ORDER Shitla Pd. Srivastava, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner (Oil and Natural Gas Corporation Limited) against the respondents the Assistant Provident Fund Commissioner and the Regional Provident Fund Commissioner for issuing writ of certiorari to quash the order dated January 14, 1998 passed by the respondent No. 1, copy of which has been filed as Annexure-17 to the writ petition. The second relief sought for is writ of mandamus commanding the respondents not to implement the aforesaid order.
2. Annexure-17 to the writ petition is an order passed by the Assistant provident Fund Commissioner, the Sub-Regional Office, Dehradoon, exercising power under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as Act only). By this order the authority concerned has determined the money due from the petitioner which is a covered Unit under Code No. UP/ 1261, Dehradoon under the E.P.F and M. P. Act, 1952 for the period November 16, 1995 to July 30, 1997 read with Employees' Pension Scheme, 1995, i.e. against Account No. 10 and a sum of Rs. 21,66,58,410/- has been determined as payable by M/s.O.N.G.C.UP/1261, Dehradoon. It has further been ordered that in case the employer of the above mentioned establishment fails to deposit the payable amount as determined above in Account No. 10 in the S.B.I. and further fails to submit a copy of the paid challans pertaining to the aforesaid amount in the office of the Employees' Provident Fund Commissioner, Sub-Regional Office, Dehradun within seven days from the date of receipt of this order the same may be recovered as arrears of land revenue under Section 8 of the Act.
3. The brief facts, as stated in the petition leading to the present petition, are that the petitioner is a Corporation established with effect from February 1, 1994. Prior to that date it was a Commission established under Parliamentary Legislation known as Act No. 43 of 1959. The petitioner Corporation was established after the Commission and it inherited all rights and liabilities and all provisions relating to both the employer and the employees which were enforced in the Commission prior to the coming into force of the Corporation and it remained intact.The Corporation is engaged in promoting indigenous production of Hydrocarbons, self-reliance in technology as also promoting indigenous efforts in Oil and Gas related equipment materials and services, to assist in conservation of hydrocarbons, more efficient use of energy and development of alternate sources of energy, environment protection. It is further stated that in order to achieve these objectives the petitioner has a massive set of employees working in the corporation in different parts of the country. It consists both of officers and non-officers categories. It is stated that the petitioner corporation in order to keep healthy relations with the employees has been framing various remedial measures providing for the benefit of employees or class of employees working in the corporation and with this object the then Commission enacted "ONGC Self-Contributory Post Retirement and Death in Service Benefit Scheme, 1991" which was to be effective with effect from April 1, 1990. A copy of the said Scheme has been filed as Annexure-1 to the writ petition. It is further stated that the aforesaid Scheme of 1991 is formulated with basic object to take care of Post Retirement and Death in Service cases of all the officers and in order to meet their socio-economic needs and their families' welfare covering risk factor in the event of death while in service and with this objective, the Association of Scientific and Technical Officers a registered body under the Societies Registration Act, 1860 being the representative body of all officers of ONGC spread throughout the country, requested the management of ONGC to formulate a scheme to achieve the said objective. It is further stated that the scheme was envisaged with the involvement of ONGC officers taking into consideration all relevant factors like the number of persons joining the scheme in different age groups, mortality rate, age profile of the members of the scheme, present salary and growth of salary in coming years, inflation rate, rate of monthly contribution by the members etc. It is further stated that this scheme was formulated and presented to the Executive Committee for ONGC in its 57th meeting held at Delhi and the scheme was approved by the Executive Committee on April 28, 1990 and was circulated on April 29, 1990 requesting the officers to exercise their options in triplicate either in favour of the said scheme or against it. It is further stated that in pursuance of the circular some officers exercised their options and signed the terms of the settlement with the management of ONGC. This scheme was subsequently modified in view of the officers' request for giving more favourable treatment to the younger officers and the same was approved by the ONGC ip its 275th meeting held on November 5, 1990. It is further stated that the scheme was referred to the Government of India on April 3, 1991 which was approved by the Government of India on September 18, 1991 and a Board of Trustee was constituted to implement the scheme and to administer the same. Accordingly a trust was formed for the purpose of the scheme. The trust was written on October 23, 1991. The scheme was implemented with effect from April 1, 1990. It is further stated that the Central Government introduced the Employees Pension Scheme of 1995 and in paragraph 3 of the said scheme from and out of the contributions payable by the employer in each month under Section 6 of the Act or under the Rules of the Provident Funds of the Establishment which is exempted under clauses (a) and (b) of Sub-section (1) of Section 17 of the Act or whose employees are exempted under either paragraph 27 or paragraph 27-A of the Employees' Provident Fund Scheme, 1952, a part of the contribution representing 8.33% of the employees pay was to be remitted by the employer to the Employees' Pension Fund within 15 days of the close of every month by a separate bank draft According to paragraph 4 of the scheme the employer shall pay the contribution payable to the Employees' Pension Fund in respect of each member of the Employees' Pension Fund. It is further stated by the petitioner that the Scheme of 1995 further provided for the exemption from the operation of the Pension Scheme. The relevant paragraph is quoted in the writ petition which is being quoted hereinafter:
"Exemption from the operation of the Pension Scheme :
The Central Government may grant exemption to any establishment or class of establishment from the operation of this Scheme if the employees of the establishment are either members of any other pension scheme or proposes to be members of a pension wherein the pensionary benefits are at par or more favourable than the benefits provided under this Scheme."
4. The petitioner has further stated that initially there was Family Pension Scheme of 1971 which was enforced at the time of the commencement of the Employees' Pension Scheme of 1995. But under Clause 44 the same stood repealed with effect from November 16, 1995 on trie date the Employees' Pension Fund Scheme of 1995 was enforced. The contention of the petitioner in the writ petition is that under this Scheme of 1995 the Central Government was empowered to grant exemption as stated above. The petitioner further submits that Para 39 ofthe Scheme of 1995 also deals with exemption from operation of the Pension Scheme and the Central Government in order to implement Para 39 has been issuing clarification. from time to time and ultimately an amendment was brought with effect from March 16, 1996 by the Employees' Pension Amendment Scheme, 1996. The amended clause 39 has been quoted by the petitioner in the writ petition. In this clause words appropriate government has been used for granting exemption to any establishment which was earlier with the Central Government The petitioner has stated that application for exemption was to be received by the Regional Provident Fund Commissioner who was to obtain recommendations of the Central Provident Fund Commissioner and then to submit the same to the Central Government for the purpose of granting exemption. The contention of the petitioner is that pending disposal of the application for exemption, as stated above, the employer's share of contribution was not to be remitted to the Pension Fund as envisaged in sub-para (1) of Paragraph 3 of 1995 Scheme. It is further stated that there was six months period provided foraction to be taken by the authority concerned when the application for exemption was filed. The amended Clause 39 has been quoted by the petitioner, which is quoted herein below ;
"39. Exemption from the operation of the Pension Scheme :
The appropriate Government may grant exemption to any establishment or class of establishments from the /operation of this scheme, if the employees of the establishment are either members of any other Pension Scheme or proposed to be members of a Pension Scheme wherein the pensionary benefits are at par or more Favourable than the benefits provided under this scheme. Where exemption is granted to any establishment class of establishments under this paragraph, withdrawal benefits available to the credit of the employees of such establishment(s) under the ceased Family Pension Scheme, 1971 shall be paid, subject to the Consent of the employees, to the Pension Fund of the establishment(s) so exempted. An application for exemption under this paragraph shall be presented to the Regional Provident Fund Commissioner having jurisdiction by the establishment or class of establishment(s) together with a copy of the Pension Scheme of the establishment (s) and Other relevant documents as may be called for by him. On Receipt of such an application, the Regional Provident Fund Commissioner shall scrutinise it, obtain the recommendations of the Central Prdvident Fund Commissioner and submit the same to the apprbpriate Government for decision. Pending disposal of application for exemption under this paragraph employer's share of the contribution shall not be remitted to the Pension Fund as envisaged in sub-paragraph (1) of paragraph 3. An application for exemption presented under this paragraph shall be disposed of within a period of six months front the date of its receipt or such further time as may be extended for reasons to be recorded in writing. If the application for exemption is not disposed of within the period so specified, the exemption applied for shall be deemed to have been granted.
Explanation : For the purpose of this paragraph, the period of six months will count from the date on which the application for exemption is given in complete form to the satisfaction of the Regional Provident Fund Commissioner."
