M/S Shiv Herbal Research … vs The Assistant Provident Fund on 13 July, 2011

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR




                                                                                         
                        WRIT PETITION NO.1245 OF 2011.




                                                                 
     PETITIONER:              M/s Shiv Herbal Research Laboratory 
                              Ltd.,  registered office at S-19, MIDC 
                              Hingna Road, Nagpur through its 




                                                                
                              Managing Director.

                                                  ...VERSUS...




                                               
     RESPONDENTS:    1. The Assistant Provident Fund 
                        Commissioner,  Office at Regional 
                          
                        Provident Fund Commissioner,  SRO, 
                        132-A, Ridge Road, Tukdoji Square, 
                        Raghuji Nagar, Nagpur.
                         
                                  2.  The Employees Provident Fund Appellate 
                                      Tribunal,  Ministry of Labour and 
                                      Employment, Core-II, 4th Floor, Laxmi 
      


                                      Nagar, Distt.Center, Laxmi Nagar, 
                                      New Delhi.
   



     =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
     Mr. S.V.Manohar, Advocate for the petitioner.
     Mr. R.S.Sundaram, Advocate for the resp.no.1.





     =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                    
                                                     CORAM :  R.M.SAVANT, J.

DATED : 13th July, 2011.

ORAL JUDGMENT :

1. Rule, with the consent of the parties, made

returnable forthwith and heard.

2. The above petition filed under Articles 226 and 227 of

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the Constitution of India takes exception to the order dated

18/2/2011 passed by the Employees Provident Fund Appellate

Tribunal, by which order the Appeal filed by the petitioner came to

be dismissed and resultantly the order passed under Section 7-A and

14B of the Employees’ Provident Funds and Miscellaneous

Provisions Act, 1952 came to be confirmed.

3. Shorn of unnecessary details, a few facts can be stated

thus –

The petitioner was held to be accessible by virtue of the

order dated 17/8/200 passed under Section 7-A of the Employees’

Provident Funds and Miscellaneous Provisions Act, 1952. By the

said order, the petitioner was also asked to make a remittances for

the period 1/3/1998 to 31/7/2000. The petitioner also received

the show cause notice to show cause as to why damages and penal

interest under Section 14B and 7-Q of the said Act should not be

imposed. It is the case of the petitioner that without affording any

opportunity an order came to be passed against the petitioner on

11/12/2003 imposing penalty and damages. It is against the

aforesaid orders that the petitioner filed an Appeal which was

numbered as ATA No.103/9/2007 before the Tribunal. The

petitioner deposited 25% of the amount in terms of the order

passed by the Apex Court in the Special Leave Petition filed by the

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petitioner against the direction issued by this court for deposit of

50% of the amount.

4. In so far as the Appeal is concerned, the petitioner came

to be intimated vide notice issued by the respondent no.2 that the

Appeal would be taken up for hearing on 17/2/2011. The

petitioner was represented by its counsel Shri S.S.Ghate, who was

also appearing for some other Appellant Companies before the

Tribunal on the said date. It appears that on the said day i.e.

17/2/2011 since the file of the Tribunal relating to the petitioner

was not traceable, the matter was adjourned to 18/2/2011. On

18/2/2011, the matter was not on daily board and therefore the

petitioner’s counsel made a mention to the learned Registrar of the

Tribunal, who informed the petitioner’s counsel that the file is not

traceable. Since some other Appeal of the petitioner’s counsel was

adjourned to 25/3/2011, the Appeal filed by the petitioner was also

adjourned to 25/3/2011. Accordingly, on the daily board the

matter was shown to have been adjourned to 25/3/2011. The

petitioner thereafter was shocked and surprised to receive an order

dated 18/2/2011 of the Tribunal wherein the absence of the

petitioner’s counsel has been noted and the Appeal has been

resultantly decided in the absence of the counsel by the impugned

judgment and order of the Employees Provident Fund Appellate

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Tribunal dated 18/2/2011.

5. It would be apposite to reproduce the averements made

in paragraph 15 of the above petition.

