IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY THURSDAY, THE NINETEENTH DAY OF MARCH, TWO THOUSAND NINE ONLY WRIT PETITION No.20569 of 2002 Between: Sri Laxmi Venkateswara Ginning Industries, Sarangapur, Adilabad District, reptd., by its Managing Partner-M.Laxman Rao, s/o.Kistanna, 60 yrs, Sarangapur, Adilabad. … Petitioner And Asst.Provident Fund Commissioner, Employees Provident Fund Organisation, Regional Office, APSFC Building, Balasamudram, Hanmakonda, Warangal. … Respondent Counsel for the petitioner: Sri Farhan Azam Khan for Sri S.Niranjan Reddy. Counsel for the respondent: Smt.D.S.Lakshmi for Sri R.N.Reddy. This Court made the following: ORDER:- This Writ Petition is filed for a Writ of Certiorari to quash order dated 21-6-2001and consequential notice dated 9-9-2002 of the respondent. Heard Sri Farhan Azam Khan, counsel representing Sri S.Niranjan Reddy, learned counsel for the petitioner, and Smt.D.S.Lakshmi, counsel representing Sri R.N.Reddy, learned standing counsel for the respondent. The petitioner is a ginning industry. In the course of running the industry it has employed certain workmen and, therefore, it comes within the expression of ‘establishment’ under the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (for short “the Act”). As the petitioner failed to remit the provident fund arrears for the period from 1-12-1990 to 31-7-2000 and file statutory returns, enquiry under Section 7-A of the Act for determination of the dues was initiated and summons dated 12-10-2000 were issued to the petitioner requiring it to attend the enquiry on 31- 10-2000. As no one represented the petitioner on the said date, the enquiry was adjourned to 15-11-2000. While there was no representation for the petitioner even on that date, representation dated 9-11-2000 was received by the respondent from the petitioner, wherein it was mentioned that the establishment was closed long back and it was restarted recently, and that it would remit the dues. Considering the said representation, the enquiry was posted to 29-11-2000 and as no one appeared for the petitioner on that date, the enquiry was further adjourned to 19-12-2000. As the petitioner failed to avail the opportunities, despite receipt of notices for the enquiries fixed for 31-10-2000, 29-11-2000 and 19- 12-2000, the enquiry was closed and exparte determination of the petitioner’s liability was made at Rs.1,44,488-60 ps., and interest at the rate of 12% per annum was levied on the said amount, which came to Rs.48,434/-, by order dated 21-6-2001. Subsequently, the petitioner approached the respondent for reopening of the proceedings, which was accepted by the respondent and enquiry was fixed for 25-9-2001, on which date the petitioner’s representative appeared before the respondent without any records. As the petitioner failed to file proof of closure of the establishment as pleaded by it, further enquiry was closed by refusing the request of the petitioner for further reopening of the case, by order dated 5-3-2002. Consequently, notice dated 9-9-2002 was issued for payment of the aforesaid dues. In this Writ Petition, the petitioner assailed order dated 21-6-2001 and notice dated 9-9-2002. At the hearing, the learned counsel for the petitioner strenuously contended that the impugned order suffers from legal errors, inasmuch as the demand towards the provident fund was made in respect of casual labourers, for whom there is no liability on the part of the petitioner to contribute provident fund. The learned counsel further submitted that the demand is time barred. The learned counsel representing the respondent submitted that after filing of the Writ Petition, the petitioner remitted a sum of Rs.1,82,461/- and a sum of Rs.10,461/- alone remains to be paid. She sought to justify the action of the respondent in recovering the provident fund arrears. As regards the first contention of the learned counsel for the petitioner, though a vague plea, that the petitioner did not engage permanent employees, was raised in paragraph 5 of the affidavit filed in support of the Writ Petition, the petitioner has not filed any material in the Writ Petition to show that it has raised this contention before the respondent in response to the show cause notice. This issue being a question of fact, unless the petitioner has raised it before the respondent and invited a finding thereon, it is not possible for this Court to deal with this contention. Therefore, this plea cannot be accepted. As regards the second contention of the learned counsel for the petitioner that the demand is barred by limitation, the learned counsel concedes that the Act does not contain any provision stipulating the period of limitation. The learned counsel, however, placed reliance on the judgment of the Bombay High Court in K.T.Rolling Mills Pvt. Ltd., Vs. R.M.Gandhi and others – 1994(1) LLJ 66. There is no quarrel with the proposition that even in the absence of the statute stipulating period of limitation, the authority shall initiate action within a reasonable time. What constitutes reasonable time depends upon the facts and circumstances of each case. In the case decided by the Bombay High Court (supra), on which the learned counsel for the petitioner places reliance, the provident fund arrears were demanded after a period of 17 years. In the instant case, the arrears for the period from December, 1990 to October, 2000 were demanded on 12-10-2000. In my considered view, the petitioner, who failed to avail the repeated opportunities afforded by the respondent and allowed an exparte order to be passed, is not entitled to raise this contention in a Writ proceeding, which is purely discretionary in nature. The petitioner ought to have been diligent in raising this contention before the respondent. The fact that the demand made by the respondent pertains to recovery of provident fund payable under a welfare legislation cannot be lost sight of. On the facts and circumstances and circumstances of the present case, more so having regard to the admitted fact that the petitioner has already paid the whole amount, except a meagre sum of Rs.10,461/-, I am not inclined to invalidate the demand on the ground of the same being made after an unreasonably long period. For the above-mentioned reasons, the Writ Petition is dismissed. ------------------------------------ C.V.NAGARJUNA REDDY,J Date:19-3-2009 MNR