Shri Shivaji Education Society vs Assistant Commissioner of Provident Fund

A.S. Chandurkar, J.(Oral)—Rule. Heard finally with the consent of the learned Counsel for the parties.

The petitioner is aggrieved by the order passed by the respondent no.1 under provisions of Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short, the said Act). It is the case of the petitioner that the said order has been passed in a manner contrary to law. Though the liability for the period from April, 2008 to March 2014 had been deferred for fresh enquiry as per the report of the Enforcement Officer, the respondent no.1, however, adjudicated the liability for said period also. According to the petitioner though a statutory remedy of filing an appeal under Section 7-I of the said Act is available, as the impugned order results in gross injustice, a case for interference under Article 226 of the Constitution of India is made out. The learned Counsel has relied upon the judgment of the Hon''ble Supreme Court in State of Tripura v. Manoranjan Chakraborty and others, (2001)10 SCC 740 in that regard.

A preliminary objection has been raised on behalf of the respondent no.1 that the remedy of filing a statutory appeal under Section 7-I of the said Act is available and hence, the present writ petition does not deserve to be entertained as no exceptional case is made out. Reliance has been placed on the judgment of the Hon''ble Supreme Court in Commissioner of Income Tax and others v. Chhabil Dass Agarwal, 2014(1) SCC 603 in that regard.

Having heard the respective Counsel and having perused the impugned order, I find that one of the issues that arises is with regard to the liability to pay contribution for the period from April, 2008 to March, 2014. While it is the case of the petitioner that the Enforcement Officer in his report had submitted that there should be a fresh assessment and enquiry for the period from April 2008 onwards, in the impugned order it has been stated that the representative of the petitioner on 17-10-2014 had requested that upto date assessment may be made in respect of establishment. This aspect which is disputed requires factual adjudication which is not possible in writ jurisdiction.

In view of aforesaid, I do not find that this is a fit case to entertain the writ petition and the petitioner deserves to be directed to avail the statutory remedy of filing an appeal under Section 7-I of the said Act.

In view of aforesaid, the following order is passed:

(a) The petitioner is at liberty to challenge the order dated 29-10-2015 passed by the respondent No.1 by filing appeal under Section 7-I of the said Act. As the present writ petition was filed within a period of 60 days from the date of passing of the impugned order, if such appeal is filed within a period of four weeks from today,the appeal shall be entertained on merits without going into the question of delay.

(b) By order dated 22-12-2015 the petitioner was directed to deposit 50% of the amount of contribution in terms of the impugned order. An amount of Rs. 4,08,150/has been deposited with the respondent no.1. In case the appeal under Section 7-I of the said Act is filed a and request for waiver of statutory deposit is made, the amount already deposited shall be taken into consideration in that regard.

(c) Needless to state that the amount already deposited shall be treated as deposit under provisions of 7-O of the said Act subject to further orders of the Tribunal.

(d) Rule is made absolute in aforesaid terms. No costs.