ORDER
E. Padmanabhan, J.
1. M/s. Camtex Mill, the petitioner in W.P.No:18519 of 1997 has prayed for the issue of a writ of certiorarified mandamus calling for the records of the respondent relating to the proceedings TN/II/33154/Enf.1(5)/97 dated 9.6.197 quash the said order and direct the respondent to give proper opportunity before passing any order under Sec. 7A of the Employees Provident Fund and Miscellaneous Provisions Act either about the applicability of the Act or about the determination of Contribution and pass such further orders.
2. The very same petitioner in W.P.No: 18520 of 1997 prayed for the relief of certiorarified mandamus calling for the records of the respondent relating to the proceedings TN/II/33157/Enf.1(5)/KK-II/97 dated 13.10.1997 quash the said order and direct the respondent to give proper opportunity before passing an order under Sec. 7A of the Employees Provident Fund and Miscellaneous Provisions Act either about the applicability of the Act or about the determination of Contribution and pass such further orders.
3. Heard Mr. S. Ravindran, learned counsel appearing for the petitioner in both the writ petitions and Mr. V. Vibhishanan, learned standing counsel appearing for the respondent in both the writ petitions. With the consent of counsel for either side, the writ petitions are taken up for final disposal.
4. Mr. V. Vibhishanan, learned counsel for the respondents contended that the petitioner has the remedy of appeal before the Appellate Tribunal in terms of Section 7-I of the Employees Provident Fund and Miscellaneous Provisions Act and this court is not persuaded to accept the same as no purpose will be served in preferring an appeal in that proceedings of adjudication being ex parte and the proceedings being non speaking. Even if an appeal is preferred the appellate authority will not have materials before him to decide the points in issue. That apart, the writ petitions are pending since 1997 for nearly five years. Therefore, this court will not be justified in directing the petitioner to invoke remedy of appeal at this point of time. Hence the objection raised by Mr. V. Vibhishanan cannot be countenanced.
5. Extension of coverage notice was issued on 26.2.1997 by the respondent covering the petitioner’s establishment. An enquiry under Section 7A of the Act was conducted to determine the coverage, dues and to decide the applicability of the Act. The petitioner raised objections contending that the petitioner establishment is not covered by the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. On 3.6.1997. The petitioner’s representative ;and Advocate appeared before the respondent and produced documents to establish that the establishment was started on 11.4.1992. The petitioner also contended that it has engaged less than 20 workmen in all at all point of time. The respondent adjourned the enquiry to 9.6.1999 for further evidence.
6. It is the case of the petitioner that on 7.6.1997 itself the petitioner’s counsel sought for a short accommodation as he could not appear on 9.6.1997 as he hasto appear at Trichirappali. Such a request was handed over to the respondent on 7.6.1997. Without reference to the said request, the respondent proceeded further with the matter on 9.6.1997, determined the date of applicability of the Act on the establishment of the petitioner and also arrived at the dues payable by the petitioner with effect from May 1997. Challenging the said ex parte proceedings, the first writ petition has been filed. The petitioner also moved the respondent to set aside the ex parte proceedings dated 9.6.1997 assigning valid reasons for non appearance and also drawing the attention of the respondent to the earlier request submitted on 7.6.1997 for adjournment. Such application to set aside the ex parte proceedings is maintainable under section 7A(4) of the Act and the petitioner assigned valid reason namely its Advocate has to go to Trichirappalli on 9.6.1997 besides pointing out that a request has been submitted on 7.6.1997. The respondent rejected the said application to set aside the ex parte proceedings by order dated 13.10.1997. Being aggrieved, the petitioner has filed W.P. No. 18520 of 1997.