5. The contention of the petitioner is that since the scheme for officers Class of ONGC was more beneficial and a number of meetings were held in this connection between the officers glass and the Corporation at New Delhi and lastly on April 29/ 30, 1997 further meeting regarding parameter of the settlement was arrived at between the representative of the management and the representative of the recgnised unions wherein it was agreed between them that the Pension Scheme will also be extended with effect from November 16, 1995 to all the employees of the unionised categories and the scheme is at the final stage. It is further stated that the petitioner submittted an application for exemption as per amended scheme under Para 39 to the Additional Central Provident Fund Commissioner with a prayer to grant exemption. A copy of the application has been filed as Annexure-4 to the writ petition. It is stated that on February 27, 1996 the RPFC (Regional Provident Fund Commissioner), of Central Office wrote a letter in pursuance of the application of the petitioner dated February 14, 1996 to apply to the Kanpur authority, namely, the RPFC, Kanpur. The petitioner on April 3, 1996 made an application for exemption under Para 39 and on April 12, 1996 the respondent No. 2 directed the petitioner to produce the Pension Scheme of the Corporation employees. It is stated that on April 30, 1996 the petitioner submitted Pension Scheme known as PRES and on April 11, 1997 the representative of the petitioner also called on the RPFC, Kanpur and a request was made to grant relaxation/exemption vide letter dated April 21, 1997. On July 31, 1997 a direction was issued to deposit 8.33% of the employees' share as stipulated in paragraph 3(1) of 1995 Pension Scheme. It is further stated that the Additional Central Provident Fund Commissioner visited Saharanpur on May 12, 1997 and the representatives of the ONGC met him for the purpose of expediting the decision on exemption application. On June 9, 1997 the representative of the petitioner again met RPFC with the same request and a reminder was also given on July 12, 1997. The petitioner has further stated that in the meantime the Assistant Provident Fund Commissioner, Dehradoon initiated, proceeding under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 regarding the amount due under the Employees' Pension Scheme, 1995 for a period from November 16, 1995 till July 30, 1997 i.e. with effect from the date the Employees' Pension Scheme was introduced till July 30, 1997 and a notice was given on July 31, 1997. It is further stated that the respondent No. 2 vide order dated September 9, 1997 asked the petitioner to submit various modalities containing the exemption procedure. The petitioner submitted that though the petitioner has submitted the requisite application for exemption on April 3, 1996 along with requisite scheme of 1990 but the respondent No. 2 wrote a letter to the petitioner for enclosing the modalities. The petitioner stated that on October 16, 1997 he has replied that he had already applied for exemption in accordance with Para 39 of 1995 Scheme and it was mentioned that no letter dated August 8, 1997 was received by him. The petitioner has further submitted that on November 13, 1997 the petitioner again sent letter intimating the respondents that the scheme had already been furnished and the employees of the ONGC are already in favour of 1991 scheme. But no reply was given to the correspondence made by the petitioner after the receipt of the letter dated September 9, 1997. The contention of the petitioner is that the power under Section 7A of 1952 Act was subject to what para 39 has provided in 1995 legislation and if there was an application for exemption pending determination as to whether there was a valid or viable pension scheme applicable to the employees of any establishment then the Employees' Pension Scheme was not applicable till the time the determination has to be made by the appropriate authority, namely, the Central Government and the Assistant Provident Fund Commissioner, Dehradoon could not as such exercise the power which was to be exercised by the appropriate Government or could not adjudicate on the merits of the application pending before the RPFC, Kanpur for the purpose of reference to the Government. Petitioner's further contention is that both sets of employees, namely, the officers class and non-officers class of the unionised categories have accepted that the Scheme of PRES was more beneficial and it has to be applied to the non-officers class. Few of the officers had made an agitation in the Bombay High Court regarding the enforcement of 1991 Scheme. The Bombay High Court has directed the employees to sit over it and evolve a method for the applicability of 1991 Scheme. It is further stated that the petitioner submitted a written statement. A reply was also filed by the Enforcement authority of the same under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. A rejoinder affidavit was also filed by the petitioner. December 22, 1997 was fixed by the respondent No. 1 for the purpose of filing rejoinder affidavit. The petitioner accordingly filed rejoinder affidavit and on the said date counsel of the petitioner, namely, Sri S.D. Mohan, Advocate of Dehradoon fell ill and submitted an application for the adjournment of the case along with medical certificate. It is stated that the respondent No. 1 made a remark that it was very cold and consequently the counsel could fall ill due to old age. However, he did not dispose of the said application and did not intimate any next date and no argument was advanced on behalf of the petitioner. No argument was also advanced by the enforcement authority. On January 14, 1998 an order was passed by the respondent No. 1 under Section 7A directing the petitioner to make a deposit of Rs. 21,66,58,410/-. This order is dated January 14, 1998 which is under challenge in this writ petition.
6. The contention of the petitioner is that this order was ex parte as no argument was advanced before the authority concerned and no date was fixed on his adjournment application and a long judgment has been delivered by the respondent No. 1 quoting rules intended to be submitted on behalf of the Enforcement Branch which was neither produced nor stated nor referred in the written statement. The grounds of attack to the aforesaid order as made by the petitioner is that the respondent No. 1 committed manifest error by stating that he has to decide the question of maintainability of the exemption application and he has held that the said application is not pending before the appropriate authority under 1995 Act, namely, Employees' Pension Scheme of 1995 under Para 39 thereof and it is not complete. The grievance of the petitioner is that this finding given by the respondent No. 1 is totally incorrect. All papers were furnished as required by the respondent No. 1 and an application for exemption was pending before the RPFC who was only to send the same to the appropriate Government and the decision was to be taken by the appropriate Government. The respondent No. l has no jurisdiction to take any decision as taken by him. The second ground of attack is that out of 22,000 officers class less than 1000 have filed writ petition and that too was heard by Bombay High Court and a direction was issued by Bombay High Court to decide mutually and amicably and the matter is being sorted out between the management and recognised unions. As per direction issued by the Bombay High Court the respondent No. 1 had no jurisdiction to take decision as has been taken by it. The petitioner has alleged that certain observations and reference to the matters of Employees 'Association of Calcutta, New Delhi are irrelevant as they are not recognised unions and the unionised categories have already accepted in 1991 Scheme. The submission of the petitioner is that when the petitioner has challenged the very applicability of the Act, namely, Section 7A. The respondent No. 1 admits that the case Para 39 is applicable then he has no jurisdiction to decide the dispute. He has wrongly taken the view that no Scheme is pending and if the Act is not applicable then there is no remedy available to the petitioner, as such, the appeal is not maintainable and the writ petition is the only remedy. No reasonable opportunity was given to the petitioner's counsel as the adjournment was not allowed. Therefore, the order should be quashed.
7. From the facts mentioned above it is clear that the entire controversy stands in a very narrow campass. Admittedly the petitioner is a corporation. The petitioner has admitted that there is a scheme framed by it for the benefit of its employees both officers class and non-officers class. The petitioner also admits that in the absence of any such scheme as framed by it, it was liable for depositing of its share towards the Employees Provident Fund Scheme. But under the amended legislation he could pray for exemption of such deposit and as the application for exemption was filed no proceeding under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act 1952 could be initiated and if such an application was filed the authority concerned had no jurisdiction to initiate proceedings under Section 7A and further that if the application for adjournment was filed the authority concerned should have considered the matter on facts and law and decided the same after giving opportunity to the counsel for the petitioner. But as the application for adjournment was not disposed of and as no date was fixed the impugned order is ex parte.
8. Heard learned counsel for the parties. But before mentioning the argument of the learned counsel for the parties it is necessary to mention the relevant provisions of the Act and the Scheme which are applicable to the present case. The relevant provisions are as under :
9. The Parliament enacted the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and under Section 3 thereof the Act was applicable to establishment in existence or to other establishment for which notification was issued by the Central Government. Under Section 5 of the said Act, the Central Government was to frame scheme to be called the Employees' Provident Fund Scheme for the purpose of provident fund under this Act for any class of employees specified therein. Section 6 of the aforesaid Act mentions the contribution which shall be paid by the employers to the fund which shall be 12% of the basic wages plus dearness allowance. Section 6A of the aforesaid Act provides Employees' Family Pension Scheme and life insurance to the employees of the establishment. Section 7A of the Act empowers the Central Government to amend or vary the provisions of the Scheme, Family Pension Scheme etc. and such modification was to be certified by the Parliament. Section7A of the Act empowers the various officers to determine the amount due from the employers under the provisions of the Act for the Family Pension Scheme or the life insurance scheme etc. Such powers of these various officers are enumerated in Sub-section (2) of Section 7A which includes all powers vested in the Code for certain purpose. The order made under this: Section shall be final and cannot be challenged in the Court. It is stated by the petitioner that Section 7A has been amended by Amending Act No.33 of 1988 and under clause (c) of sub-section the authority has been given right to determine the cases of the employers and the employees which have not been heard. Under Sub-section (4) the right has been given against the ex parte order and in that case the authority can be applied within three months and under Sub-section (3) of Section 7A a reasonable opportunity has to be given for representing the case. It is stated that under Subsection (3) of Section 7A as amended by amending Act the authority has to decide the question whether the dispute arises regarding the applicability of the Act to an establishment or not and to determine the amount. The authority under the Act, according to the petitioner is the Provident Fund Commissioner. The provision of appeal has also been made thereunder.
