

to the period from August, 2015 to March, 2018, in fact the

said report indicates that the petitioner has deposited the

employees' share for the period from 08/2015 to 03/2016.

// 6 //

The said finding is in favour of the petitioner, inasmuch as,

the petitioner also relies on the said fact that he has made

certain deposits, when the finding is in favour of the

petitioner, absence of confrontation of the document with the

petitioner, whether, would amount to denial of natural justice

or not, need not be dealt with at this point, in view of the

nature of order passed.

Learned counsel for the petitioner relies on the following

decision rendered by this Court in the case of M/s. R.C.

Enterprises vrs. The Assistant provident Fund

Commissioner (Compliance), Employees Provident Fund

Organization, Rourkela and another reported in 2017

(Suppl.II) OLR-65, to buttress the point, that even in cases,

where alternative remedy is available, the writ court can

interfere in the said judgment. Para-6 of the judgment is

quoted herein for ready reference:-

"6.On the basis of the factual matrix available, there is no dispute that the impugned order dated 15.03.2010 was passed ex-parte. The opening of the order itself indicates that none had appeared on behalf of petitioner-establishment nor any written submission was filed though the employer was well aware of the day's proceedings........"

In the case at hand, and also very fairly submitted by

Mr. Mohanty, learned counsel for the petitioner that the

petitioner was present in the proceeding, participated on the

dates 19.07.2018, 09.08.2018, 30.08.2018, 12.09.2018 and it

// 7 //

is further contended that the petitioner had also produced

certain documents which have been taken note of by the

authority.

There cannot be any two opinions that when there is ex-

parte proceeding it denies opportunity of hearing but that

principle/presumption cannot be applied to a proceeding,

where the petitioner had participated on several dates and

produced documents.

Mr. Mohanty, learned counsel for the petitioner, further

relies on the decision of the Hon'ble Supreme Court in the

case of Whirlpool Corporation vrs. Registrar of Trade

Marks, Mumbai and others reported in AIR 1999 SC 22:

(1998) 8 SCC 1.

In Whirlpool Corporation (supra), it has been laid

down that availability of alternative remedy is not always a

bar for a writ court to entertain a matter when certain

conditions prevail. To summarise, the principle enunciated in

Whirlpool Corporation (supra), is that writ is maintainable,

where the authority against whom the writ petition is filed, is

shown to have no jurisdiction, the authority has purported to

usurp jurisdiction without a legal foundation. Para-20 and 21

of SCC is quoted herein for ready reference:-

"20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under

// 8 //

Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.

21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show- cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal".

Other decision relied on by the learned counsel for the

petitioner rendered by this Court in the case of Orissa

Manganese and Minerals Pvt. Ltd. and another vrs.

Regional Provident Fund Commissioner-II/OIC, Rourkela

reported in 2017 (Supp. -I) OLR -924 follows and reiterates

the principle laid down in Whirlpool Corporation (supra).

The ratio of Whirlpool Corporation(supra) may be

applied to the case at hand and the impugned order may be

tested on those parameters.

Apparently, the Assistant Provident Fund

Commissioner, Berhampur had the jurisdiction to deal with

the matter i.e. 7-A Case No. 45 of 2018. There is no allegation