IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12356 of 2005 APPOLO BURN HOSPITAL THROUGH ITS MANAGING DIRECTOR, DR. KAMOD NARAYAN TIWARI, S/O LATE BALESHWAR TIWARI, R/O 2C NEW PATLIPUTRA COLONY, PATNA, P.O.-PATLIPUTRA, P.S.- PATLIPUTRA, DISTRICT- PATNA TOWN, PATNA. ................................. PETITIONER Versus REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYA NIDHI BHAWAN, R- BLOCK, PATNA, BIHAR .................................. RESPONDENT ----------- 2 20/4/2009 Heard counsel for the petitioner and counsel for the Regional Provident Fund Commissioner. In this writ application the petitioner has made a prayer to the following effect:- “That this petition is being filed and moved to seek the direction of this Hon’ble Court, in the matter pertaining to the remand or reconsideration of an “Ex parte order” passed U/s 7A, of the Employees Provident Fund & Miscellaneous Provision Act 1952 by the Learned Assistant Provident Fund Commissioner, (to be referred hereafter as APFC) Patna.” In support of the aforementioned prayer it is submitted at the bar that the authorities concerned had never given petitioner a notice before passing the impugned order. Counsel, however, when asked to substantiate this aspect, would refer to the statement made in paragraph 6 to the writ application to contend that from such statement it can be very well inferred that no notice was not given to the petitioner. Counsel further submits that in any event the proceeding was vitiated because the Assessing Officer was not competent or authorized by law to pass order unless a presenting 2 officer was appointed. In this context he would refer the impugned order for establishing that the Assessing Officer had never appointed a presenting officer. The counsel finally submits that the petitioner has already deposited the full amount and therefore if the matter is remitted there would be no prejudice to any one including the Respondents. In the opinion of this Court all the aforesaid three points urged by the counsel for the petitioner must be rejected. First of all it is not correct to say the entire amount has been deposited by the petitioner. This matter has been explained in paragraph 14 of the counter affidavit which reads as follows:- “14.That in reply to para 7 of the writ application it is humbly submitted that deposit of Rs.25,000/- against outstanding dues of Rs.1,08,005/- is no ground for filing review as claimed by the petitioner.” There is no denial to this aspect and therefore it must be held that deposit Rs. 25000/- only as against the demand of Rs. 1,08,005/- can not be held to deposit of full amount by the petitioner and hence the prayer of remand in fact is a concocted effort to the petitioner to withhold the amount of demand. Coming to the next point that he was given no notice as asserted in paragraph 6 of the writ application should be accepted, again has been dealt in the counter affidavit in paragraph nos. 10 and 13 which reads as follows:- “10.That in reply to para 4 and 5 of the writ application it is humbly submitted here that the same is baseless and hence denied. 3 It is further submitted here that vide summon no. 4012 dated 1.8.03 summons with regard to represent his case on 19.8.03 was issued to the petitioner. But none of the petitioner’s representative turn-up on 19.8.03. To provide proper opportunity matter was also fixed on 2.09.03, 19.09.03, 16.10.03 and lastly on 4.11.03. On 19.9.03 petitioner himself appeared and on 16.10.03 one Devendra Kumar staff of the establishment appeared, on both the date except time petition no other relevant documents, as required was produced by them. 13.That the statement made in paragraph 6 is incorrect because on 19.9.03 and 16.10.03 petitioner and one Devendra Kumar have appeared before the 7A proceedings respectively. In the notice u/s 32 of the C.P.C. also it was stated that in case of non appearance an ex-parte order will be passed for determination of the dues amount on the basis of material available on records.” This part of the averment made in the counter affidavit has also not been controverted and therefore the plea of no notice to the petitioner must be and is hereby rejected. Coming to the last issue that the proceeding was vitiated on account of the flow in not appointing the Presenting Officer it must be observed that there is no pleading to this effect in the entire writ petition nor any provision of law has been referred to in this regard by the counsel for the petitioner. Thus this plea is also fit to be rejected. Added to all there the petitioner himself accepts in the writ application that the remedy for him against the impugned order was to move the tribunal, but then why he has not approached the tribunal has also been revealed from paragraph 8 of the writ application itself, which reads as follows:- “8.That the petitioner could have had the petition filed before the Employees Provident Fund Tribunal, at New Delhi but as the 4 limitation of sixty days had lapsed by an exhaustive period, the petitioner is afraid of the delay that may not be condoned without having been directed to allow such condonation. It may be worth mentioning here that the petitioner, at this stage, does not challenge the order so passed by the Learned A.P.F.C. rather he only wishes to satisfy himself with the veracity and the correctness of the order vis-à-vis the document retained by him, so that even if the petitioner has erred in filing returns and deposits he rectifies himself in filing such returns in future. However on contrary to the above said situation, after being heard, if the petitioner realizes the order so passed as irrational, the petitioner may have an well explained base to raise suitable arguments before the appropriate Forum like the E.P.F. Tribunal.” In view of the aforesaid pleadings of the petitioner, this Court must hold that this writ application is not only misconceived but also frivolous. The petitioner in the garb of filing this writ application has successfully evaded payment of his liability under the Act and has sought to obtain a relief by way of remand as if pressing of remand order by this Court under Article 226 of Constitution is a matter of course. Added to it when it is found that the petitioner had tried to mislead this Court by taking a false either on the ground of full deposit of amount or service of notice in this writ petition, it must be held the petitioner has not approached this Court with clean hands. That being so, while this Court would dismiss this writ application, it would also impose a cost of Rs.2,500/- to be paid by the petitioner to the Respondent no. 1 within three months from the date of this order failing which the same will also be realized by the Respondent no. 1 by taking coercive measures along with 5 the balance payable amount of Rs. 83,005/- as per paragraph 14 of the counter affidavit. . Abhay Kumar (Mihir Kumar Jha, J.)