IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.15719 of 2010 Date of Decision:31.10.2011 Haryana Financial Corporation Ltd. .... Petitioner Versus Employees' Provident Fund Organisation & others ... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Amit Rawal, Advocate for the petitioner. Mr. Sanjay Tangri, Advocate for respondents No.1&2. Mr. N.P. Mittal, Advocate for respondent No.3. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J. (Oral) The petitioner-corporation herein has filed the present petition under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the order dated 16.8.2010 (P-14) passed by respondent No.1. A perusal of P-14 shows that the said order has been passed by respondent No.1 under Section 7-A of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952. Written statements have been filed on behalf of the respondents. As per the written statements filed, order P-14 passed by respondent No.1 under Section 7-A of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 is an appealable order and an appeal is maintainable before the Tribunal under Section 7-I of the Employees Provident Funds and Miscellaneous Provisions Act, CWP No.15719 of 2010 -2- 1952. Section 7-I of the said Act reads as under: “7-I. Appeals to Tribunal.-(1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub section (4) of section 1, or section 3, or sub-section (1) of section 7-A, or section 7B (except an order rejecting an application for review referred to in sub-section (5) thereof), or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order. (2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.” Meeting with the preliminary objections, learned counsel for the petitioner submitted that the Haryana Financial Corporation adopted the Punjab Financial Corporation Employees Provident Fund Regulations, 1951 since its inception i.e. 1.4.1967. The employer is, therefore, governed by these rules. As per the regulation 14-B where an employee had been dismissed on account of misconduct or gross negligence, the employers' provident fund contribution towards provident fund would be deducted. Moreover, the petitioner- corporation in the year 2005 voluntarily opted Employees Provident Fund Scheme and Miscellaneous Provisions Act, 1952 w.e.f 1.3.2005 and transferred the entire provident fund of the existing employees on the said date including the employers' share to the Regional Provident Fund Commissioner, Chandigarh. The employee who admittedly stood dismissed on 1.2.2000 could not have invoked CWP No.15719 of 2010 -3- the provisions of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 after 9 years with retrospective effect. As such, the very order (P-14) passed by respondent No.1 is without jurisdiction. The order being without jurisdiction, the alternative remedy available under Section 7-I of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 will not operate as a bar to the exercise of a writ court's jurisdiction. Reliance has been placed on the judgment of Hon'ble the Supreme Court rendered in the case of M.P. State Agro Industries Development Corpn. Ltd. and another v. Jahan Khan (2007) 10 SCC 88. Learned counsel appearing on behalf of respondent No.3, however, disputed the said fact and submitted that the Punjab Financial Corporation including the respondent-corporation was exempted vide notification dated 8.5.1968 (P-1) issued by the Haryana Government, which was implemented with effect from 1.4.1967 and since the establishment was exempted under the PF Act , the PF Act becomes applicable. It is the regularity authority and an exempted establishment is bound by the provisions of PF Act, 1952. Moreover, even as per Annexure P-3, the application of the petitioner for exemption under the Act was for extension of the exemption which means that the said exemption stood already granted with effect from 1.4.1967. The same is further clear from Annexure P-5. The operative part of Annexure P-5 reads as under: “The Haryana Financial Corporation Mutatis Mutandis adopted the Punjab Financial Corporation Employees Provident Fund Regulation, 1951, since inception i.e. CWP No.15719 of 2010 -4- 1.4.1967 and these rules remained in force till February 2005 as the Haryana Financial Corporation took the voluntary membership of your organization w.e.f. 1.3.2005 and all the Provident Fund of the existing employees were remitted to you and since Sh. Des Raj Sharma, Ex. Sr. Manager was dismissed on 26.6.2002 his P.F. Dues were settled accordingly as per the orders of the authorities.” In view of the above, the question as to whether respondent No.1 had the jurisdiction or not is a disputed question. There is no dispute with the settled proposition of law as laid down by Hon'ble the Supreme Court in the case of M.P. State Agro Industries Development Corpn. Ltd. (Supra) that alternative remedy does not operate as a bar to the right of the petitioner to seek the exercise of a writ court's jurisdiction of judicial review in certain cases. The guidelines have been laid down in para 12 of the said judgment. Para 12 reads as under: “Before parting with the case, we may deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of CWP No.15719 of 2010 -5- writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In theses circumstances, an alternative remedy does not operate as a bar.” The question of jurisdiction being disputed, the facts in the present case do not fall under any of the above categories. The question of jurisdiction can always be raised before the Tribunal, who is competent to decide the same. Thus, it is not a case where this Court deems it proper to exercise its discretionary jurisdiction of judicial review and entertain the petition in the face of availability of a statutory appeal under the rules. In view of the above, the present petition is disposed of with liberty to the petitioner-corporation to avail alternative remedy by way of filing of statutory appeal before the Tribunal provided under Section 7-I of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. In case the said appeal is filed within three weeks from today, the respondents shall not raise the ground of limitation. 31.10.2011 ( NIRMALJIT KAUR ) rajeev JUDGE