C.W.P No.427 of 1999 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.427 of 1999 Date of Decision: 23.07.2009 M/s Gagan Bricks Manufacturers BKO .....Petitioner Versus Union of India and another ...Respondents 2. C.W.P. No.1788 of 1999 M/s Guliani Bricks Supplier, BKO .....Petitioner Versus Union of India and others ...Respondents 3. C.W.P. No.4241 of 1999 M/s Hind Bricks Industry, BKO .....Petitioner Versus Union of India and others ...Respondents Present: Mr. P.C. Dhiman, Advocate for the petitioner. Mr. Kamal Sehgal, Advocate with Mr. Rajesh Hooda, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers 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? -.- K. KANNAN J.(ORAL) 1. The challenge in all the three petitions refer to proceedings for recoveries under the Employees Provident Fund and C.W.P No.427 of 1999 -2- Miscellaneous Act of 1952 for alleged default in making the statutory contributions. The writ petitioners had challenged the applicability of the Act as well as the orders, which according to them came to be passed behind their backs without proper notices and even applications for review of the orders on the ground that notices had not been issued had not been disposed of and hence the matters were required to be remanded to the Competent Authority for fresh consideration. 2. At the time of argument, learned counsel appearing for the petitioners concedes that in view of the decision of the Hon'ble Supreme Court in J.P. Tobacco Products etc. Vs. Union of India and others 1996 I LLJ 822 upholding the amended para 26(2) of the Act requiring an employee to join the Provident Fund Scheme from the first day of his joining duty, he was confining his arguments only to the issue of the validity of the orders passed for recovery. 3. As a threshold argument, learned counsel appearing for the respondent would state that the orders passed determining the monies due from the employers under Section 7-A is appealable and when there was an effective alternative remedy available, the writ petitions were not maintainable. He relies on decision of the Hon'ble Supreme Court in Sumedico Corporation and another Vs. Regional Provident Fund Commissioner, 1999 LIC 2626 that a challenge to notice could not be done before the High Court under Article 226 of the Constitution and the remedy provided under Act by way of an appeal shall be exhausted. 4. The writ petition came to be filed at a time when the C.W.P No.427 of 1999 -3- petitioner was challenging the applicability of the Act to the establishments and therefore, the remedy could have been only before the High Court. The respective petitions also contained prayers for quashing the proceedings for recoveries. While a resort to an effective adjudicatory body that the statute provides for, would be the most efficacious choice, it cannot always be seen as a rule of thumb that even when alternative remedy is available, exercise of power under Article 226 might not be excluded. In a case, where all the petitioners had been complaining that the orders were passed ex parte and notices had not been sent to them, the only defence was that registered notices had not been returned unserved and hence there arose a presumption under the relevant provisions of the General Clauses Act, there must be a presumption of service. The provisions of the General Clauses Act relating to presumption has been subject of a decision by the Hon'ble Supreme Court Punada Venkateswara Rao Vs. Chidamana Venkateswara (1976) 2 SCC 409 where the Hon'ble Supreme Court has held that when a presumption was to be drawn against an addressee and he denies that he received the same, the onus will shift on the person who asserts that the registered notices had been received by the addressee. There is no more than mere assertion in the written statement filed to the writ petitions that several notices had been sent to the employers and they were not replied to. 5. Learned counsel appearing for the petitioners sets out at least four grounds as to why the demand was not justified. One, it sets out a period for recovery when challenge to the Act had been made in several States and there were orders of stay for recoveries and when C.W.P No.427 of 1999 -4- the Government itself had issued circulars not to effect the recoveries during the period. Two, the brick kilns have been closed during most part of the time when the period covered for the recoveries and evidence had to be let in regarding the same. Three, the notices had not been served and orders came to be passed behind their backs. Four, even when review applications were filed, they had not been disposed of admittedly but a decision was given only in the written statement that the review petitions were not maintainable. 6. Having regard to the special circumstances when the amounts claimed by the Provident Fund Commissioner could require to be met by contest as pleaded by the employer, I deem it appropriate that the notices impugned in the writ petition are set aside and the matters remitted to the competent authority under the Act for adjudication on merits after hearing the objections of the employer. The petitioners shall appear before the competent authority on 18.08.2009 at 11 A.M. 7. Writ petitions are disposed in the above terms. (K. KANNAN) JUDGE July 23, 2009 Pankaj*