BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 07/09/2011
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
W.P.(MD)No.14728 of 2010
and
M.P.(MD)Nos.1 and 2 of 2010
Sri Aurobindo Mira Matriculation
Hr.Sec.School represented by its
Director M.C.Abilash,
No.108, Nehru Nagar,
Bye Pass Road, Madurai - 625 010. ...... Petitioner
Vs
1. Employees' Provident Fund Appellate Tribunal,
(Ministry of Labour Employment,
Govt. of India), Scope Minar, Core II,
4th Floor, Laxminagar District Centre,
Laxmi Nagar, New Delhi - 110 092.
2. The Assistant Provident Fund Commissioner,
Employees Provident Fund Organisation,
Sub Regional Office,
No.1, Lady Doak College Road,
Chokkikulam, Madurai - 625 002.
3. The Recovery Officer,
Employees Provident Fund Organization,
Sub Regional Office,
No.1, Lady Doak College Road,
Chokkikulam, Madurai - 625 002. ....... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorari to call for the records pertaining
to the impugned order in A.T.A.848(13) 2007 dated 19.03.2010 of first respondent
and quash the same as arbitrary and illegal.
!For Petitioner ... Mr. T. Lajapathi Roy
^For Respondents... Mr. G. R. Swaminathan for R-2 and R-3
- - - - - --
:ORDER
The petitioner has approached this Court, with a prayer for
issuance of a Writ, in the nature of Certiorari, to quash the order dated
19.03.2010 passed by the Employees Provident Fund Appellate Tribunal, New Delhi.
2. The impugned order reads as under:-
“The order passed by the EPF authority under Section 7A is in
challenge in this Appeal.
The case of the appellant is that the appellant is an educational
institution managed by charitable trust. The E.O who visited the establishment
alleged that EPF Act is applicable. On the basis of the report, the 7A
proceeding was to started and a copy of the report supplied to him. It was seen
that the E.O included the teaching and no teaching staff and calculated
contribution wrongly. No time was allowed to him to place his case and the order
passed by the Authority is arbitrary one.
The case of the respondent is that the appellant appointed more than
20 employees and have not extended the benefit of EPF Act to the said employees.
So the assessment was made rightly.
It is contended that no opportunity was provided to the appellant to
place his case and the calculation made was incorrect one.
The learned Officer who represented the respondent supported the
order.
No material was available to show that there was error in the
calculation. The order reveals that notice was served on the appellant and he
appeared through the Advocate. The averment in the appeal memo also shows that
the accused appeared in the 7A proceeding. But had not co-operative. So the
order was passed as per the available matter.
In the case of ROMALA SAWAHAKARI CHILLI MILLS LTD., ..VS.. RPFC
reported in 2000 VOL (9) S.C.C. at page 540 the Lordship held that “if such
opportunity is not availed, the RPFC will be at liberty to decide the matter
appropriately”. In this case also, the appellant had not co-operated with the
authority, there is no illegality when the order was passed with the available
material. No inconsistency is noticed. Hence ordered that the appeal is
dismissed. The order of the authority is hereby confirmed. Copy may be sent to
both the parties and recorded be sent to record room”.
3. The petitioner was issued notice, by the Assistant Provident Fund
Commissioner, Madurai, for adjudicating the contribution due under Section 7-A
of The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952
(hereinafter referred to as “the Act”). The notice was issued in pursuance to
the inspection by the enforcement staff. The petitioner was summoned vide notice
dated 29.12.2006 for the date of hearing fixed on 23.01.2007. In pursuance to
the notice, the petitioner appeared with Advocate, and made a request for supply
of the copy of the list of employees, as reported by the enforcement staff. The
request was accepted, and the petitioner was supplied with the copy of the
Report of the enforcement staff, and the hearing of the case was adjourned.
4. On the adjourned date of hearing, again request was again made,
which was declined. In spite of the request of the adjournment having been
declined, the petitioner chose not to assist in the case. Accordingly, the order
was passed under Section 7-A of the Act, for recovery of amount due.
5. The learned counsel for the petitioner contends, that the
impugned order cannot be sustained, as this has been passed in violation of
principles of natural justice, as the adjournment was declined, without any
reason, which caused prejudice to the petitioner.
6. This contention of the learned counsel for the petitioner was
rightly rejected by the Appellate Tribunal, by placing reliance on the decision
of the Hon’ble Supreme Court in the case of ROMALA SAWAHAKARI CHILLI MILLS
LTD., ..VS.. RPFC (supra), as in the event of a person not availing of the
opportunity given, he cannot complain of the violation of principles of natural
justice.
7. It is well settled law, that principles of natural justice cannot
be defined in strait jacket formula, and has to be considered in the facts of
each case. Once it is proved, that the petitioner was given an opportunity,
which was not availed, it cannot be said, that there was any violation of
principles of natural justice.
8. The second contention of the learned counsel for the petitioner,
that the calculation has been wrongly made, also cannot be looked into at this
stage, as no such plea was raised before the learned Tribunal. It is also well
settled law, that the point not raised before the Tribunal, whose order is under
challenge, cannot be raised before this Court for the first time.
9. No merits. “Dismissed”.
No costs.
Consequently, the connected M.P.(MD)Nos.1 and 2 of 2010 are closed.
Dpn/-