7. Mr. Ravindran, learned counsel for the petitioner persuasively and with all earnestness contended that the petitioner has been denied of valuable opportunity to place materials and to take part in the proceedings. The non appearance on the date of hearing was beyond the control and that in fact a request has been made in advance on 7.6.1997 to postpone the hearing scheduled on 9.6.1997. But without reference to the request for adjournment, ex parte adjudication has been passed. Without considering the bona fides, genuineness and sufficient reasons shown in the application to set aside the ex parte proceedings, the respondent has summarily rejected the application. It is contended that the respondent has acted arbitrarily and has failed to exercise the jurisdiction vested in it.
8. A perusal of the impugned order in W.P.NO: 18519 of 197 would show that on 9.6.1997 itself ex parte orders has been passed. Concedingly the petitioner has produced some materials at least on 3.7.1997 and ha taken part in the proceedings. But the said material has not been referred to, nor the respondent has adverted to the material evidence produced on 3.6.1997.
9. Further, on 7.6.1997 itself, in advance, the petitioner sought for postponement of the hearing scheduled on 9.6.1997 assigning valid reasons. Without reference to that orders have been passed. Before the respondent, also, no material, much less acceptable material was available. Yet, an adverse order has been passed despite the petitioner’s request for short accommodation. On mere surmises and adverse inferences, the proceedings dated 9.6.1997 has been passed. It is an arbitrary exercise. If the respondent had accommodated the petitioner at least for one more hearing, in respect of which, a request has been made in advance for postponement, the respondent would have collected the very materials and on that basis could have passed a speaking order.
10. Having mentioned that evidence was produced on 3.6.197, there is no discussion at all, nor the materials produced has been adverted to. Merely stating that in public interest the respondent has proceeded ex parte, the respondent has acted with undue haste. Had one more opportunity been given as the petitioner’s Advocate has to be away at a different place, at least on terms, the present situation could have been avoided by the respondent. Quasi judicial authority should also act reasonably, fairly and should not act with undue haste and arbitrariness. When a request has been made well in advance for adjournment assigning reasons, the respondent should have in fairness accommodated the petitioner by granting short adjournment. Therefore the proceedings impugned in W.P.No: 18519 of 1997 cannot be sustained as it is an arbitrary exercise of power which is in violation of Art. 14 of The Constitution.
11. Taking up W.P. No. 18520 of 1997, the order impugned dated 13.10.1997 it proceeds as if no sufficient cause has been shown for non appearance on 9.6.1997. The respondent has not even adverted to the request made by the petitioner on 7.6.1997 to postpone the hearing scheduled on 9.6.1997. by postponing the matter by few more days, the respondent could have avoided further delay. When a request has been made for adjournment on the ground that the Advocate who has already appeared had to be away, in fairness, the respondent should have considered the request and adjourned the matter at least for few days.
12. Further, the impugned proceeding dated 13.10.1997 proceeds as if no request for adjournment has been made on 7.6.1997. But the request was made in advance and it has also reached the hands of the respondent. Yet, the respondent had proceeded as if there has been no request and that no sufficient cause for non appearance has been shown for the enquiry on 9.6.1997. This approach of the respondent cannot be sustained at all. Hence the impugned proceedings dated 13.6.1997 is also cannot be sustained.
13. The petitioner has asserted that it has complied with the interim direction for remitting Rs.59,000/= as per the order dated 11.12.1997. To render substantial justice and to afford a reasonable opportunity at the initial stage of adjudication or assessment, while adding that the respondent should have acted reasonably and fairly, this court holds that both the impugned proceedings challenged in both the writ petitions are quashed.
14. In the result, writ petition No. 18519 of 1997 is allowed and the matter is remitted back to the respondent for de novo consideration after affording an opportunity. As the proceedings dated 9.6.1997 is quashed and the matter is remitted back to the respondent for de novo consideration after affording an opportunity, it is not necessary to allow W.P.No: 18520 of 1997 as the petitioner has only challenged the refusal to set aside the ex parte proceedings. Consequently, connected WP and WMPs are closed. No costs.
15. The sum of Rs.59,000/= already remitted or further amount, if any remitted shall be kept by the respondent in separate deposit till final orders are passed and the respondent shall keep the said sum until the proceedings reach finality.