(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr.H.D.Vasavada, holding brief of Mr.P.J.Mehta appearing for the appellant. This Letters Patent Appeal has been filed challenging the order of the learned Single Judge dated 26.9.2012 passed in Special Civil Application No.12395 of 2012 by which the writ petition has been dismissed.
2. Learned counsel for the appellant has urged that in view of section 26-B of the Employees Provident Fund Scheme, 1952, it should be identified as to who are beneficiaries of the employees provident fund and only those disputes can be decided by the Employees Provident Fund. Therefore, the appellant should be heard on the question of beneficiary and who are actual beneficiaries. This inquiry under section 26B of the Scheme has to take place prior to the proceedings are decided under section 7A of the Act. In this case, no such objection was taken by the appellant prior to the order was passed under section 7A of the Act. Thereafter, the appellant challenged the order under section 7A as well as the order passed in review before the Tribunal. The Tribunal also dismissed the case filed by the appellant. Thereafter, the order of the Tribunal as well as the order passed under section 7A were challenged by means of Special Civil Application no.4547 of 2011 which was withdrawn by the appellant without any liberty to file a fresh writ petition or challenge the orders in appropriate proceedings. After these orders became final, the appellant has filed the writ petition before the learned Single Judge claiming that the inquiry under section 26B be held. The learned Single Judge has has given its consideration in paragraphs 11 and 12 and has rejected the claim of the appellant. We reproduce paragraphs 11 and 12 wherein the learned Single Judge has recorded his findings as under:
"11. It is clear that the order dated 25.05.2004 under Section 7A of the Act, that has been annexed at Annexure-E to the present petition, is very same order that had been challenged in the Special Civil Application No.4547 of 2011. Further the order of the Tribunal dated 07.12.2010 that has been annexed at Annexure-H to the present petition was also under challenge in that petition. Though the aforesaid two orders have not been directly challenged in the present petition, however, learned advocate for the petitioner has made lengthy submissions on the aspect of inquiry under paragraph 26B of the EPF Scheme before passing of the said order under Section 7A of the Act. It has been submitted that this Court should consider the present petition as a Curative Petition and direct an inquiry to be held.
12. Whether or not, an inquiry under paragraph 26B of the EPF Scheme was held before passing of the order under Section 7A, is a matter that cannot be gone into by the Court, at this belated stage. The order dated 25.05.2004 under Section 7A was unsuccessfully challenged by the petitioner by filing a Review Application under Section 7B of the Act, that was dismissed vide order dated 05.11.2004. Further, the challenge to the orders dated 25.05.2004 under Section 7A of the Act was negatived in the Appeal filed by the petitioner before the Tribunal, vide order dated 07.10.2010. The aforesaid orders were assailed before this Court by filing Special Civil Application No.4547 of 2011, that was withdrawn by the petitioner, as is clear from order dated 22.07.2011 passed in the said petition. While permitting the petition to be withdrawn, the Court has not granted any liberty to the petitioner to challenge or raise any issue regarding any aspect of the matter, at a later stage. For this reason, this Court would not be inclined to look into the issue whether an inquiry ought to have been conducted under paragraph 26B of the EPF Scheme, and whether such an inquiry was in fact conducted or not. By filing this petition, the petitioner is attempting to re-open an issue that has already been closed. Having withdrawn the challenge to the order under Section 7A of the Act and that passed by the Tribunal, it does not now lie in the mouth of the petitioner to try to agitate the same issue under the guise of inquiry under paragraph 26B of the EPF Scheme, at this stage, by titling this petition as a “Curative” one. The prayers made in the petition seek a writ of mandamus from this Court. A writ of mandamus should be granted only, if the Court finds that any legal or fundamental right of the petitioner has been infringed. In the present case, after being unsuccessful in the long litigation that has ensued, and after withdrawing the challenge to the order under Section 7A of the Act and the order of the Tribunal before this Court, it is clear that no legal or fundamental right of the petitioner has been infringed, so as to persuade this Court to entertain the petition. "
3. We agree with the view taken by the learned Single Judge that at this belated stage, inquiry under section 26B cannot be directed to be held as the procedure under section 7A has already become final between the parties.
4. For the aforesaid reasons, we do not find any merits in this Appeal. This Appeal fails and is accordingly dismissed. As a consequence, Civil Application is also dismissed.
(V.M.SAHAI,J) (G.B.SHAH,J) ***vcdarji