10. Before quoting the relevant paragraphs and relevant provisions of the Act and Scheme it is necessary to have a glance of the counter-affidavit which has been filed on behalf of the respondents by Sri Sunil Kumar Kalra, Area Enforcement Officer, Sub-Regional Office, R.P.F.C., district Dehradoon, who is looking after the case on behalf of the respondents. In paragraph 5 of the counter-affidavit it is stated that because of the inter se litigation between the staff members of the petitioner the scheme as prepared by the petitioner could not (sic) be given effect to even till date. It is further stated in paragraph 7 of the counter-affidavit that the scheme itself has not attained the finality as such the settlement of the scheme by the petitioner is not legally justified particularly in view of the order passed by the Bombay High Court on December 2, 1996. In respect of the judgment of the High Court it is stated in the counter-affidavit that the Bombay High Court has held that the Scheme was not viable and beneficial even to the officer class and since the scheme has not become final the petitioner cannot get any benefit of that scheme under the Act. The respondents have further stated that the application for exemption was not complete in all respects and it is still pending incomplete. The petitioner cannot derive any advantage merely from the fact that the application which is incomplete is pending in the department concerned. With regard to the deposit to be made as per law it is stated in the counter-affidavit that since the application itself is not complete in all respects the finding recorded in the order in question is correct and the petitioner cannot derive any advantage when the application is pending. The talk between the Additional Central Provident Fund Commissioner and the petitioner during his visit to Saharanpur has been denied for want of knowledge. In paragraph 28 of the counter-affidavit it is stated that the application for exemption is not pending because it was not complete in all respects to the satisfaction of the R.P.F.C., therefore, it cannot be sent to the appropriate Government for consideration. It is further stated that the respondent No. 1 has not adjudicated the application on merit. The clarification has been given that as the application was not complete in all respects to the satisfaction of the R.P.F.C. there was no question of fresh consideration of the same by the appropriate Government. It is stated that the application for exemption can be forwarded to the appropriate Government only when the same is complete in all respects to the satisfaction of R.P.F.C. In paragraph 32 of the counter-affidavit the respondent No. 1 has denied that any remark was made by it. It is stated that when the application for the adjournment was being considered the medical certificate was received in the office of the respondent No. 1 and it was produced along with the file as no one was present on behalf of the petitioner to press the application for adjournment. Therefore, just to verify the sanctity of the medical certificate and as the doctor's telephone number was available on the medical certificate the respondent No. 1 deputed the deponent (Sunil Kumar Kalra) to verify the fact from the doctor who had given the said certificate. It is further stated that when the deponent contacted the doctor he was informed that there was no such illness which could have refrained the counsel Sri S.D. Mohan, who was authorised representative of the petitioner, from moving. It is further stated that the deponent asked for the clarification which was given by the doctor, who had earlier given the medical certificate mentioning therein that the illness was not of serious nature and consequently the proceedings were adjourned to 4.00 p.m. on the same day. It is stated that as no one was present, therefore, there was no question of intimating any next date and; proceedings were completed on the same day and judgment was reserved and as all materials were available on record the respondent No. 1 passed the impugned order which does not suffer any illegality. In paragraph 40 of the counter-affidavit it is stated that family pension scheme is social welfare scheme and till the scheme as framed by the petitioner is approved by the appropriate Government the petitioner is duty bound to comply with the provisions of the said scheme as enacted by the Parliament and as soon as the scheme framed by the petitioner is approved they can very well ask for the refund of the amount deposited by them. It is further stated that because of the amendment in the Act no appeal lies against the impugned order, therefore, the writ petition is not maintainable. It is stated that the order dated December 22, 1997 is not an ex parte order rather it is an order on merit where the petitioner has failed to place his submission because of his own. The order for recall of the aforesaid order has also been dismissed on January 4, 1998.
11. A rejoinder affidavit has been filed in reply to the averments made in the counter-affidavit. In paragraph 7 of the rejoinder affidavit the details of the scheme, its completion etc. has been mentioned. It is stated that the benefits arising out of 1991 scheme has to be examined by the Central Government and not by the Assistant Provident Fund Commissioner who is only the appropriate authority regarding the matter to grant exemption and to find out whether the benefits given by the organisation are at par with or more favourable than any other scheme. The power has to be exercised not by the Assistant Provident Fund Commissioner but by the appropriate Government. The Assistant Provident Fund Commissioner is the only executing authority. It is further stated that in respect of this scheme meeting was held with the General Secretaries of the Recognised Unions from April 21, 1996 to April 23, 1996 at New Delhi and resolutions were passed in the meeting. The resolution has been quoted in paragraph 7 of the rejoinder affidavit which is not to be quoted here. In paragraph 8 of the rejoinder affidavit it is stated that after protracted negotiations the Union agreed that existing P.R.B.S. would be introduced in respect of unionised categories of employees in lieu of 1995 Scheme with certain modifications and this was to be effective with effect from November 16, 1995. It is further stated that a sum of 120 crores is in deposit for the benefit of the scheme at the instance of the Corporation. The question of finality of the scheme has to be decided by the competent authority and not by the Assistant Provident Fund Commissioner. The petitioner was entitled to the benefit given under the scheme and the authority had no jurisdiction to pass the impugned order. In paragraph 12 of the rejoinder affidavit it is stated that the application was submitted by the petitioner for relaxation/exemption on February 14, 1996/ April 3, 1996 and the direction of the Regional Provident Fund Commissioner to submit the copy of the P.R.B.S. was complied with by the petitioner by sending letter dated April 30, 1996. Subsequently, another copy was sent on request and several reminders were sent to him and the petitioner was not asked to send any other document throughout the period from September 9, 1997 and on February 20, 1998 an application has been given for grant of exemption under para 39 of the Scheme of 1995. In paragraph 17 of the rejoinder affidavit it is stated that in para 39 of the Scheme of 1995 a period of six months or any time extended thereafter has been given to dispose of the application for exemption and as time has not been extended the exemption shall be deemed to have been granted. In paragraph 31 of the rejoinder affidavit it is stated that Sri S.D. Mohan is a renowned lawyer on the labour side in Dehradoon and he was engaged by the petitioner. He is aged about 70 years. He submitted an application along with medical certificate for the adjournment and requested that the case be fixed in the first week of January, 1998 and this was his first adjournment on medical ground. The respondent No. 1 did not pass any order and did not intimate for the subsequent date and collected evidence against medical certificate and decided 1 the case on the same day which is the denial of the ample opportunity. There is no order of rejection of the application for the adjournment. The order was not passed in presence of the petitioner or even in the presence of the person who presented the application nor any order was passed till 4O'clock. An amendment application, supplementary counter-affidavit etc. have been filed in the present case.
12. From the facts stated in the writ petition, counter-affidavit and rejoinder affidavit it is apparent that certain factual aspect and some legal position are admitted to the parties. The factual aspect which is admitted to the respondents is that a Scheme has been prepared by the petitioner and an application for exemption under para 39 of the Scheme 1955 was filed by the petitioner as provided under Section 7A of the Act. On that application certain queries were made by the authority concerned. It is also admitted to the respondents that application for the adjournment was filed along with medical certificate and without giving any information to the applicant or his counsel Sri S.D. Mohan, the respondent No. I sent one of its employees to verify from the doctor regarding the medical certificate and a report was obtained behind the back of the counsel Sri S. D. Mohan The petitioner has also admitted that neither the application was allowed nor it was rejected nor any information was sent to the counsel that the authority is not inclined to adjourn the case and it will be heard.
13. The legal position which is admitted to the respondent is that in view of the provisions of the Act of 1952 and the Scheme of 1995 as amended up to date if any scheme has been framed by the petitioner application for exemption can be filed and that the appropriate Government is the only competent authority to pass such order of exemption. It is specifically stated in the counter affidavit that as the Scheme has not been finalised and exemption has not been granted by the Central Government the petitioner cannot get any benefit merely because the application has been filed which is incomplete at the best the amount deposited by him under the Scheme of 1995, as amended up to date can be refunded in case the exemption is granted.
