1 wp 4519.11 4520.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4519 of 2011 WITH WRIT PETITION NO.4520 OF 2011 Nocil Limited (Erstwhile National Organic Chemical Industries Ltd.) .. Petitioner. V/s. The Regional Provident Fund Commissioner- II & Another .. Respondents. Mr. K. M. Naik along with Mr. Sujeet P. Salkar, for the Petitioner in both the matter. Mr. Deepak Rai i/b. Mr. Suresh Kumar, for Respondents in both the matters. CORAM : K.K.TATED, J. DATE : 10th AUGUST, 2011. P.C.: 1 Heard the learned counsel for the Parties. 2 Rule. Rule made returnable forthwith. 2 wp 4519.11 4520.11.sxw 3 By consent, matters are taken on board for final hearing at the stage of admission itself. 4 By these Petitions, under Articles 226 & 227 of the Constitution of India, the Petitioner-Original Appellant challenges the order dated 21st February, 2011 passed by the Appellate Authority in Appeal (ATA) No.672/9/2007, ( Writ Petition No. 4519 of 2011) and Appeal (ATA) No. 673/9/2007 ( Writ Petition No. 4520 of 2011) dismissing their Appeal against order under Section 14-B of Employees’ Provident Fund Act. In the present case, the authority passed order under Section 14-B of the said Act, dated 25th July , 2007 holding that Petitioners are liable to pay Penal Damages along with interest to the tune of Rs.97,29,728/- in respect of establishment bearing Code No. MH/9437 and Rs.8,01,021 in respect of Code No. MH/7780. The said order was challenged by the Petitioners before the Appellate Authority. The hearing of the said Appeal was posted on 21st February, 2011. At that time, the Petitioners filed application dated 21st February, 2011 for adjournment, on the ground that the Petitioners are having office at Bombay, the papers and concerned records were lying at Bombay, their Advocate was at New Delhi, and as notice of hearing of the Appeal 3 wp 4519.11 4520.11.sxw received recently, the Petitioners could not arrange for bringing the entire record of the case for giving proper instructions to the advocate at Aurangabad. On this ground, the Petitioner requested for postponement of the hearing of Appeal. Thereafter, the Petitioner received a notice dated 22nd February, 2011 on 8th March, 2011 from the Employees' Provident Fund Appellate Tribunal, New Delhi, stating that the Appeals are kept for hearing on 15th April, 2011 at 10.30 a.m. before the Hon'ble Presiding Officer/ Registrar. Before 15th April, 2011, the Petitioners received the impugned order dated 21st February, 2011. The said order is challenged by the Petitioners in these Petitions. The learned counsel appearing for the Petitioner submits that the impugned order dated 21st February, 2011 was passed by the Appellate Authority without hearing them. He submits that on 21st February, 2011, they specifically made application for adjournment. Thereafter, they received a notice from the office of Employees’ Provident Fund Appellate Tribunal in ATA No. 672/9/2007 and 673/9/2007 dated 22nd February, 2011, stating that the hearing of the Appeal was kept on 15th April, 2011 at 10.30 a.m. and suddenly before that day, they received the impugned order dated 21st February, 2011. In the order, the Appellate Authority recorded that no one appeared on behalf of the Petitioners and, therefore, the Appellate Authority decided their Appeal as per Rule 15 of 4 wp 4519.11 4520.11.sxw Employees' Provident Fund Appellate Tribunal, Rules 1997. The learned counsel appearing for the Petitioners submits that the impugned order passed by the Appellate Authority is against justice, equity and good conscience and the same is liable to be set aside, as the Appellate Authority without hearing them passed the order ex-parte on 21st February 2011, when the matter was adjourned on the application of the Petitioners. He further submits that after filing present Petitions in this Court, they immediately intimated the Regional Provident Fund Commissioner- II by their letter dated 13th June, 2011 that matters were kept for hearing on 21st June, 2011 at 11.00 a.m. In spite of that, the Respondent- authority in both the matters recovered total sum of Rs. 1,08,18,546/- from their HDFC Bank on 13th June, 2011. The learned counsel appearing for the Petitioner states that initially Assistant Provident Fund Commissioner and Recovery Officer, SRO by its order dated 8th June, 2011 informed the Manager, HDFC Bank to remit the said amount to them. The letter forwarded to the Enforcement Officer in which it was specifically stated that he has to comply with the said order on or before 20th June, 2011. Suddenly, after the receipt of the notice from the Petitioner's Advocate dated 13th June, 2011, the Assistant Provident Fund Commissioner amended order dated 8th June, 2011 addressed to the Manager, HDFC Bank Ltd., and copy marked to 5 wp 4519.11 4520.11.sxw Enforcement Officer, directing to comply with the said order on or before 13th June, 2011. On the above mentioned submissions and facts, the learned counsel appearing for the Petitioners submits that the impugned order passed by the Appellate Authority in ATA No. 672/9/2007 and 673/9/2007 dated 21st February, 2011 is liable to be set aside and the Respondent authority be directed to refund amount recovered by them from the Petitioner Bank, pursuant to