The petitioner is aggrieved with the coercive steps initiated and partly concluded while the period of statutory appeal was not over.
2. It is an admitted fact that when the recovery proceedings were initiated, the period of statutory appeal was not over. This Court had stayed the recovery proceedings and directed the Assistant Provident Fund Commissioner to file an affidavit in explanation as to why coercive steps were taken when statutory appeal period is not over. The said respondent has filed an affidavit. Learned Senior Counsel Dr.S.Gopakumaran Nair appears for the respondent-Organization.
3. The learned counsel appearing for the petitioner relies on a judgment of this Court in W.P.(C).No.6107 of 2014 against the very same respondent-Organization and the officers in the very same region, wherein recovery proceedings initiated during the statutory period of appeal was interdicted.
4. The learned Senior Counsel appearing for the respondent-Organization, however, would rely on a Division Bench judgment of the High Court of Gujarat at Ahmedabad, in Letters Patent Appeal No.12 of 2010 in Special Civil Application Nop.3347 of 2009 dated 15.06.2011. The petitioner at least ought to have intimated an intention to file an appeal, is the contention urged. The Division Bench found that in the absence of any specific provision in the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 [for brevity “EPF Act”] prohibiting or restraining the authorities from taking any further action of recovery of the amounts due and payable by the employer, it is always permissible for the authorities to proceed ahead without waiting for the expiry of the statutory time period of appeal as provided under Section 7-I of the Act.
5. In the present case, the order Exhibit P3 was passed on 23.07.2014, which was received by the petitioner on 30.07.2014. The petitioner, hence, had time till 29.09.2014 to file an appeal before the Appellate Authority as provided under the statute. The officers of the respondent-Organization, however, initiated recovery and attached the Bank account by order dated 10.09.2014 and the 2nd respondent-Bank forwarded a Demand Draft dated 20.09.2014 for Rs.13,379.54 to the respondent-Organization without leaving any balance in the account. It was in this context that the officer was directed to submit an explanation as to why recovery was proceeded within the period of statutory appeal.
6. True, the statute dues not provide for any interdiction from proceeding with the recovery immediately on the order being passed. It is also to be noticed that the statute does not also provide for any intimation of intention to file statutory appeal. The provision to file statutory appeal as incorporated in the statute, is definitely a benefit conferred on the employer who has suffered the order and if recovery is effected, even when the statutory appeal period is not over, the same would invite allegation of an arbitrary exercise of power. An appellate remedy available to an assessee cannot be rendered nugatory, before even the statutory period is over. The statutory authorities would do well to keep in abeyance the recovery proceedings till the statutory period of appeal is over.
7. In any event, the 1st respondent-officer having filed an explanation in which it has been specifically stated that the amounts which were transmitted by the 2nd respondent by Demand Draft has not been encashed till now, this Court does not intend to proceed further in the matter.
7. It is also submitted by the learned counsel for the petitioner that the petitioner has now filed a statutory appeal along with an application for stay, evidenced at Exhibit P4, which is pending consideration before the authority. In such circumstance, the respondent-Organization would be entitled to encash the Demand Draft already received from the 2nd respondent; but on condition that no further proceeding for recovery shall be continued till the prayer for interim relief is considered by the appellate authority.
The writ petition is disposed of with the above observation.
vku.
Sd/-
K.Vinod Chandran, Judge ( true copy )