14. From the plea taken in the counter-affidavit it is apparent that everywhere the respondents have stated that the application for exemption was incomplete therefore, it could not be f6rwarded to the appropriate Government and is still pending.
15. From the above mentioned facts the question which is involved in the present case and which is to be decided is as to whether the application which was filed was incomplete, it is pending or it shall be deemed to have been allowed as provided under the amended scheme. The second question which was to be decided was as to whether the respondent No. I could consider the validity of the application filed by the petitioner for exemption while deciding the question involved under Section 7A of the Act and take a decision that the application is not maintainable and further that the petitioner is not entitled for any exemption. The third question which was to be decided by the authority concerned was that as to whether he had jurisdiction to take any decision on the point of exemption or it was only the appropriate Government to take such decision and whether he had also power to detain the application and not to forward it to the appropriate Government for decision unless he is satisfied that the application is complete in all respects and the last question which is to be decided in this writ petition is as to whether the order in question is ex parte and whether reasonable opportunity of hearing was , given to the petitioner and whether the respondent No. 1 has exceeded its jurisdiction in getting the enquiry made regarding the genuineness of the medical certificate of the counsel of the petitioner and disbelieving the same on the basis of the evidence collected by him behind the back of the learned counsel for the petitioner.
16. Sri L. P. Naithani, Advocate, has appeared on behalf of the petitioner and on behalf of the respondents Sri U. N. Tiwari and Sri Satish Chaturvedi have appeared as counsels.
17. Heard learned counsel for the parties and perused the record.
18. Before discussing the argument of the learned counsel for the parties it is necessary to point out the relevant provisions of the Act and Scheme. Employees' Provident Funds and Miscellaneous Provisions Act, 1952 is an Act to provide for the institution of the provident fund, Employees' Family Pension Scheme and Employees' Deposit-linked Insurance Scheme for the employees in the factory and other establishments. It provides for the institution of the compulsory provident fund, family pension and deposit-linked Insurance Scheme for the benefit of the employees in the factories and other establishments.
Under Section 2 definitions have been given : (a) Appropriate Government means :
(i) in relation to an establishment belonging to, 5 or under the control of the Central Government or in relation to an establishment connected with a railway company, a major port, a mine or an oilfield or a controlled industry (or in relation to an establishment having departments'. or branches in more than one State) the Central Government, and
(ii) in relation to any other establishment the State Government.
19. The authorised officers have also been' defined as :
The Central Provident Fund Commissioner, Additional Central Provident Fund Commissioner, Deputy Provident Fund Commissioner, Regional Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the Official Gazette.
20. There is no dispute that the case of the petitioner is covered by Sub-clause (a) of Section 2 and the Central Government is the appropriate Government in this case.
21. Section 5 of the Act deals with the Employees' Provident Fund Scheme. The relevant provisions of this Section is quoted below :
5. Employees' Provident Fund Scheme ; (1) The Central Government may, by notification in the Official Gazette, frame a Scheme to be called the Employees' Provident Fund Scheme for the establishment of provident funds under this Act for employees or for any class of employees and specify the (establishments) or class of (establishments) to which the said Scheme shall apply (and shall be established, as soon as may be after the framing of the Scheme, a Fund in accordance with the provisions of this Act and the Scheme).
(1-A) The Fund shall vest in, and be administered by; the Central Board constituted under Section 5A.
(1-B) Subject to the provisions of this Act a Scheme framed under Sub-section (1) may provide for all or any of the matter specified in Schedule II.
(2) A Scheme framed under Sub-section (1) may provide that any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in this behalf in the Scheme.
22. The next relevant Section is Section 6 of the Act regarding Contributions and matters which may be provided for in Scheme. Sections 6A, 6B and 6C all deal with the framing of the Scheme and its modification etc. The next relevant Section is Section 7A of the Act which is as under :
7-A : Determination of moneys due from employees : (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 provisions of this Act, the Scheme or the Family 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 the Court under the Code of Civil Procedure, 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 purposes of Section 196 of the Indian Penal Code.
(3) No order shall be made under Sub-section (1) unless (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 reasons 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 said 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 gfound that there has been 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 subsection (4) unless notice thereof has been served on the opposite party.
Section 7B provides for review of orders passed under Section 7A. Section 7I deals with the provisions of Appeal to the Tribunal which is as under:
7-1: Appeals to Tribunal : (I) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority under the proviso to Sub-section (3), or Sub-section (4) of Section 1, or Section 3, or Sub-section (1) of Section 7A, or Section 7B (Except an order rejecting an application for review referred to in Sub-section (5) thereof) or Section 7C or Section 14B, may prefer an appeal to a Tribunal against such notification or order.
(2) Every appeal under Sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.
23. The Employees' Pension Scheme, 1995 has been framed exercising power conferred by Section 6A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952(19 of 1952) by the Central Government. Para 3 of the Scheme is relevant which is being quoted herein below :
"3. Employees' Pension Fund : (1) From and out of the contributions payable by the employer in each month under Section 6 of the Act or under the rules of the Provident Fund of the establishment which is exempted either under Clauses (a) and (b) of Sub-section (1) of Section 17 of the Act or whose employees are exempted under either paragraph 27 or paragraph 27-A of the Employees' Provident Fund Scheme, 1952, a part of contribution representing 8.33 per cent of the employees' pay shall be remitted by the employer to the Employees' Pension Fund within 15 days of the close of every month by a separate bank draft or cheque on account of the Employees' Pension Fund contribution in such manner as may be specified in this behalf by the Commissioner. The cost of the remittance, if any, shall be borne by the employer.
(2) The Centra] Government shall also contribute at the rate of 1.16 per cent of the pay of the members of the employees' Pension Scheme and credit the contribution to the Employees' Pension Fund.
Provided that where the pay of the members exceeds rupees five thousand per month the contribution payable by the employer and the Central Government be limited to the amount payable on his pay of rupees five thousand only.
(3) Each contribution payable under sub-paragraphs (1) and (2) shall be calculated to the nearest rupee fifty paise or more to be counted to the next higher rupee and fraction of a rupee less than fifty paise to be ignored.
(4) The net assets of the Family Pension Scheme, 1971 shall vest in and stand transferred to the Employees' Pension Fund."
24. Para 39 of the aforesaid Scheme deals with exemption from the operation of the Pension Scheme which is quoted hereinbelow :
"39. Exemption from the operation of the Pension Scheme :
The appropriate Government may grant exemption to any establishment or class of establishments from the operation of this Scheme, if the employees of the establishment are either members of any other pension scheme or propose to be members of a pension scheme wherein the pensionary benefits are at par or more favourable than the benefits provided under this Scheme. Where exemption is granted to any establishment or class of establishments under this paragraph, withdrawal benefits available to the credit of the employees of such establishment(s) under the ceased Family Pension Scheme, 1971 shall be paid, subject to the consent of the employees, to the pension fund of the establishment(s) so exempted. An application for exemption under this paragraph shall be presented to the Regional Provident Fund Commissioner having jurisdiction by the establishment or class of establishments together with a copy of the pension scheme of the establishment(s) and other relevant documents as may be called for by him. On receipt of such an application, the Regional Provident Fund Commissioner shall scrutinise it, obtain the recommendations of the Central Provident Fund Commissioner and submit the same to the appropriate Government for decision. Pending disposal of application for exemption under this paragraph employees' share of the contribution shall not be remitted to the pension fund as envisaged in sub-paragraph (1) of paragraph 3. An application for exemption presented under this paragraph shall be disposed of within a period of six months from the date of its receipt or such further time as may be extended for reasons to be recorded in writing. If the application for exemption is not disposed of within the period so specified, the exemption applied for shall be deemed to have been granted.
Explanation : For the purpose of this paragraph the period of six months will count from the date on which the application for exemption is given in complete form to the satisfaction of the Regional Provident Fund Commissioner."
