1 wp-l-2377-2378-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION (L) NO. 2377 OF 2010 WITH WRIT PETITON (L) NO. 2378 OF 2010. Cable Corporation of India Limited. ..Petitioner. v/s. Union of India & Anr. ..Respondents. .... Mr. Haresh Jagtiani, Senior Counsel, a/w. Mr. Mohan Bir Singh, i/b. MBS & Co., for Petitioner. Ms. S.V. Bharucha, for Respondents. .... CORAM : S.J. KATHAWALLA, J. DATE : 18TH OCTOBER 2010. P.C. Admit. 2. Ms. S.V. Bharucha, learned Advocate for the Respondents waives service. 3. By consent, Writ Petition is made returnable forthwith and taken up for final hearing. 4. By this Writ Petition, the Petitioner Company has impugned the order dated 25th September 2010 passed by the Employee’s Provident Fund Appellate Tribunal (Ministry of Labour and Employment), dismissing the Appeal filed by the Petitioner without hearing the Petitioner, and the subsequent two recovery notices both dated 13th October 2010 (Exhibits ‘O’ and ‘P’ to the 2 wp-l-2377-2378-10 Petition). 5. The facts in the matter are as under :- 6. On 22nd September 2003, the Petitioner Company received a show cause notice from Respondent No.2 alleging inter- alia therein that the Petitioner had delayed the deposit of the provident fund dues commencing from the period March 2000. On 28th October 2003, the Petitioner received another show cause notice in respect of the alleged delays as aforesaid and was required to show cause why damages under section 14B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (the said Act), should not be levied on the Petitioner. On 10th December 2003, Respondent No.2 passed an order levying damages under section 14B and interest under section 7-Q of the said Act. 7. In December 2003, the Petitioner filed two Writ Petitions in this Court challenging the orders passed by Respondent No.2 levying damages and interest as aforesaid. This Court by its order dated 2nd August 2006 disposed of both the Writ Petitions filed by the Petitioner by a common judgment and order inter-alia directing the Petitioner to deposit the amount assessed as interest under section 7-Q and further to deposit an amount of Rs.10,00,000/- towards the claim of damages under section 14B of the said Act and based on the said deposit, which was without prejudice to the rights and 3 wp-l-2377-2378-10 contentions of the parties, quashed and set aside the orders passed by Respondent No.2 and remanded the matter back to Respondent No.2 for fresh determination in accordance with law. 8. After having made the deposit in terms of the aforesaid judgment, the Petitioner on 15th December 2006 made a representation to Respondent No.2 inter-alia contending that no damages should be levied under section 14B and also challenging the computation of interest under section 7-Q by Respondent No.2. 9. Fresh show cause notices dated 27th April 2007 and 13th June 2007 were issued by Respondent No.2 for determination of the interest under section 7-Q and damages under section 14-B. On 9th March 2009, the Petitioner received (by hand delivery) the order dated 6th October 2008 by which Respondent No.2 had levied interest under section 7-Q and damages under section 14B of the said Act. 10. Aggrieved by the said order dated 6th October 2008 received by the Petitioner on 9th March 2009, the Petitioner filed the Appeal before the Provident Fund Appellate Authority, New Delhi, under section 7-1 of the said Act and also filed an application for waiver of the amount of deposit under section 7-O and an application for stay of the order dated 6th October 2008. By its order dated 25th March 2009, the Tribunal admitted the Appeal filed by the 4 wp-l-2377-2378-10 Petitioner and granted stay of the order dated 6th October 2008 and adjourned the matter to 16th July 2009 for filing of the reply by Respondent No.2. On 3rd August 2008, the matter was adjourned to 6th December 2010 at Delhi. 11. On 21st September 2010, the Petitioner received an undated communication that the hearing of the Appeal which was fixed on 6th December 2010 at Delhi, had been preponed to 24th September 2010 at 10.30 a.m. and that the said hearing would be held at the Camp Office of the Tribunal at Mumbai. On 24th September 2010, the Petitioner deputed its Officer to make an application for adjournment as it was not possible for its Advocate to reschedule his commitments for 24th September 2010 on such a short notice and to be present at Mumbai on the said date. The Petitioner requested that either the hearing not be preponed to 24th September 2010 and the original date of 6th December 2010 be retained or in the alternative, the Tribunal may fix any other date convenient to itself with an advance notice of about two weeks to the Petitioner. The said application was presented to the Tribunal on 24th September 2010. However, the Tribunal adjourned the hearing to the very next day i.e. on 25th September 2010 and fixed the hearing at its Camp Office at Pune. As the Petitioner and its Advocate were unable to remain present on 25th September 2010, the Tribunal 5 wp-l-2377-2378-10 passed an ex-parte order at its Camp Office at Pune which order was received by the Petitioner on 5th October 2010. 