1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.10.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.7056 of 2011 & M.P.(MD).Nos.1 & 2 of 2011 M.D.Spl.58, M.Kallupatti Primary Agricultural Co-operative Society Ltd., Represented through its Secretary, Mathiapannur Post, Pudupatti Via, Thirumangalam Taluk, Madurai District. ..Petitioner Vs. The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Regional Office, Lady Doak College Road, Chokkikulam, Madurai-625 002. .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the respondent in TN/MDU/29115./Enf./Circle 17/17055/2010, dated 14.12.2010 and consequent order passed in Review Petition in M-7/TN/29115/Enf.C/RO/201, dated 11.05.2011 and quash the same and consequently direct the respondent to hear in the review petition, dated 03.05.2011 filed by the petitioner under Section 7 B of the EPF Act on merits and in accordance with law. For Petitioner :Mr.V.O.S.Kalaiselvam For Respondent :Mr.G.R.Swaminathan ORDER The petitioner has come forward to challenge the order passed under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred as the Act) demanding payment from the petitioner for the period from 11/99 to 05/2010 total amount to Rs.2,53,345/- as due and payable to the department. The petitioner filed a review application under Section 7-B of the Act before the same authority. Since the review was filed belatedly, the authority refused to entertain the review as he has no power in terms of Section 7(B) read with paragraph 79-A of the EPF Scheme. Instead of filing an appeal under Section 7-I of the Act before the Tribunal, the petitioner has moved this Court with the present writ petition. 2. Notice regarding admission was ordered on 30.06.2011. Pending notice, this Court granted interim stay. On notice from this Court, Mr.G.R.Swaminathan, entered appearance for the respondent. 3. When an Act provides for appeal remedy, the aggrieved party has to exercise the power under the Act and the writ jurisdiction cannot be used to forestall the appeal remedy provided under the Act. It is necessary to refer to the Judgment of the Honourable Supreme Court in RAJ KUMAR SHIVHARE v. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT AND https://hcservices.ecourts.gov.in/hcservices/ 2 ANOTHER reported in 2010 4 SCC 772, wherein it was held that even though the appellate remedy provides for a conditional pre deposit that by itself cannot be a ground to reject that forum and one can move the high Court under Article 226 of the constitution of India. In paragraphs 30 to 32 of the said judgment it has been held as follows; "30. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L.Chandra Kumar v. Union of India. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre- deposit of penalty by the Appellate Tribunal. 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 4. Therefore, the writ petition is misconceived and accordingly, the writ petition stands dismissed. Consequently, the connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar(CS) To The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Regional Office,Lady Doak College Road, Chokkikulam, Madurai-625 002. jikr : GH : 03.11.2011 : 2p/2c Order made in W.P.(MD)No.7056 of 2011 & M.P.(MD).Nos.1 & 2 of 2011 14.10.2011 https://hcservices.ecourts.gov.in/hcservices/