25. Learned counsel for the petitioner Sri L. P. Naithani, urged that admittedly the order is ex varte, therefore, there is complete denial of opportunity of hearing. His submission is that under Section 7A of the Act when the inquiry is to be made by the Central Provident Fund Commissioner or of any other authority mentioned under Section 7A of the Act he will be an officer conducting the inquiry and it has same power as are vested under the Code of Civil Procedure, 1908 for trying a suit and the inquiry shall be deemed to be a judicial proceeding and as provided under Sub-clause (3) of Section 7A of the Act no order shall be made under Sub-section (1) unless the employer concerned is given a reasonable opportunity of representing his case. The order is contrary to Section 7A of the Act. His submission is that when the application was filed for the adjournment with medical certificate the authority concerned has no jurisdiction or authority to get an inquiry made regarding the genuineness of the medical certificate without giving opportunity of hearing as such at both the stages there is complete denial of giving opportunity of hearing and is in violation of principles of natural justice. For that purpose he has placed reliance in a case, reported in AIR 1989 SC 1038; Shriram Durga Prasad and Fatehchand Nursing Das v. Settlement Commissioner (II & WT). He has further placed reliance in a case, reported in AIR 1978 SC 851, Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, AIR 1978 SC 597, Smt. Maneka Gandhi v. Union of India, AIR 1990 SC 48 (sic).
26. In support of his submission regarding getting evidence behind the back of the petitioner reliance has been placed in a case, reported in AIR 1969 SC 255, Chaturbhuj Pandey v. Collector, Raigarh.
27. Sri L. P. Naithani, learned counsel for the petitioner has further argued that the respondent No. 1 was not competent to exercise power under Section 7A of the Act because of Para 39 of 1995 Scheme. His submission is that when the application for exemption was presented under Para 39 which was to be disposed of by the Central Government and the application for exemption was to be presented before the Regional Provident Fund Commissioner, having jurisdiction along with the copy of the Pension Scheme and other relevant documents, as may be called for by him and he was to refer the matter to the appropriate Government and pending disposal of the application for exemption contribution was not to be remitted. His contention is that as the application for exemption was to be considered by the appropriate Government and the Regional Provident Fund Commissioner was only to make scrutiny and refer it within six months to the appropriate Government and if he has not referred the same he had no power to take decision on the application. His further contention is that the Regional Provident Fund Commissioner, under Para 39 of the Scheme has authority to receive the application and call for the relevant documents, if any, required by him. As the petitioner had submitted the requisite documents which were required by the Regional Provident Fund Commissioner it has no authority to retain the application beyond the period of six months. It is, submitted that the application was filed which was complete in all respects, according to the petitioner, and calling of other papers does not mean that it was incomplete and the Commissioner was required only to make scrutiny of the application. No information was given to the petitioner that the application is incomplete, therefore, the Regional Provident Fund Commissioner exercising power under Section 7A of the Act has no jurisdiction to overlook that application which was to be referred to the appropriate Government by him under Para 39 of the Scheme. His submission is that Section 7A of the Act gives a different power to the authority concerned. The Act and Para 39 of the Scheme give different power to the Regional Provident Fund Commissioner in scrutinising the application and to refer it to the appropriate Government. According to the learned counsel for the petitioner the same authority has power to pass an order under Section 7A of the Act but he has no power to pass any final order on the application filed for exemption under Para 39 of the Scheme. Therefore, the respondent No. 1 or respondent No. 2 while passing the order under Section 7A of the Act could not have considered the merit of the application under para 39 of the Scheme. He has further submitted that in the counter affidavit specially in paragraph 15 it is admitted to the respondents that the application for exemption was not complete in all respects and is still pending incomplete. This means that the application is pending and Para 39 of the Scheme does not say that if the application is incomplete it shall not be deemed to be pending. For that purpose he has placed reliance on a case, reported in AIR 1957 SC 503, Asgar Ali Nazar Ali Singaporewalla v. State of Bombay, wherein the Court has decided the meaning of word 'pending'. The relevant paragraph is paragraph 21 of the judgment. This case was a criminal case and the question was with regard to the applicability of certain amended provisions of the Act, 1952 known as Criminal Law Amendment Act, 1952 which was enacted by the Parliament on July 28, 1952 providing for a mere speedy trial of certain offences. The question involved in this case was as to whether the Presiding Magistrate has jurisdiction to continue the trial and acquit the appellant-accused as the same was ousted by the Amending Act. It was contended that since the date the said Act came into force the special Magistrate alone had jurisdiction to try the accused for the offences under Section 161 read with Section 116 of the Indian Penal Code that the duty of the Presidency Magistrate was to transfer this case to the Court of the Special Magistrate for Greater Bombay, specially appointed to try such offences by the impugned Act, therefore, the order of acquittal of the appellant and accused Nos. 4 and 5 was erroneous in law and without jurisdiction. The question arose as to whether the case shall be deemed to be pending on the date when amending law came into force. From the record of this case it was apparent that the defence concluded its address on September 26, 1952 and the Presidency Magistrate has delivered his judgment on September 29, 1952. On September 23, 1952 the Government of Bombay by notification appointed the Special Judge to try the offences specified under the notification. The appointment was notified on September 26, 1952.: The Act was enacted on July 28, 1952. The question was as to whether the case was pending on the date of the commencement of the Act. In this context it was held that on July 28, 1952, i.e. on the date of the commencement of the Act the case was pending before the Presidency Magistrate and on that date the prosecution has closed its case and the appellant had not yet been called upon to enter upon his defence. The word pending has been interpreted by the Court. The Court took; the definition of STROUD'S JUDICIAL DICTIONARY, ' EDN. 3, Vol.3, page 2141, which is quoted hereinbelow :
"A legal proceeding is "pending" as soon as the same (sic) commenced and until it is concluded, i.e. so long as the Court having original cognizance of it can make an order on the matters in issue or to be dealt with therein."
28. On the basis of this Sri L. P Naithani has urged that an application for exemption, according to the own admission of the respondents, was pending on the date when the order was passed, proceeding under Section 7A of the Act should not have been concluded. He has further placed before the Court the definition of word 'pending' as mentioned in WORDS AND PHRASES PERMANENT EDITION, Vol.31-A. The relevant portion is quoted hereinbelow :
"In General A suit is "pending" as long as the judgment remains unsatisfied. Jaubert Bros, v. Landry La, App 15 So 2d 158, 160."
"Pending "is defined to mean depending, remaining undecided, not terminated. Sanford v. Sanford28 Conn. 6, 20.
The word "pending" legally speaking means a matter undecided. Smalley v. State, Tex. 127 S.W. 225, 226.
The word "pending" means undecided or undisposed of. Hutchen v. Dresser, Tex, 196 S.W. 969,971.
"Pending" means "depending" "remaining undecided" "not terminated". Stockard v. Hamilton 180 P 204, 205, 25 N.M. 240.
In certain situation, "pending" means during and in others it means "until" or "while awaiting". Wiegardt v. State, 175 P. 2d 969, 972,27 Wash 2d 1.
A common law action cannot be said to be "pending" before means process is issued. Joseph Rowry & Sons v. Odell & Bros., 4 Oglo. St. 623,627.
Action is "pending" until final judgment is rendered in trial Court, but not while in reviewing Court. P,B. Realty Co. v. Wallace Ohlo App. 93 N.E. 2d 603,6 04.
A matter is deemed to be "pending" until it reaches a final determination in the appellate Court. In re Egan, 123 NW, 478, 488, 24 S.d.301.
The term "pending" means nothing more than undecided. Wentword v. Town of Farmington, 48, N. 11, 207,210: Clindenin v. Alien, 4N. 11,385, 386 : Buswell v. Babbitt, 18A, 748, 65, N. 11, 108.
Action to quiet little and to have Oil and Gas lease declared void was "pending" from time of its commencement until its final determination upon appeal. Rieckhoff v. Consolidated Gas Co. 217, P 2d 1076, 1080, 123 Mont. 555.
"Pending" is defined as "during" before the conclusion of; prior to the completion of. United States v. 2,049, 85 Acres of Land, More or less, In Nucces Country, Tex, D.C. Tex., 49F, Supp. 20, 22.
An action is "pending" from the time of filing the complaint until its final determination on appeal. Filcoff v. Superior Court of Los Angeles Country, 123, P 2d, 540, 542,50 Cal. App.2d 503.
An action which has been prosecuted to final , judgment is no longer "pending" within rule ' relating to abatement of suits by reason of another action pending. Zarsky v. Mose Tex. Civ, App. 193 S.W.2d 245.
An action is "pending" from time it is commenced until its final determination Spencer v. McDowell Motor Co. 72, S.E. 2d, 598,603,236 N.C. 239. McFetter v. McFetters, 14, S.E. 2d, 833,835,219NC. 731."