15. That accordingly on 17/2/2011 the petitioner
along with its counsel was present in the matter.
It is most respectfully submitted that on

17/2/2011, the petitioner appeared in the matter
and it was found that the file of the Tribunal was

not traced, therefore, the matter was adjourned to
next day i.e. on 18/2/2011. On 18/2/2011, the

petitioner was present along with its counsel,
however, matter was not finding place on the daily
board. The counsel for the petitioner appeared in

other matters as listed on board. It is respectfully

submitted that after the regular board was over
the counsel for petitioner has mentioned about

hearing of the present Appeal as it was adjourned
from 17/2/2011 to 18/2/2011. The Hon’ble
Presiding Officer was pleased to direct the learned
Registrar to call out the matter for final hearing, to

which the Registrar of the learned respondent no.2
has specifically stated that the file is not traceable,
therefore, it is not available. Therefore, since
other matters of the counsel for petitioner were
already adjourned to 25/3/2011, therefore, the
present Appeal was also adjourned to 25/3/2011,
therefore, the present Appeal was adjourned to

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25/3/2011. Accordingly, the matter was taken on
board and it was shown to have been adjourned to

25/3/2011 on the cause list maintained by the
Registrar of the respondent no.2. Therefore, the

petitioner and its counsel has noted the date of
25/3/2011 and left the camp premises where the
hearing of the Tribunal was held.

6. In reply filed by the respondent no.1 thereto, it is stated

thus –

“4. The contention of the petitioner that the

Appellate Authority did not afford opportunity of
hearing even though it is factual but does not
warrant any consideration of this Court. It is

submitted that the Tribunal had its scheduled

sitting at Nagpur on 16th, 17th and 18th February,
2011. The parties were noticed about the circuit
sitting. Circuit sitting of the respondent no.2 was

held for the convenience of the parties and the
respective counsels which they were requesting at
all times. Hence, as per scheduled sitting the cases

to be listed were duly notified. The petitioner had
a very well notice of this fact that his matter is
listed for final hearing on 17th February, 2011.
That even the daily board of the Tribunal clearly
demonstrates that the case was listed for final
hearing on 17/2/2011. It is an incorrect
statement made by the petitioner that the case file
of the Tribunal was not available on the date of

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hearing i.e. 17/2/2011. The petitioner along with
the counsel for some reason or the other which is

best known to them, chose to remain absent. It
shall not be out of place to submit that appearing

counsel before the Tribunal for the petitioner was
well available in the other matters before the
Tribunal. The petitioner was not present before the

Tribunal on 17/2/2011. Thus, considering the
overall conduct of the petitioner, the Tribunal
rightly chose to proceed under rule 15 of the EPF

Tribunal Procedure Rules which empowers it to

decide the merits on merit considering the facts of
the case. Thus the Tribunal rightly proceeded

under rule 15 and it considered the merits of the
case and passed order which is duly reasoned
order. Hence, the contention put forth by the

petitioner vide paragraph no.15 of the writ petition

stands denied completely, and warrants no
consideration, in view of the submissions made
above. It is submitted the petitioner having

committed defaults in payment of P.F. Contribution
is interested in litigation that too on a flimsy
grounds of financial hardships is not depositing the

amount as is apparent from the averments made in
the petition. This fact if also considered, shall
demonstrate the conduct of the petitioner in the
petition to protract the litigation. Hence, so called
absence of the petitioner on 17/2/2011 when the
Tribunal took up the matter is not on account of
genuine and bona fide reasons rather than it is an
act of protracting the litigation which has been

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rightly inferred by the Tribunal and accordingly
proceeded under rule 15 of the EPF procedure

rules.”

Therefore, as can be seen from the reply filed on behalf

of the respondent no.1, the denial that the petitioner has not been

granted an opportunity is not made with any deal of conviction.

7. The impugned order passed by the Tribunal has been

principally challenged by the petitioner on the ground that the

same has been passed in violation of the principles of natural

justice, as no opportunity was granted to the petitioner to

prosecute the said Appeal as the petitioner’s counsel could not

remain present in view of the fact that an impression was given

that the said Appeal was adjourned to 25/3/2011. It is pertinent

to note that the learned counsel Shri S.S.Ghate who was appearing

for the petitioner in the Tribunal has also filed his personal affidavit

stating that the Appeal was adjourned to 25/3/2011. In my view,

it would be just and proper, in the facts and circumstances as

indicated above, to set aside the impugned order passed by the

Tribunal and relegate the Appeal back to the Tribunal for a de novo

consideration by affording an opportunity to the petitioner.

Hence, the following directions.

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(i) The impugned order dated 18/2/2011
passed by the Employees’ Provident Fund

Appellate Tribunal is hereby quashed and
set aside and the matter is relegated back

to the Tribunal for a de novo
consideration.

(ii) The petitioner to appear before the
Tribunal on 8/8/2011 and the Tribunal
thereafter to decide the Appeal within

two months of the said date.

(iii) The Tribunal to take into

consideration the material that would be
placed by the petitioner and pass a
reasoned order and record findings in

respect of the contentions that would be

raised before it by the petitioner.

Rule is accordingly made absolute in

the aforesaid terms with parties to bear
their own costs.

JUDGE
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