4 1.2.2021 This Matter Is Taken Up ... vs Unknown
2021 Latest Caselaw 1117 Ori

W.P.(C) NO.10894 OF 2010

4 1.2.2021 This matter is taken up through Video Conferencing.

2. Heard Sri K.K.Jena, learned counsel for the petitioner and Sri S.K.Patnaik, learned senior counsel AFR appearing for O.P.2.

3. Sri Jena, learned counsel for the petitioner submits that for the petitioner coming to this Court challenging the rejection order passed in the Review Petition at the instance of the petitioner by the Provident Fund Authority, there was no scope to the petitioner for preferring Appeal and thus the writ petition is very much maintainable. Sri S.K.Patanaik, Senior Advocate in his opposition opposes the entertainability of the writ petition on the premises of petitioner having clear statutory Appeal remedy. Sri Pattanaik also submits that that filing of writ is intended to override making statutory deposit and if the writ petition is entertained then the provision in the statute will be frustrated.

4. This Court considering the submission made observes, once a Review Petition is decided involving the main case, the review order always merges with the principal order. For the clear appeal provision in the EPF & MP Act, there is no prevention in filing such order in Appeal. The grounds raised herein can very well be agitated in Appeal and also considered by the Appellate Authority.

5. Law of the land on the score as to if writ petition under Article 226 of the Constitution of India is m maintainable in the event there is statutory remedy of appeal available, which reads as follows :-

(2003) 5 SCC 399 (Seth Chand Ratan vrs.

Pandit Durga Prasad (D) Lrs. & others), Paragraph-13 of which reads as follows :-

"13. Even otherwise, the view taken by the Division Bench of the High Court for repelling the objection of the appellant regarding the maintainability of the writ petition that an alternative remedy does not divest the High Court of its powers to entertain petitions under Articles 226 and 227 of the Constitution, has hardly any application on the facts of the present case. It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. In the present case, the alternative remedy of challenging the judgment of the court was not before some other forum or tribunal. On the contrary, by virtue of sub-section (3) of Section 27 of the Act, the order passed by the court amounted to a decree against which an appeal lay to the High Court. When the party had statutory remedy of assailing the order passed by the District Court by filing an appeal to the High Court itself, he could not bypass the said remedy and take recourse to proceedings under Articles 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount or fulfillment of some other conditions for entertaining the appeal."

(2005) 8 SCC 264 (U.P.State Spinning Co. Ltd.

vrs. R.S.Pandey & another), Paragraphs-11 & 17 of which are as follows :-

"11. Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976,

the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.

17. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355 : AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non- exhaustion of statutory remedies, unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition."

(2010) 4 SCC 772 (Raj Kumar Shivhare vrs.

Assistant Director, Directorate of Enforcement & another), Paragraphs-31, 35, 37 & 39 of which are as follows :-

"31. When a statutory forum is created by law for

redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.

35. In this case, liability of the appellant is not created under any common law principle but, it is clearly a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A writ petition in the facts of this case is therefore clearly not maintainable.

37. In view of such consistent opinion of this Court over several decades we are constrained to hold that even if the High Court had territorial jurisdiction it should not have entertained a writ petition which impugns an order of the Tribunal when such an order on a question of law, is appealable before the High Court under Section 35 of FEMA.

39. In the instant case none of the aforesaid situations are present. Therefore, principle laid down in Ratan case [(2003) 5 SCC 399] applies in the facts and circumstances of this case. If the appellant in this case is allowed to file a writ petition despite the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount of penalty or fulfilment of some other conditions for entertaining the appeal. (See para 13 at SCC p. 408.) It is obvious that a writ court should not encourage the aforesaid trend of bypassing a statutory provision."

6. Reading the whole writ petition, this Court finds, all the grounds raised can very well be considered by the appellate authority and there is no ground to bypass the appellate authority and to avail the writ remedy.

For the decisions of the Hon'ble apex Court taken note herein above, the writ petition at hand remains wholly not entertainable in exercise of power under Article 226 of the Constitution of India. In this view of the matter, this Court finds, the writ petition is not entertainable at this stage, but however since the petitioner has the remedy of appeal and wrongly pursuing the writ remedy, if so advised, it may file an appeal involving both Section 7A and Review under the provision of Employees' Provident Funds and Miscellaneous Provision Act. 1952 within fifteen days along with copy of limitation petition. In such event the Appeal shall be heard on its own merit on condonation of delay.

7. The writ petition stands disposed of accordingly.

8. The petitioner may utilise the soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notification No.4587 dated 25.3.2020.

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Biswanath Rath, J.