29. His submission is that the application which remains pending unless it is finally disposed of it shall be deemed to have been disposed if it is finally considered by the appropriate authority. For disposal he has placed reliance on the definition given in WORDS AND PHRASES, PERMANENT EDITION, 3 Vol. 12-A, which is quoted below :
"The words "disposal" and "distribution" are often used synonymously. Scullyv. Squir, 90 P573,577, 13Idaho,417,30L.R.A.N.N. 183.
Where defendant, who was charged with unlawfully selling and depositing of mortgaged cattle in the State and with intent to default, hauled mortgaged cattle out of State and sold them there, defendant's conduct amounted to, a "disposal" of the cattle in the State. Roather v. State, 137 P 2d, 599, 601 76 Okl Cr.418 In Comp Law SC 32 (28), prohibiting the fraudulent sale, transfer, secretion or disposal of property with intent to defraud creditors -"disposal" means to pass the property over into the control of another to part with it or get rid of it, exercise finally one's power of control over it. Herold v. State, 31 NW. 238, 201 21 Neb. 50 51.
"disposal" as used in a will which first gives a life, estate, and then an unequivocal power of disposal, means not merely use of the proceeds in whatsoever manner the devises desires National Surety Co. v. Jurrett, 121 S.E. 201 204 96 W.Va.420.
Under 12 OKEST Ann (1382, authorising a temporary injunction when defendant is about to dispose of his property with intent to defraud his creditors, the word "disposal" implies to exercise control over; to direct or assign for a use; to pass over into the control of some one else; to alternate bestow, or part with. First Nat Bank v. Mills', 272 P 840, 843, 131, Okl. 180 A pledged of part of a stock of merchandise by a merchant to one of his creditors, to secure the payment of a debt owed by the merchant to the creditor, is a "disposal" of the goods pledged within the meaning of the Bulk Sales Law Sections 4804-4807 of the General Statutes of 1915. C.B. Norton Jewelly Co. v. Maddock, 222 P113, 114, 115 Kan. 108.
A "disposal" is the transference of any thing into new hands, or alienation of or parting with property; and where a merchant, having given a mortgage of his goods and fixtures, is unable to make payment and surrenders to the mortgagee all or a substantial part of the goods and fixtures It is a "disposal" thereof within the meaning of the Bulk Sales Law (Rev. St. 1923, 58 101) Joyee v. Armourdale State Bank, 274, P 200 202 127 Kan. 539."
30. On the basis of these decisions and definition his submission is that the application is still pending. Sri Naithani, learned counsel for the petitioner, has further submitted that Section 7-A of the Act is not attracted as the authority concerned was to calculate the amount to be paid by the petitioner and since no opportunity of hearing was given therefor, Section 7-A of the Act is not attracted. On the point of maintainability of the appeal it is stated that the order passed by the respondent No. 1 is arbitrary and it is abuse of the process of law. Therefore, the principle of natural justice has been violated and the appeal remedy is not attracted. For that purpose he has placed reliance in a case, reported in (1992-II-LLJ-149) (SC) Nagaraj Shivarao Karjagi v Syndicate Bank Head Office Manipal.
31. In reply Sri Satish Trivedi, learned counsel for the respondent has submitted that under Section 7A of the Act the authority had power to make inquiry for determining the amount from any employer under any provisions of the Act, the Scheme of Family Pension or Insurance Scheme as the case may be and while making inquiry it had jurisdiction to see the papers available before it or the evidence adduced and if the opportunity of hearing was given to the petitioner and he did not avail the opportunity rather only filed application for adjournment without waiting for orders of the authority on the application for adjournment absented from inquiry the authority had no option but to decide the point on the basis of the materials available to it. Therefore, when the application was filed for adjournment it was the duty of the counsel for the petitioner or the person who filed the application to wait till an order is passed on the adjournment application. His further submission is that when the officer had any doubt regarding the genuineness of the medical certificate and cause for seeking the adjournment and got the inquiry made through its official it cannot be said to be an arbitrary act of the officer. Therefore, there is no illegality in the order and order cannot be said to be an ex parte. His further submission is that as the respondents had jurisdiction to entertain the application for exemption under Para 39 of the Scheme and the application was to be filed complete in ail respects to the satisfaction of the respondents and the respondents were required to make scrutiny of the application and was to refer to the appropriate Government and since in the instant case the application was not found to be complete in all respects it was not forwarded and no exemption was granted to the petitioner, therefore, the respondent Nos. I and 2 have full authority to determine the amount under Section 7A of the Act and the application which was incomplete shall not be deemed to be a pending application, therefore, provision of Para 39 of the Scheme is not attracted. He has also submitted that from the judgment of Bombay High Court which is on record it is not clear that any case is pending before the Bombay High Court nor there is any averments made in the writ petition, therefore, merely because the Bombay High Court has made certain observation regarding the scheme it shall not be deemed that the Scheme is still pending. He has referred certain letters to prove that from these letters it is not clear that the application for exemption was complete in all respects. He has further submitted that as the matter has not been referred to the appropriate Government for exemption, therefore, it cannot be said that the application for exemption shall be deemed to have been granted. Exemption can only be granted by the appropriate Government if the application complete in all respects has been filed and has been referred to the appropriate Government for consideration. His contention is that the word 'pending' in this case shall be deemed when the application is placed before the appropriate Government and not merely because it is lying before the appropriate authority in its incomplete form. His further submission is that the application was submitted to the Regional Provident Fund Commissioner, Kanpur. Neither the Scheme nor any other documents were annexed and the Regional Provident Fund Commissioner, vide his order dated September 8, 1987 directed the petitioner to produce certain documents but the petitioner failed to produce the same. In this context it has been submitted by Sri Chaturvedi learned counsel for the respondents that till this date the petitioner has not produced those documents, therefore, under Section 7A of the Act the authority has jurisdiction to determine the amount as no exemption was granted. His submission is that the deeming clause will not apply in this case as the matter was not placed before the appropriate Government. His submission is that if the petitioner was aggrieved by the order passed under Section 7A of the Act he could have filed review under Section 7B or appeal under Section 7I of the Act and writ petition cannot be filed. He has further submitted that by the impugned order no prejudice has been caused to the petitioner as the order is a considered order. He has placed reliance upon a case, reported in State Bank of Patiala v. S. K Sharma (1996-II-LLJ-296) (SC), in which Janakinath Sarangi v. State of Orissa 1969 (3) SCC 392, was referred. He has further placed reliance on a case, reported in K. L. Tripathi v. State Bank of India (1984-I-LLJ-2)(SC), Managing Director, FCIL Hyderabad v. B. Karunakar (1994-I-LLJ-162) (SC).
32. Sri Chaturvedi has submitted that if the alternative remedy is available and statutory Tribunal has been constituted the alternative remedy cannot be void. For this purpose he has placed reliance in a case, reported in U. P. Jal Nigam v. Nareshwar Sahai Mathur 1995 (1) SCC 21, State of U. P. v. Labh Chand, (1993-II-LLJ-724) (SC), Chandrama Singh v. Managing Director, U, P. Co-operative Union Lucknow, 1991 All LJ 2413, Assistant Collector of Central Excise, Chandan Nagar, West Bengal v Dunlop India, Limited, AIR 1985 SC 330, Shyam Kishore v. Municipal Corporation of Delhi, AIR 1992 SC 2279. His submission is that the petitioner may be directed to file appeal or review and the matter cannot be seen in the writ jurisdiction.
33. Sri J. N. Tiwari, appearing as senior counsel for the respondents has also submitted that since the petitioner's application for exemption was not provided under Para 39 of the Scheme, therefore,] the application shall neither be deemed to be pending nor it shall be deemed to have been allowed and the authority concerned has rightly determined the amount as provided under the Act and the petitioner is liable to deposit the same. His further submission is that even if the same Scheme has been proposed by the petitioner and that scheme is under consideration and has not reached to its finality as is clear from the judgment of Bombay High Court, the petitioner is not entitled for any exemption and proceeding under Section 7A of the Act shall not be stayed.
34. Sri Naithani, learned counsel for the petitioner has replied to the argument advanced by Sri J. N. Tiwari and Sri Satish Chaturvedi. His submission is that the scheme framed mentions that large number of officers have become member and large number of officers have proposed to become the member of the scheme therefore it cannot be said that the scheme is not provided under the law. His submission is that unless the application is concluded it shall be deemed to be pending. For that purpose he has placed reliance in a case, reported in AIR 1971 SC 1100 (sic). On the point of maintainability of the writ petition he has submitted that if the order is in violation of principles of natural justice it is null and void and the parties are not bound to avail the appeal or review remedy. He can file only a writ petition. For that purpose he has placed reliance in a case, reported in, R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commissioner MR 1989 SC 1038, Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, AIR 1978 SC 851, Smt. Maneka Gandhi v. Union of India, MR 1978 SC 597.
