IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6178 of 2011 DISTRICT RURAL DEVELOPMENT AGENCY . Versus THE EMPLOYEES PROVIDENT FUND ORGANIZATINO & ORS. ----------- 3/ 17/05/2011 Heard learned counsel for the petitioner and learned counsel for the State. I.A. No.3735/11 is stated to have been filed on 16.5.2011 by the employees of the petitioner. The office shall place the original I.A. on record. There can be no two opinions that they are vitally interested and directly concerned with the issues in question. Having considered the submissions of the parties the I.A. is allowed and they are permitted to be added as respondents. The petitioner is stated to be an organization under the joint control of the Central and State Government. It is aggrieved by the orders dated 13.5.1991 determining that the petitioner was an organization covered under the Employees’ Provident Fund Act ((hereinafter referred to as the E.P.F. Act) allotting code number and fixing liability. It is the case of the petitioner that it was never noticed and therefore had no occasion to place its case before the impugned order came to be passed. The impugned order dated 26.4.2006 recites that despite notice the petitioner failed to appear. The petitioner 2 preferred appeal number as A.T.A. No.57(3)/11 which has been rejected on grounds of limitation on 28.1.2011. Strictly speaking, the rejection of the appeal may have had to be considered in light of a similar order of this Court in C.W.J.C. No.16943/10 placed on behalf of the E.P.F. authorities. But, the Court finds that the writ application is raising far more serious issues with regard to the applicability of the E.P.F. Act to organizations like the petitioner requiring interpretation of more than one statutory provision of the E.P.F. Act. A contested decision laying down the correct law is always preferable to an order passed in default. An order in default does not necessarily reflect the correct legal position as the determining authority does not have the benefit of any counter views or occasion to apply its mind to other statutory provisions except for those that may attract its attention or is drawn by a party alone. Section-16B of the E.P.F. Act provides that a Central and State Government Establishment whose employees are availing contributory provident fund in accordance with a scheme, the Act shall not apply to them. The petitioner contends that it is providing a contributory provident fund scheme to its employees. As 3 the petitioner did not appear before the E.P.F. authorities they had no occasion to consider this factual defence of the petitioner. The impugned order dated 13.5.1991 in no uncertain terms states that it was being issued in exercise of powers under Section-1(4) of the E.P.F. Act pending notification by the Government of India in the official gazette. It is not in dispute from the counter affidavit of the E.P.F. Authorities that till date there has been no gazette publication. Learned counsel for the petitioner has contended that if the notification was conditional and the condition never came to be fulfilled, any determination based on such a conditional notification becomes void. Learned counsel for the E.P.F. submitted that Section-1(4) of the E.P.F. Act applies to an establishment which voluntarily agrees to be considered. This is distinct from the power of the E.P.F. authorities under Section-1(3)(b). A question arises that if an order has been passed under a particular provision of a Statute reciting the conditions of that statutory provision and making the order conditional in nature in pursuance thereof, if the condition is not fulfilled, is it open to the E.P.F. Authorities to seek shelter under any statutory provision. The Court has already noticed hereinabove that questions of fact are first required to 4 be established before any adjudication in law can be done. To reject this application only on grounds of an appeal preferred beyond time for which there is no provision for condonation shall leave a nebulous state of affairs creating more confusion by orders of this Court. The impugned orders dated 13.5.1991 and 26.4.2006 and 28.1.2011 are set aside. The issues raised are going to the very root of the question of jurisdiction. Let the E.P.F. Authorities adjudicate the matter afresh and pass a reasoned and speaking order considering all questions of fact and law that may be raised before them within a maximum period of four months from the date of receipt/production of a copy of this order. Needless to state that any deposits made or deductions effected against the petitioner shall abide by such fresh decision. The application stands allowed. KC ( Navin Sinha, J.)