IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9960 of 2003 KUMAR BINAYA NAND SINHA, son of late Krishna Nand Singh, resident of Krishnagarh, P.O. and P.S. Sultanganj, District- Bhagalpur… Petitioner Versus 1. UNION OF INDIA through Regional Provident Fund Commissioner, R- Block, Road No.6, Patna. 2. Assistant Provident Fund Commissioner, Adampur Chowk, Bhagalpur. 3. Recovery Officer, R- Block Road No.6, Patna. 4. Sri Arun Kumar Lal, son of Sri Krishna Kumar Lal Burnwal, resident of Barh, P.S. Barh, District- Patna……. Respondents ----------- For the petitioner: Mr. Shiva Ji Pandey, Senior Advocate Mr. Nalin Vilochan Tiwary,Advocate For respondent Nos 1 to 3 : Mr. R.S. Pradhan, Senior Advocate Mr. Dheeraj Kumar Roy,Advocate ----- 5. 3.5.2010 The petitioner has filed the writ petition for quashing the notice dated 30.8.2002 issued by the Recovery Officer to deposit an amount of Rs.1,57,417/- and also for quashing the orders dated 26.8.1991, 12.1.1995, 23.5.1996 and 26.11.1999 passed by the Assistant provident Fund Commissioner, Bhagalpur, on the basis of which the notice was issued by the Recovery Officer. The short facts of the case are that the petitioner is the owner of Chitra Talkies situated at Sultanganj in the District of Bhagalpur, which he claims to be joint family ancestral property. The said Cinema Hall was leased out to Sri Krishna Kumar Burnwal and Sri Arun Kumar Burnwal from 1.1.1982 and thereafter the same was extended up to 30.6.1995. The stand of the petitioner is that - 2 - the cinema projector belonged to the mother of the petitioner, Rani Krishnawati, but all the employees were appointed by the said lessee, who used to pay wages and salaries to the employees working during that period. Proceedings were initiated by the Employees Provident Fund Organization in which notices were issued to Arun Kumar Burnwal showing him as the lessee of the Cinema Hall, but he never appeared in the matter and ultimately the orders fixing the liability were passed. Subsequently warrants of arrest were also issued against him. At all stages in the proceedings the said Arun Kumar Burnwal was treated as the lessee liable to comply with the provisions of the Act. At no point of time, the petitioner was issued any notice or informed about the pendency of the proceedings. Lastly, having failed to lay their hands on the said Arun Kumar Burnwal, the Recovery Officer of the Employees Provident Fund Organization issued a notice dated 30.8.2002 directing the petitioner to show cause as to why he should not be committed to the civil prison in execution of the certificate Nos. 830, 1832 and 29 for total dues of Rs. 1,57,417/. Learned counsel for the petitioner submits - 3 - that the aforesaid action of the authorities is in complete violation of the principles of natural justice. At no point of time in the said proceedings the petitioner has been noticed and the authorities of the Provident Fund Organization were at all times aware of the fact that it was the said lessee, Arun Kumar Burnwal, who was running the Cinema Hall and accordingly, they proceeded against him and not against the petitioner. It is submitted that in the said circumstances, no liability could have been thrust upon the petitioner without his having been heard by the authorities on the basis of any show cause notice before passing the order fixing liability. Learned counsel for the Employees Provident Fund Organization was earlier directed to verify from the records of the case and inform this Court as to whether the petitioner had notice or knowledge of the proceedings or not. Today, Mr. R.S. Pradhan, learned Senior Counsel for the Employees Provident Fund Organisation states that from the entire order sheet of the case, he is unable to find out that at any stage, the petitioner was noticed or had appeared before the Provident Fund authorities. - 4 - He, however, submits that the order in question is appealable and in the presence of statutory remedy of appeal, the writ petition filed by the petitioner ought not to be entertained. Learned counsel for the petitioner in response to the said stand submits that non- sending of notice of the proceedings to the petitioner goes to the root of the jurisdiction of the authority and in the said circumstances, the writ petition under Article 226 of the Constitution would be maintainable as has been held in a catena of decisions of the Supreme Court from the very beginning. In support of the same, he relies upon a decision of the Apex Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others: (1998) 8 S.C.C. 1, in paragraph Nos. 15, 20 and 21 of which it has been held as follows: “15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High - 5 - Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirpool, we would rely on some old decisions - 6 - of the evolutionary era of the constitutional law as they still hold the field. 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without - 7 - examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the “Tribunal”.” In view of the aforesaid consistent view of the law, there can be hardly any doubt that the present writ petition is maintainable on the ground that there has been admittedly a violation of the principles of natural justice so far as the petitioner is concerned. That being the position the notice dated 30.8.2002 issued by the Recovery Officer directing the petitioner to deposit the amount and to show cause as stated therein cannot stand and it is quashed. So far as the other orders passed in this case are concerned, this Court does not intend to interfere with the same treating them as having been passed against the said Arun Kumar Burnwal only. It would, however, be open to the authorities to initiate a fresh proceeding against - 8 - the petitioner by issuing proper notice in the matter and decide the same after hearing the parties in accordance with law. The writ application is, accordingly, allowed with the aforesaid observations and directions. VPS ( Ramesh Kumar Datta, J. )