IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 967 of 2012 In SPECIAL CIVIL APPLICATION No. 7516 of 2012 With CIVIL APPLICATION No. 9550 of 2012 In LETTERS PATENT APPEAL No. 967 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE G.B.SHAH ========================================= ============================================================= M/S RIDHI SIDHI PRINTS PVT LTD - Appellant(s) Versus COMMISSIONER & 1 - Respondent(s) ========================================= Appearance :
MR PH PATHAK for Appellant(s) : 1, None for Respondent(s) : 1 - 2.
========================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.B.SHAH Date :24/09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE G.B. SHAH)
1. This Letters Patent Appeal is filed against the order dated 2.7.2012 passed by learned Single Judge in Special Civil Application No.7516 of 2012.
2. The petitioner company is engaged in the business of Textiles. The establishment of the petitioner Company was started in April, 2008 and was allotted Employee's Code No. GJ/SRT/31647. According to the appellant-petitioner, it is operating that account and is regularly depositing the amount of Provident Fund, in accordance with law. It is stated by the appellant that upto March, 2009, it has deposited such amounts. Proceedings under section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short, “the Act”) were initiated by the Employees Provident Fund (EPF) organisation w.e.f. April 2008 to March, 2009. The grievance of the appellant is that before the impugned order dated 31.12.2009 under section 7A of the Act fixing the liability of the appellant for Rs.11,72,690, no summons were served to it. This order was challenged by way of filing Special Civil Application No.7516 of 2012 which was rejected by order dated 2.7.2012 by the learned Single Judge.
3. Learned counsel for the appellant submitted that the appellant was not given fair opportunity of hearing before passing the order fixing the liability of the appellant, as the said order is not a speaking order. He submitted that learned Single Judge has without appreciating the contentions raised by the appellant, rejected the petition. He further submitted that learned Single Judge has failed to appreciate that the report relied upon by Assistant Provident Fund Commissioner was not supplied to the appellant and thus it was unable to give its defence on the report by Enforcement Officer. He submitted that there is nothing on record to show that the appellant was given dozen of chances to appear, as observed by learned Single Judge. He submitted that once learned Single Judge decided the petition on merit, remedy by way of appeal before the authority became redundant. He contended that an order under Section 7A is not a reasoned order particularly when it does not mention names and details of the employees who were identified by the Assistant Provident Fund Commissioner and liability of the employer can be fixed only of those employees who are identified. Thus there is violation of principle of natural justice. He finally submitted that the citations relied on by the appellant before the learned Single Judge were not considered by the learned Single Judge.
3.1. Over and above the aforesaid submissions, learned counsel for the appellant also submitted written submissions. Drawing attention of this court on the said written submissions, he further argued that as such the appellant had attended 7A inquiry proceedings. The appellant was not present on 6.4.2009 as notice was not received and lastly the date on which it was heard was on 24.12.2009 and the intimation was not served to the appellant. As per the record, the petitioner was intimated under summons No.GJ/SRT/31647/E-I/II/III/7A dated 3.3.2009 and the proceedings was fixed for hearing on 25.3.2009. It is not the say of the appellant that prior to 25.3.2009 the notice was duly served or not. During the course of oral submissions, learned counsel for the appellant also vehemently argued that the appellant had appeared before the authority except on the first and last day of hearing i.e. on 25.3.2009 and on 31.12.2009. It seems that in between the said period of first and last, the appellant has remained present on the fixed date and accordingly he had notice of the date of fixed hearing and had sufficient time to appear before the authority. From the above, it appears that it is not the case of the appellant that the show cause notice was not duly served at all on him. We are of the opinion that the appellant had not come with clean hands before this court and filing of review petition instead of preferring appeal is nothing but clear abuse of process of law because anyhow the appellant wants to prolong the litigation.
