Hon'ble Alok Mathur,J.
1. Heard Mr. Piyush Gupta who appear in person as well as Mr. Shailendra Srivastava, learned counsel for the respondents.
2. The writ petition has been filed to challenge the daily order dated 08.05.2018 passed by the Commissioner, Provident Fund. It is after a notice under Section 7A of the Employees Provident Fund Act, 1952 (in short the ''Act of 1952')
3. The petitioner in person submits that an issue of applicability of the Act of 1952 has been raised, but has not been taken up by the respondents in the proceedings under Section 7A of the Act of 1952. Accordingly, prayer is to set-aside the daily order impugned herein with a direction to close the proceedings under Section 7A of the Act of 1952. A reference of the Schedule appended to the Act of 1952 have been given to indicate that the society is not falling in any of the category of the establishment which are governed by the Act of 1952.
4. We have considered the submissions made by the petitioner and perused the record. Since the proceedings have been initiated under Section 7A of the Act of 1952, it would be gainful to quote the aforesaid provision:-
"7A. Determination of moneys due from employers. (1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order,
(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and
(b) determine the amount due from any employer under any provision of this Act, the Scheme or the 3[Pension] Scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary.
(2) The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the following matters, namely:--
(a) enforcing the attendance of any person or examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of witnesses, and any such inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860).
(3) No order 4[***] shall be made under sub-section (1), unless 5[the employer concerned] is given a reasonable opportunity of representing his case.
(3-A) Where the employer, employee or any other person required to attend the inquiry under sub-section (1) fails to attend such inquiry without assigning any valid reason or fails to produce any document or to file any report or return when called upon to do so, the officer conducting the inquiry may decide the applicability of the Act or determine the amount due from any employer, as the case may be, on the basis of the evidence adduced during such inquiry and other documents available on record.
(4) Where an order under sub-section (1) is passed against an employer ex parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show-cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry:
Provided that no such order shall be set aside merely on the ground that there has been an irregularity in the service of the show-cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer.
Explanation.--Where an appeal has been preferred under this Act against an order passed ex parte and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this sub-section for setting aside the ex parte order.
(5) No order passed under this section shall be set aside on any application under sub-section (4) unless notice thereof has been served on the opposite party.
5. The perusal of Section 7A shows not only proceedings for determination of the amount, but issue regarding the applicability of the Act. As and when an establishment raises an issue about the applicability of the Act of 1952, it has to be decided in the proceedings under Section 7A. The initial order shows that Commissioner Provident Fund had taken note of the aforesaid issue. Subsequently, the record was called to even determine the amount towards contribution. It is presumed to be in ignorance of the applicability of the Act, 1952, whereas the issue aforesaid would also be decided simultaneously.
6. In view of the above, we do not find any reason to cause interference of the daily order under challenge rather according to us, the writ petition is premature.
7. It is even under circumstances that order of the Commissioner under Section 7A of the Act, 1952 is appealable before the Tribunal, thus petitioner would otherwise be having remedy in case an adverse order is passed by the Commissioner Provident Fund.
8. The writ petition is accordingly, dismissed without causing interference in the daily order impugned herein.
Order Date :- 26.8.2019 A.K. Singh