1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.10322 of 2011 and M.P.(MD)No.1 of 2011 National Pulses Research Centre, Rep by its Professor and Head, Tamil Nadu Agricultural University, Vamban Colony 622 303, Pudukkottai District. : Petitioner Vs. 1.The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Shree Complex, 'D' Block, 18, Madurai Road, Trichy 620 008. 2.The Assistant Provident Fund Commissioner, Office of the Regional Provident Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Shree Complex, 'D' Block, 18, Madurai Road, Trichy 620 008. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari to call for the records from the file of the second respondent herein relating to the notice No.PDC/TN/TRY/Circle:12/TN/32348/2011, dated 16.06.2011/20.06.2011 (levy of damages) and order No.PDC/TN/TRY/Circle:12/TN/32348/2011, dated 16/20.06.2011 (Levy of interest) and to quash the same. For Petitioner : Mr.A.Thirumurthy O R D E R Impugned proceeding is a show cause notice dated 16.06.2011/20.06.2011 issued by the Regional Provident Fund Commissioner, Trichy, directing the petitioner or his representative to submit his written representation as to why recovery should not be made for belated payment of employment provident fund contribution, to the tune of Rs.2,38,930/-. 2. Material on record discloses that earlier when damages were sought to be collected, this Court had intervened and passed appropriate orders, setting aside the proceedings. 3. On this day, when the matter came up for hearing, Mr.A.Thirumurthy, learned counsel for the petitioner submitted that at the request of the petitioner, time for submission of explanation has been extended upto 29.09.2011. His submission is placed on record. https://hcservices.ecourts.gov.in/hcservices/ 2 4. Courts have consistently held that the Writ Petition, challenging a show cause notice, is not maintainable under Article 226 of the Constitution of India, unless it lacks jurisdiction, which admittedly, is not the case of the petitioner. Useful reference can be made to the following decisions of the Supreme Court: (i) In State of U.P. v. Brahm Datt Sharma, reported in (1987) 2 SCC 179, the Supreme Court at paragraph No.9 has held as follows: "9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. ‘The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice." (ii) In Special Director v. Mohd. Ghulam Ghouse, reported in (2004) 3 SCC 440, the Supreme Court has held as follows: "5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted." 5. Further, perusal of the impugned notice also does not disclose reference to the earlier orders passed by this Court, in which, the Regional Provident Fund Commissioner, Employees' Provident Fund https://hcservices.ecourts.gov.in/hcservices/ 3 Organization, Vellore is a party-respondent. As the petitioner has sufficient time upto 29.09.2011, to submit his explanation, it is open to the petitioner to bring it to the notice of the respondents, the orders passed by this Court in various Writ Petitions as well as the order made in W.A.No.639 of 2005, dated 06.09.2007 and submit his explanation. The Regional Provident Fund Commissioner, Trichy shall consider the explanation in proper perspective, in the light of the orders passed by this Court and take appropriate decision as regards the further course of action should be taken. 6. With the above directions, the Writ Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar To 1.The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Shree Complex, 'D' Block, 18, Madurai Road, Trichy 620 008. 2.The Assistant Provident Fund Commissioner, Office of the Regional Provident Commissioner, Employees Provident Fund Organization, Sub-Regional Office, Shree Complex, 'D' Block, 18, Madurai Road, Trichy 620 008. +1CC TO MR.A.THIRUMURTHY, ADVOCATE SR.30855 Sml SR : 13.09.2011 : 3p/3c : IT ORDER MADE IN W.P.(MD).No.10322 of 2011 12.09.2011 https://hcservices.ecourts.gov.in/hcservices/