3.2. Learned counsel also submitted that the issues were raised before the authority and before the learned Single Judge but the ground that the report submitted by the Enforcement Officer which was produced on 24.12.2009 was not supplied to the appellant and the Asstt. Provident Fund Commissioner relied only on the said report and hence it is violation of principles of natural justice. In our view, the learned Single Judge has taken care of the above issues in para 9 of the order dated 2.7.2012 in Special Civil Application No. 7516 of 20012 which reads asunder:
“9. The learned advocate for the petitioner has laid much emphasis on the submission that the impugned order is not a speaking one and does not contain reasons, inasmuch as the names of the employees have not been mentioned. A perusal of the impugned order reveals that as per the report of the Enforcement Officer, the names of the employees with Form No.6A are available with the Department. The petitioner has been directed to make the payment of dues as per the Table contained in the impugned order, which contains the details of the period, wages, and account numbers. The impugned order contains all the account numbers. Had the petitioner required the names of the employees, it could have demanded them from the respondents, but it has not cared to do. The petitioner was well aware of the proceedings and that several adjournments were given, but has still not appeared before the authority on the date of final hearing. The petitioner has also not provided any record, therefore, the submission made by the learned advocate for the petitioner that the impugned order is an unreasoned and non-speaking one, cannot be accepted. Even otherwise, the said order is a detailed and reasoned one. The petitioner has chosen not to file an appeal against this order, as per Section-74(4) of the Act, but has, instead, filed an application for review under the provisions of Section-7B of the Act.”
From the above it is clear that the appellant has not remained present with record and therefore, the authority had proceeded on the basis of the report of the Enforcement Officer and the said action in no way can be said to be illegal or violation of principles of natural justice and more particularly in light of the provisions of Section 7A (3A) of the Act.
4. We have perused the impugned judgment. Learned Single Judge has elaborately dealt with the provisions of Section 7A of the Act. Learned Single Judge has observed in para 8 of the judgment that the appellant-petitioner has remained consistently absent on all those dates in spite of intimating under summons No. GJ/SRT/31647/E-I/II/III/7A dated 3.3.2009 and that as per sub-section (3A) of Section 7A, the officer is empowered to pass the order if the employer fails to appear or produce the record after having been called upon to do so. As the appellant has neither appeared nor produced the record, respondent No.2 has proceeded to pass the impugned order on 31.12.2009. On the submission of the learned counsel that the impugned order is not a speaking one and that it does not contain reasons, learned Single Judge has clearly observed that the impugned order reveals that as per the report of the Enforcement Officer, names of the employees with Form No.6A are available with the Department. The appellant has been directed to make payment of dues as per the Table contained in the impugned order which contains details of the period, wages and account numbers. The appellant did not care to demand names of employees. Learned Single Judge has observed that though the appellant-petitioner was well aware of the proceedings and that several adjournments were given, it has not appeared before the authority on the final hearing and, therefore, learned Single Judge has not only not accepted the contention of learned counsel for the appellant that the impugned order is not a speaking one but also observed that though ample opportunity of hearing was given to the appellant, it did not avail such opportunity and thus held that the said order is a detailed and reasoned one. Learned Single Judge also observed that instead of filing appeal under section 7B(4), the appellant has chosen to file review application against the impugned order. Learned Single Judge has also dealt with all the decisions relied upon by learned counsel for the appellant and rejected the petition, against which this appeal has been filed.
5. In support of his submissions, Learned counsel for the appellant has placed reliance on the following decisions:
[a] S.N. Narula vs. Union of India (2011 (4) SCC 591)
[b] M/s. Minerva Stores v. RPFC & Others (1978 LAB.I.C. 1160)
[c] Bajranglal Padia v. State of Orissa & Ors (1975 LIC 830)
[d] Ganesh Das Kaluram v. RPFC, Orissa & Anr (1973 II LLJ 465)
[e] Shiva Agro Industries Pvt.Ltd. v. RPFC (2012 LLR 779)
[f] Hindustan Durree Facatory v. RPFC (1975 LAB I.C. 950)
[g] Delhi Iron & Steel Stockists Association v. RPFC (1977 (1) LLG 217)
[h] Himachal Pradesh State Forest Corpn. v. RPFC ([2008] 5 SCC 756)
[I] Food Corporation of India v. PFC (12991 SCC p. 68 [j] K.C. Mehra v. RPFC & Anr. (1990 (60) F.L.R. 823 We have carefully gone through the ratio laid down and the observations made by the Hon'ble Apex Court and different High Courts in the above referred citations. Considering the peculiar facts of the case on hand as narrated and discussed in para 3.1 hereinabove, in our considered view the above ratio/observations are not applicable to the present case. Hence with a view not to burden the record, we are not discussing each and every citations relied on by the learned counsel for the appellant.
6. In the facts and for the reasons discussed hereinabove, learned Single Judge has rightly rejected the petition. We do not find any illegality or infirmity in the order dated 2.7.2012 passed by learned Single Judge in Special Civil Application No.7516 of 2012 and we find ourselves in agreement with the same. This Appeal is devoid of merits and is dismissed at the admission stage along with Civil Application.
[D. H. WAGHELA, J.]
[G. B. SHAH, J.]
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