the order/letter dated 8th June, 2011, issued by the Assistant Provident Fund Commissioner and Recovery Officer, SRO. 5 The learned counsel appearing for the Respondent vehemently opposed the present Petition. They filed their affidavit in reply dated 2nd August, 2011, affirmed by one Mr. Pawan Kumar Thakur, Enforcement Officer working in the office of Regional Provident Fund Commissioner, Sub Regional Office, Vashi, New Mumbai. He submits that the Appellate Authority rightly passed the order dated 21st February, 2011, considering Rule 15 of the said Act. He further submits that as the Petitioners failed to deposit their entire amount, as per orders, under section 14-B of the said Act, the authority issued order/letter dated 8th June, 2011 to the Manager, HDFC Bank Ltd., under Section 8F of the said Act. Therefore, there is no question of refunding the said amount to 6 wp 4519.11 4520.11.sxw the Petitioners, even if, the matter is remanded to the Appellate Authority for hearing on its own merits. He further submits that this Court by order dated 19th November, 2007 in Writ Petition No. 7681 of 2007, specifically directed Petitioners that they cannot use the said amount till the hearing and final disposal of the said Appeal. Paragraph 4 of the said order read thus:- “Para-4:- Hence, it is directed that the amount of Rs. 97,29,728/- presently lying in Account No.0011110000930 with the HDFC Bank shall not be utilized by the petitioner- company till the disposal of the interim application filed in the pending appeal and no coercive measures shall be taken by the respondent till the said application is heard and decided on its own merits by the Appellate Tribunal. The said application to be heard expeditiously.” 6 On the basis of these submissions, the learned counsel appearing for the Respondent vehemently opposed the present Petition. 7 On going through the impugned order passed by the Appellate Authority as well as the other correspondence which is placed on record, admittedly, the Petitioner filed their application on 21st February, 2011 before the Appellate Authority for adjournment on the ground that their office record is at Bombay and, therefore, they 7 wp 4519.11 4520.11.sxw required some time. Thereafter, the Petitioner received a notice dated 22nd February, 2011 from the office of Appellate Tribunal, stating that the hearing of the Appeal is kept on 15th April, 2011 at 10.30 a.m. This itself shows that the Appellate Authority allowed their application for adjournment and the matter was placed for hearing on 15th April, 2011. In spite of these facts, the Appellate Authority passed the impugned order on 21st February, 2011, holding that no one appeared on behalf of the Petitioners when the matter was called out and therefore, as per Rule 15 of the said Rules, the Appellate Authority proceeded to decide the matter ex-parte. The order passed by the Appellate Authority is contrary to the principles of natural justice, as the hearing on 21st February 2011 was adjourned on the petitioner’s application for adjournment to 15th April 2011, the Appellant Authority could not pass the impugned order ex parte on 21st February 2011. Therefore, same is liable to be set aside and matter needs to be remanded to the Appellate Authority for deciding on its own merits, after giving opportunity of hearing. 8 When the Petitions were pending before this Court and the Petitioner by their letter dated 13th June, 2011 intimated to the Regional Provident Fund Commissioner that the matters are posted for hearing on 21st June, 2011 at 11.00 a.m., it was the duty of the authority not to 8 wp 4519.11 4520.11.sxw enforce the recovery of the said amount. Not only that, initially, the Assistant Provident Fund Commissioner and Recovery Officer by letter dated 6th June, 2011 directed Enforcement Officer to comply with the said order on/or before 20th June, 2011, but as soon as they received the letter dated 13th June, 2011, the Respondents-authority immediately issued another order/letter of the same date and directed the Recovery Officer to comply with the said order/letter on or before 20th June 2011. It shows the malafides on the part of the Assistant Provident Fund Commissioner and Recovery Officer. Therefore, the amount recovered by the authority from the Petitioner’s Bank account lying in the HDFC bank to the tune of Rs.1,08,18,546/- is liable to be refunded. Hence it is necessary to direct the Respondent-authority to refund the said amount of Rs.1,08,18,546/- to the Petitioners within two weeks from the receipt of copy of this order. On this basis both the Writ Petitions are allowed on the following terms:- (i) The impugned order dated 21st February, 2011 passed by the Appellate Authority in ATA No. 672/9/2007 and ATA No. 673/9/2007 are set aside. (ii) The matters are remanded to the Appellate Authority to decide the ATA No.672/9/2007 and ATA No. 673/9/2007 on its own merits after giving opportunity 9 wp 4519.11 4520.11.sxw of hearing to both the sides. (iii) Respondent No.1- Regional Provident Fund Commissioner-II is directed to refund the amount of Rs.1,08,18,546/- to the Petitioners immediately within two weeks from the receipt of copy of this order. 9 Parties to act on authenticated copy of this order. (K.K.TATED, J.)