SCA/21321/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21321 of 2007 With SPECIAL CIVIL APPLICATION No. 21322 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= SALIM MOHAMMAD DUDHWALA - Petitioner(s) Versus ASSISTANT PROVIDENT FUND COMMISSIONER & 1 - Respondent(s) ========================================================= Appearance : MR MM SAIYED for Petitioner(s) : 1, MR SUTHAR FOR MR NK MAJMUDAR for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 29/08/2008 COMMON ORAL JUDGMENT Rule. Mr. Suthar, learned advocate, appears for Mr. N.K.Majmudar, learned advocate for the respondents, and waives service of notice of rule on behalf of the respondents. SCA/21321/2007 2/8 JUDGMENT The petitioner herein has approached this court against the orders dated 25.5.2006 and 25.9.2006 passed by the respondent – Provident Fund Commissioner. The subject orders are challenged on diverse grounds. It is also claimed that the impugned order dated 25.5.2006 is passed without any evidence on record to support the findings or the ultimate directions in the impugned order. It is also claimed that after the impugned order, an application for review under section 7-B was made, however, that application also came to be rejected without sufficient and proper opportunity of hearing. On such grounds, the petitioner has approached this court against the aforesaid orders. On perusal of the record of the petitions, it appears that after hearing the petitioner, the court had issued notice and subsequently, after hearing the submissions, order requiring the petitioner to deposit 70% of the decreed amount was passed. It is given out by the petitioner's advocate that the amount as per the direction of the court has been SCA/21321/2007 3/8 JUDGMENT deposited. The said assertion of the petitioner is not disputed by the advocate of the respondent. Thus, 70% of the amount involved in the orders impugned in the petitions is deposited in this court. It appears that the said direction was passed by taking into account the respondents' submission that the petitioner has approached this court without approaching the appellate authority where the petitioner would be required to deposit, as a condition precedent for preferring appeal, 75% of the decreed amount. Heard Mr. Saiyed for the petitioner and Mr. Suthar for the respondents. Mr. Suthar has opposed the petitions on the ground that as per the provisions contained in the Employees Provident Fund Act & Misc. Provision Act, 1952 any one aggrieved by any order passed under section 7-A is required to approach Employees Provident Fund Tribunal constituted under the Act and that therefore, this petition, which is filed without approaching the appellate authority, ought not be SCA/21321/2007 4/8 JUDGMENT entertained. Mr. Suthar also submitted that despite several adjournments, the petitioner did not produce the relevant details and therefore, on the basis of the report of the Officer, the subject order came to be passed. In submission of Mr. Suthar, the said order is, justified and does not deserve to be set aside as prayed for. As regards, the order passed in application under section 7-B, Mr. Suthar submitted that in view of the provisions and in light of the order passed under section 7-A, the said application was not maintainable and therefore, the Commissioner was right in disallowing the said application. It is not in dispute that the application under section 7-B was preferred within prescribed time limit. The said application, as claimed by the petitioner, has been rejected without opportunity of hearing. So far as the submissions of Mr. Suthar for respondents that the petitioner is required to approach the appellate tribunal against the impugned order is concerned, this court is inclined to accept the said contention. When there is a statutory alternative remedy provided under the Act, then, the SCA/21321/2007 5/8 JUDGMENT parties aggrieved by any order passed by the original / adjudicating authority is required to and should first approach the appellate authority instead of preferring writ petition. In this regard, Mr. Saiyed for the petitioner submitted that the petitioner had made certain applications under Right to Information Act in 2000 after the order in application under section 7-B came to be passed and that consumed sometime and after the details were provided, the petitioner filed present petition in August, 2007 and that therefore, if the petitioner had approached the tribunal at the time when the petitioner filed petitions, the same would not have been entertained on the ground of limitation because the PF Appellate tribunal has taken a view that it does not have jurisdiction to condone the delay of more than 60 days after the prescribed time limit for filing the appeal and that therefore, the petitioner was left with no alternative but to approach this court against the impugned orders since the same are arbitrary, without application of mind and unsustainable, or else their justified grievance SCA/21321/2007 6/8 JUDGMENT would be defeated without receiving rightful hearing. Considering the fact that if these petitions are not entertained on the ground of availability of the statutory remedy then, the petitioner will have to be relegated to the appellate tribunal, however, there also, the petitioner is going to face difficulty on the ground of limitation and the tribunal may not entertain the appeal on the ground of limitation. Under the circumstances, the petitioner would be non- suited. Of course, a person, who is totally negligent and has slept over his right does not deserve any leniency. However, in this case, the petitioner has pursued another / wrong remedy, though improper and unnecessary, however, he claims that it happened due to improper advise. It is also submitted that the petitioner is not running establishment having its own staff and set up of employees and it is the case of the petitioner that actually the amount which was originally claimed as due from him, has been paid by him and that therefore, if without opportunity of hearing and defence, he is required to make the payment as per the impugned orders, then, he would be SCA/21321/2007 7/8 JUDGMENT required to make payment once over again. The grievance of the petitioner, therefore, requires and deserves consideration or a second look at this case appears to be a case full with unfortunate facts. Under the circumstances, on overall consideration of the matter, more particularly, in light of the fact that the petitioner asserts that the amount, which the petitioner would have otherwise required to pay, had already been paid over and above such payment, the petitioner has already deposited 70% of the amount in the court and is ready to make the payment of remaining 5% of the amount so as to fully comply with the condition of pre deposit of 75%, this court is of the view that it would be in the interest of justice and fitness of things that the petitioner is afforded opportunity of defence before the appellate tribunal to challenge the order on merits and that therefore, it is directed that if the petitioner files necessary appeal against the order impugned in present petitions on or before 19th September, 2008, then, the tribunal should decide the same on merits instead of rejecting the same on the SCA/21321/2007 8/8 JUDGMENT ground of limitation / delay. The petitioner shall deposit the remaining 5% of the amount on or before the date on which he files the appeal before the tribunal and shall attach necessary evidences / receipt the deposit of total 75% of the amount along with appeal memo. With the aforesaid clarification and direction, petitions are partly allowed. Rule made absolute to the aforesaid extent. Direct Service is permitted. [K.M.Thaker, J.] kdc