35. After hearing learned counsel for the parties at length I am of the view that in this case the controversy to be decided by this Court is firstly; as to whether the writ petition is maintainable or not or the petitioner should have filed review or appeal as provided under Section 7B or Section 7I of the Act. From a perusal of the order in question it is clear that the order is not an order as provided under Section 7A of the Act as quoted above. Section 7(3) of the Act specially says that no order shall be made under Sub-section (1) unless the employer concerned is given a reasonable opportunity of representing his case. From the admitted fact by the respondent in the counter-affidavit it is clear that the order was passed without hearing the counsel for the petitioner Sri S.D. Mohan or any representative of the petitioner. It is also clear that the adjournment application was neither allowed nor rejected. Rather behind the back of the counsel for the petitioner the Authority tried to make inquiry regarding the genuineness of the medical certificate and the cause shown by the applicant for the adjournment and if it was found by the authority that the cause shown for adjournment was not sufficient it should have rejected the application and fixed a date for further hearing in the case or should have insisted for the argument on the same day. The conduct of the authority in keeping the application pending for some time on the same day and making inquiry behind the back of the learned counsel for the petitioner is something which cannot be appreciated. After all a counsel files a medical certificate which was in the shape of evidence that he is not well that evidence should not have been rejected unless the person concerned was given an opportunity to explain the inquiry made from Dr. Negi. It will not be out of place to mention here that the proceeding was judicial proceeding as mentioned in Section itself. Therefore, the authority concerned should have applied his judicious mind and not have acted as a party interested in the case. It has no jurisdiction to collect the evidence against the medical certificate filed by the learned counsel for the petitioner and if it is assumed that while making inquiry he could do so then it may be observed that the inquiry was to be conducted with regard to the amount as provided under Section 7A of the Act and not with regard to the adjournment application or the medical certificate issued by the doctor and if he was of the opinion that the grounds shown for the adjournment is not sufficient he should have at least given opportunity of hearing to the petitioner or his counsel, therefore, the order is an ex parte order.
36. Sri Naithani has cited case, reported in R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commissioner (II & WT) (supra). In this case Section 245D of Income Tax Act, 1961 was interpreted by the Court. Section 245D of the Act is quoted below:
(1) On receipt of an application under Section 245C, the Settlement Commissioner shall call for a report from the Commissioner and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commissioner may, by order, allow the application to be proceeded with or reject the application.
Provided that an application shall not be rejected under this sub-section unless an opportunity has been given to the applicant of being heard.
37. The Apex Court of the country in paragraph 6 of the judgment held that in view of the principles enunciated by this Court in State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 as also the observations in ADMINISTRATIVE LAW by H.W.R. wADE, 5th Edition, Pages 310, 311 that the Act in violation of principles of natural justice or a quasi judicial act in violation of the principles of natural justice is void or of no value. As stated above it is mentioned in Sub-clause (2) Section 7A of the Act that any inquiry shall be deemed to be a judicial proceeding, therefore, I am of the view that without giving any opportunity of hearing principles of natural justice have been violated and this case is covered by the decision cited above. Sri Naithani has placed reliance in a case, reported in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi (supra). In this case it was held that where the Election Commission has passed an order professedly under Article 324 of the Constitution and Section 153 of the Representation of People Act, 1951 and the order is within the scope and ambit of Article 324 of the Constitution, if there is any illegality in the exercise of the power under Article 324 or under any provision of the Act, Section 100(1)(d)(iv) will be attracted to it. If exercise of a power is competent either under the provisions of the Constitution or under any provision of law, any infirmity in the exercise of that power is, in truth and substance, on account of non compliance with the provisions of law, since law demands of exercise of power by its repository, as in a faithful trust, in a proper, regular, fair and reasonable manner. Article 329(b) of the Constitution rules out the maintainability of the writ petition in such a case.
38. The argument was that if there was any provision under the Act for giving an opportunity of hearing the authority concerned should have not passed an ex parte order. For the same purpose reliance has also been placed in a case, reported in Smt. Maneka Gandhi v. Union of India (supra). The Apex Court of this country in this case in paragraph 57 of the judgment has considered the procedure prescribed by the Passport Act, 1967 for impounding a passport. The Court observed in the following manner:
"The question immediately arises, does the procedure prescribed by the Passport Act, 1967 for impounding a passport meet the test of this requirement? Is it 'right or fair or just? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principles of audi alteram partem. Any procedure which permit impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now it is true, that there is no express provision in the Passport Act, 1967 which requires that the audi alteram partem Rule should be followed before impounding a passport, but that is not conclusive of the question if the statute makes itself clear on this point, then no more question arises. But even when the statute is silent the law may in a given case make an implication and apply the principle stated by BYLES, J. in Cooper v. Wandsworth Board of Works, 1863 14 CBNS 180:
"A long course of decisions, beginning with Dr. Bentley's case (1723)1 Str 557 and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature." The principle of audi alter am partem which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemojude in sua causa and audi alteram partem. We are not concerned here with the former since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport?"
39. From the reading of this judgment it is clear that the Court considered the case where there was provision of opportunity of hearing. In the present case there was specific provision under Section 7A(3) of the Act for giving opportunity of hearing. Sri Naithani has further placed reliance in a case of Chaturbhuj Pandey v. Collector, Raigarh (supra). He has farther submitted that the opportunity of hearing was not given even when the authority got an evidence from the doctor against the certificate issued by him while verifying the truth of the adjournment application. This was also against the rules of natural justice. In this case it appears that in land acquisition while assessing the market value of the land acquired the appellate Court after conclusion of the argument considered certain documents which were not part of the record. The Court held in paragraph 5 of the judgment that document should not have been considered and the Court excluded the document from consideration.
40. Sri Naithani, learned counsel for the petitioner has further argued that the document which was received by the authority concerned on the basis of its own inquiry was not part of the record as nobody has filed it, therefore, that document should have been excluded or it should not have been relied upon and opportunity of hearing should be given and the application should have either been allowed or rejected. His contention is that at this stage also there was denial of opportunity of hearing. Sri Satish Chaturvedi has submitted in reply to the argument advanced by the learned counsel for the petitioner Sri L. P. Naithani that the inquiry should be held and the inquiry is completed before the arguments have to advance, therefore, when the inquiry was completed and order was to be passed it cannot be said that the inquiry was ex parte. For that purpose he has placed reliance in a case, reported in Dr. M. H. Dasamma v. State of Andhra Pradesh (1973-II-LLJ-271)(SC). His contention is that the argument could not be a part of the inquiry. I am not satisfied with the argument of Sri Chaturvedi on this point. When opportunity of hearing is specifically mentioned under Section 7A(3) of the Act, before passing any order under Sub-clause (1) reasonable opportunity of representing his case must be given. Admittedly, in this case no reasonable opportunity of hearing was given as the application for adjournment was neither rejected nor information was given that the matter will be heard on the same day. For the context Sri Chaturvedi has submitted that no prejudice has been caused to the petitioner by the impugned order as if ultimately he gets exemption from the appropriate Government the money deposited by him shall be refunded, therefore, the writ petition is not maintainable. For that purpose he has placed reliance on State Bank of Patiala v. S. K. Sharma (supra). The Apex Court of this country in this judgment specially in paragraph 34 has summarised the principle of reasonable opportunity and in sub-para (3) of paragraph 34 following observations have been made :
"In the case of violation of a procedural provision, the position is this; procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz. whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively, if it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for."
The argument of Sri Chaturvedi that no prejudice has been caused I am not convinced. In this very judgment it is stated that if it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the inquiry. Therefore, if the petitioner has submitted that he wants to place his case but he was not ready because his counsel is ill, this adjournment should have been granted or refused and without adopting this the Authority should not have directed the case. Therefore, this case does not help the respondents.