12. It is submitted on behalf of the Petitioner that the Tribunal had earlier adjourned the hearing of the Appeal filed by the Petitioner to 6th December 2010. However, all of a sudden, the Tribunal preponed the matter by giving two working days’ notice to the Petitioner and on 21st September 2010 informed the Petitioner that the hearing of the Appeal filed by the Petitioner is fixed on 24th September 2010. Though the request for an adjournment was made on behalf of the Petitioner, the Tribunal fixed the matter immediately on the next day at Pune and since the Petitioner was unable to attend the hearing on 25th September 2010 at Pune, the Tribunal proceeded to pass an ex-parte order dismissing the Appeal of the Petitioner. It is submitted that the conduct of the Tribunal is absolutely arbitrary and unreasonable and the order passed by the Tribunal is therefore, perverse. 13. I have considered the submissions advanced on behalf of the Petitioner. The Tribunal had admittedly fixed the Appeal for final hearing on 6th December 2010. It is obvious that since it suited the Tribunal to prepone the matter from 6th December 2010 to 24th September 2010, the Tribunal suddenly gave notice of only two working days to the Petitioner and called upon them to proceed with 6 wp-l-2377-2378-10 their Appeal on 24th September 2010. It was not possible for the Advocates for the Petitioner to reschedule their commitments at such short notice and therefore, the Petitioner correctly requested the Tribunal to either retain the original date of hearing on 6th December 2010 or in the alternative, fix any other date convenient to the Tribunal with an advance notice of about two weeks to the Petitioner. The Tribunal despite this reasonable request made by the Petitioner did not accede to the same and proceeded to fix the hearing of the Appeal immediately on the next day at Pune. Once again in view of the short notice, the Petitioner could not attend the hearing and the Tribunal proceeded to pass an ex-parte order against the petitioner and dismissed their Appeal. The conduct of the Tribunal in preponing the Appeal fixed for hearing on 6th December 2010 to 24th September 2010 by issuing notice to the Petitioner of only two working days, is itself arbitrary and unreasonable. Despite request made on behalf of the Petitioner on 24th September 2010 to either retain the original date of hearing i.e. 6th December 2010 or fix any other date convenient to the Tribunal with an advance notice of two weeks to the Petitioner, the Tribunal further acted arbitrarily and unreasonably by fixing the Appeal immediately on the next day at Pune and proceeded to pass an ex-parte order in the absence of the Petitioner and/or their Advocates. The Tribunals and Courts are 7 wp-l-2377-2378-10 established for dispensation of justice. The Members of the Tribunal should not only look to their convenience and totally disregard the convenience of the parties who have initiated proceedings before them. The conduct of the Tribunal in preponing the Appeal which was fixed on 6th December 2010 to 24th September 2010 by giving only two working days notice to the Petitioner, is arbitrary and unreasonable and thereafter, not acceding to their requests for an adjournment but fixing the hearing of the said Appeal on the very next day at Pune, thereby virtually denying the Petitioner its statutory right of being heard in the Appeal, further portrays the unreasonable and arbitrary conduct of the Tribunal in dealing with the matters before it, which conduct needs to be deprecated. 14. Under the circumstances, the ex-parte order passed by the Tribunal dated 25th September 2010 and the subsequent Recovery Notices both dated 13th October 2010 are hereby quashed and set aside and the Tribunal is directed to hear the Appeal filed by the Petitioner as earlier fixed on 6th December 2010. 15. Rule is accordingly, made absolute and the Writ Petition is accordingly, disposed of. [ S.J. KATHAWALLA, J. ]