JUDGMENT
D.K. Seth, J.
1. The petitioner has challenged an order passed under Section 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, contained in Annexure-1 to the writ petition, being dated 2nd June. 1998. Learned counsel for the petitioner S. K. Srivastava contends that the said order for determination of the amount has been undertaken in view of the Circular dated 24th December, 1997. From the face of the order, it appears that the said order does not conform to the said Circular dated 24th December. 1997. which is Annexure-II to the writ petition, as such the order is per se illegal, and, therefore, it should be set aside. Accordingly, he contends that while calculating the amount, the authorities have taken into account identified class of employees irrespective of the facts whether they were in service or they are in service, who have not been enrolled as Provident Fund Members due to
amendment in paragraph 26 of the Employees’ Provident Fund Scheme, 1952. According to him. those who had left the service, their case cannot be included within the calculation by virtue of the provisions contained in the said Circular. Therefore, the said order impugned, contained in Annexure -I should be quashed.
2. Mr. Satish Chaturvedi, learned counsel for the respondents on the other hand contends that the order being an order passed under Section 7A(1) of the said Act, is appelable. As such on account of alternative remedy, the petition is not maintainable. Whether persons who had left service or not or enrolled or not, have been included or not. are disputed questions of fact, which cannot be gone into in writ jurisdiction. Therefore, writ petition should be dismissed.
3. I have heard learned counsel for both the parties. In my view, it appears that on account of existence of an alternative remedy, this writ petition may not be entertained by this Court. Therefore, it is not necessary to go into the merits of the case. All points taken in this writ petition, are being kept open for being agitated before the proper forum.
4. From the scheme of the Act, it appears that the order passed is an order under Section 7A(1)(b) of the said Act, clearly determining the amount due from the employer under the provisions of the Act, and the Scheme as the case may be. Here in these orders, amount due from the employer in respect of the identified class of employees have been determined. If there is any Infraction, the same is question of merit, based on facts, which can be gone into before the appropriate authority. Sub-section (iv) of Section 7A of the said Act itself provides that in case of an ex parte order, a remedy is provided for setting aside an ex parts order on the grounds mentioned in the said sub-section. Therefore, there is an existence of in-built safeguard provided in the section itself.
5. In the present case, as it appears from the order itself, the same was passed ex parte. which is also one of the ground agitated by Mr. Srivastava, counsel for the petitioner. Mr. Chaturvedi, however, contends that this ground, though advanced from the Bar, has not been specifically taken in the writ petition.
6. Be that as it may. the order itself shows that this is an ex parte order. If the petitioner is so advised, he can take this ground as well, which is kept open for being decided by the appropriate forum, if so agitated by the petitioner.
7. Apart from sub-section (4) of Section 7A, Section 7B also provides for another remedy available to the petitioner, through which, the petitioner can assail the said order on the ground that certain material facts, which could not be discovered by the petitioner at the point of time when the order was made and therefore, the order can also be reviewed by reason of the ground provided therein.
8. Then Section 7A itself provides for a regular appeal against an order passed under Section 7A(1) or an order passed under Section 7B. Sri Srivastava, however, very fairly concedes that there is a remedy open by way Of appeal. But according to him, the order is per se illegal. Therefore, he cannot be thrown to the remedy available by way of appeal. This is a case fit for being entertained by this Court in writ jurisdiction, is one of his contention.
9. I am afraid that such a contention can be entertained in view of three remedies as indicated above, being opened to the petitioner. If there is a course of regular appeal open, the same cannot be ignored and overlooked. The alternative remedy that has been provided in the Act itself, appears to be efficacious adequate alternative remedy. Then again in the present case, the question that falls for determination, being a disputed question of fact, as to
whether identified class of employees are either enrolled or not or whether their case could be included in the calculation or not, is surely a disputed question of fact, which cannot be decided in writ jurisdiction.
10. For all these reasons, this writ petition is dismissed on account of alternative remedy, keeping all points open to be agitated before the appropriate forum, as the petitioner might be advised.
11. The petition is, thus, dismissed on the ground of alternative remedy. No order as to costs.