41. Reference has also been made by Sri Chaturvedi to a case, Jankinath Sarangi v. State of Orissa (supra). This case is not applicable to the facts and circumstances of the present case because in the case cited by Sri Chaturvedi the question was as to whether principle of natural justice has been violated in the conduct of the inquiry when the petitioner was denied right to lead evidence in defence and that be was not given inspection of some material which was used against him but was collected behind his back. The Court held that there was no violation of principle of natural justice. The questions which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt, the replies were not put in the hands of the appellant but he saw them at the time when he was making the representation and curiously enough he used those replies in his defence and they were not collected behind his back and he had an opportunity of so using them in his defence. Here in the case, in hand, it is admitted to the respondents that the evidence was collected by the respondents themselves for nullifying the allegations contained in the adjournment application and the medical certificate and that was not shown to the counsel Sri S.D. Mohan or to the petitioner. Therefore, the petitioner has no opportunity either to rebut the evidence or to explain the same. The other case relied upon by Sri Chaturvedi is Managing Director, FCIL, Hyderabad v. B. Karunakar (supra). This was a service matter where the question was as to whether the delinquent employee in the disciplinary proceeding should be given a copy of the report by the authority concerned if he has not already secured it before coming to the Court or Tribunal and to give the employee an opportunity to show how his or her case was prejudiced because of non supply of the report and if after hearing the parties the Court came to the conclusion that non supply of the report would have made no difference to the ultimate findings and the punishment given the Court/Tribunal should not interfere with the order of punishment. On the basis of this Sri Chaturvedi has submitted that no prejudice has been caused to the petitioner. This case also does not help him because if the opportunity is given and this order is passed then it can be said that no prejudice has been caused. So on the basis of the observations made above I am of the view that reasonable opportunity was not given to the petitioner as provided under Section 7A(3) of the Act.
42. The other ground which is to be seen before going to the merit of the case is regarding the maintainability of the writ petition. Learned counsel for the respondents has urged that in view of Sections 7B and 7I of the Act review application should have been filed by the petitioner or appeal should have been filed. The writ remedy is not proper forum. For that purpose he has placed reliance in a case, reported in U. P. Jal Nigam v. Nareshwar Sahai Mathur (supra). This case arises out of the service matter in which question of promotion to the post of Chief Engineer, Level II, U. P. is involved. In this case the Apex Court of the country held that when a statutory Tribunal was constituted specially to look into the grievance of Government servants, it is statutory obligation on the part of such Government servants, first to avail themselves of the statutory remedy. In case they are aggrieved against the order passed by the Tribunal, the remedy under Article 226 is always available to them and merely because the pleadings were complete the matter cannot be heard under Article 226. He has further placed in case, reported in State of U. P. v. Labh Chand (supra). This was also a case of Government servant. The other decision cited by Sri Chaturvedi is Chandrama Singh v. Managing Director, U. P. Co-operative Union, Lucknow (supra). This is Full Bench decision of this Court where Full Bench held in a case arising out of Industrial Disputes Act that if the petitioner has complained regarding the violation of Section 25F of the Industrial Disputes Act, 1947 the adequate and efficacious remedy of reference under the provisions of Section 10 of the Act is there and as the petitioner has neither pleaded nor proved as stated earlier as inadequate or in- efficacious the writ petition should be dismissed. The other decision is Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd (supra), wherein the Court held that if the alternative remedy is available then the Court should not grant relief even interim relief under Article 226 of the Constitution. The other decision relied upon is Shyam Kishore v. Municipal Corporation of Delhi, on the point of alternative remedy.
43. Sri Naithani, learned counsel for the petitioner has submitted that review should have been filed under Section 7B of the Act only when opportunity of hearing was given and proper order was passed by the authority concerned. He has submitted that scope of review as provided under Section 7B of the Act is very limited one. He has referred Section 7B of the Act, which is as under :
"7-B (1) Any person aggrieved by an order made under Sub-section (1) of Section 7A but from which no appeal has been preferred under this Act, and who, from the discovery of new and important matter or evidence, which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of such order may apply for a review of that order to the officer who passed the order."
His contention is that when no opportunity of hearing was given there was no question of filing review petition. So far as appeal is concerned his contention is that the appeal could have been filed only when the order was passed under Section 7A or 7B of the Act. And the order was passed under Section 7-A(1) but without giving any opportunity of hearing under Section 7A therefore, the order is not an order under Section 7A of the Act. Therefore, the alternative remedy of appeal is not proper remedy nor it is efficacious nor speedy.
44. After considering the arguments of both sides on the point of alternative remedy I am of the view that it is true that there is provision for appeal and review but as the authority concerned passed an order without giving any opportunity of hearing as provided under Section 7-A(3) of the Act and procured the evidence against the medical certificate the order is arbitrary and can be said to be an order passed not in exercise of jurisdiction in accordance with law. Therefore, filing of review or appeal will not be an efficacious speedy remedy and it cannot be said that this writ petition is not maintainable on account of availability of alternative remedy.
45. The third question which was to be decided by the authority concerned was as to whether the order under Section 7-A of the Act could have been passed when the application under Para 39 of the Scheme was filed and it was pending. In this very context a question arises as to whether the authority exercising power under Section 7A of the Act could give a finding that the application is not pending and determine the amount. A bare perusal of Para 39 of the Scheme, which has been quoted in preceding paragraph of this judgment will make it clear that it was for the appropriate Government to grant exemption and the application was to be filed before the Regional Provident Fund Commissioner who was required to make scrutiny and then to refer the matter to the appropriate Government and the appropriate Government was to take decision within aperiod of six months from the date on which the application for exemption is given in complete form to the satisfaction of the Regional Provident Fund Commissioner and during pending disposal of the application for exemption the employer's share of the contribution shall not be remitted to the Pension Fund Scheme. It is admitted to the respondents in paragraph 15 of the counter affidavit, which is as under:
"15. That the contents of paragraph 31 of the writ petition are not admitted as stated. Regarding submission of the application for exemption it is stated that since the application was not complete in all respects and is still pending incomplete, the petitioner cannot derive any advantage merely from the facts that an application, which is incomplete, is pending with the department."
Contrary to this in paragraph 28 of the same counter affidavit it is stated as under :
"28. That the contents of paragraph No. 48 of the writ petition are denied. It is stated that even an application for exemption is not pending because same was not complete in all respects to the satisfaction of the R.P.F.C....."
46. From the aforesaid two paragraphs of the counter affidavit the respondents have taken a self contradictory plea regarding the pendency of the application and as to whether filing of the application will be deemed to be a pendency unless a decision is taken or not is a question which was to be determined by the authority at the time of considering the application under Section 7A of the Act. Learned counsel for the petitioner has urged that as the application was filed and it has not been disposed of by the appropriate Government, therefore, it will amount to pendency of the application because unless the matter is sent to the appropriate Government it shall not be deemed that the application has been disposed of. His further submission was that if the application was filed whether it was complete or not is not to he judged by the respondents while exercising power under Section 7A of the Act. Learned counsel for the petitioner has placed before the Court the definition of word 'pending' and certain ruling on that point. Learned counsel for the respondent Sri J.N. Tiwari and Sri Chaturvedi have urged that when the application is complete in all respects and it is referred by the respondents to the appropriate Government and it reaches there then the pendency will start and then the appropriate Government shall dispose of the same within six months or within a period as extended by the appropriate Government. As the application was not complete in all respects and both proceedings i.e. under Section 7A and others and under Para 39 of the Scheme were to be decided by the same authority, therefore, while deciding the proceedings under Section 7A of the Act the respondents were competent to consider regarding the pendency of the application and its effect as to whether it is complete or not or whether it should be referred to the appropriate Government or not. His submission is that there is no infirmity in the order and it should be dismissed. Learned counsel for the parties further argued the case on merit but I think that as the judgment is ex parte and no proper opportunity of hearing was given to the petitioner it is not necessary for this Court to decide the controversy with regard to the pendency of the application or with regard to the jurisdiction of the respondents regarding the decision taken on the application under Para 39 of the Scheme because the observation or decision on that point will affect the mind of the authority while deciding the case afresh.
47. After considering all the facts and circumstances and the legal position I am of the view that the judgment passed by the respondent No. 1 dated January 14, 1998 should be set aside and the matter may be sent back to the respondent No. 1 to decide the proceeding under Section 7A of the Act afresh after giving opportunity of hearing to the parties concerned. It is made clear that Sri A. K. Dubey, Assistant Provident Fund Commissioner has already formed an opinion on this matter should be decided by some other officer competent to decide the controversy. From a perusal of Section 7A of the Act it is clear that the Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Dy. Provident Fund Commissioner, any Regional Provident Fund Commissioner or any Assistant Provident Fund Commissioner may determine the amount due from any employer under any provision of this Act. Therefore, there are other officers competent to decide this controversy.
48. I, accordingly, allow the writ petition, set aside the judgment and order dated January 14, 1998 passed by Sri A. K. Dubey, Assistant Provident Fund Commissioner, Sub-Regional Office, Dehradoon and remand the case back to the respondents to decide the controversy afresh after giving opportunity of hearing to the parties or by some other officer than Sri A. K. Dubey. There will be no order as to cost.