1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.648 OF 2009 Shri Sunil V. Katkar, Proprietor, Valpoi, Sattari-Goa. …. Petitioner V/s 1. The Assistant Providen Fund Commissioner, Bhavishya Nidhi Bhavan, Patto, Panaji, Goa 403 001. 2. The Phil Corporation Limited, House No.41 & 41A, Ward No.9, Mauxi Road, Valpoi, Sattari Goa. …. Respondents Mr. G.K. Sardessai, Advocate for the Petitioner. Mr. J. Vaz, Advocate for Respondent No.1. Mr. D. Pangam, Advocate for Respondent No.2. CORAM : N.A. BRITTO, J. DATE : 13th AUGUST, 2010 JUDGMENT : Heard Shri Sardessai on behalf of the petitioner and Shri Joseph Vaz on behalf of respondent no.1. 2. This Writ Petition is directed against order dated 12/02/2009 of the Employees Provident Fund Appellate Tribunal upholding the assessment order dated 12/12/2001 of the Provident Fund Commissioner, under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (the Act, for short). 2 3. The respondent no.1 has filed an affidavit and in the said affidavit in reply it is, inter alia, stated that the petitioner was issued with the show cause notice on 25/01/2001 and thereafter on 13/02/2001 and on 6/03/2001 and an ample opportunity was given to the petitioner to prove his case, but the petitioner did not avail of the same nor requested for the copy of the report of the Enforcement Officer which the petitioner is now seeking for the first time before this Court, to circumvent the ends of justice. 4. There is no dispute that the petitioner's establishment was covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and was given a Code number Goa/10678. The petitioner’s establishment was inspected by the Enforcement Officer on 26/06/2001 and based on that a show cause notice was issued to the petitioner for payment of dues payable under the Act for the months of November, 1997 to October, 2000. Various opportunities which were given to the petitioner have been recorded by the Provident Funds Commissioner in his order dated 12/12/2001, who has also noted that the petitioner had remitted the dues for the period from October, 1997 to October, 1998 before issuing summons under Section 7A of the said Act in the sum of Rs.11,847/-, but the Provident Funds Commissioner found that the petitioner’s establishment was still in default in payment of sum of Rs.2,32,942.30 and interest thereon of Rs.50,471.00. The Provident 3 Funds Commissioner, therefore, assessed the dues payable by the petitioner at Rs.2,83,413.30 for the months from November, 1997 to October, 2000. Against the said order dated 12/12/2001, the petitioner preferred an appeal to the Employees Provident Funds Appellate Tribunal, New Delhi, who after hearing the Counsel on behalf of the parties was pleased to dismiss the same by order dated 12/02/2009. 5. Both the authorities below i.e the Tribunal as well as the Commissioner have rejected the petitioner’s contention that the petitioner’s establishment was closed from March, 1999 onwards. Shri Joseph Vaz, learned counsel appearing on behalf of the respondent no.1 has also brought to my notice the provision of Section 1(5) of the said Act which provides that an establishment to which this Act applies will continue to be governed by this Act notwithstanding that the the number of persons employed therein at any time falls below 20. It is not the case of the petitioner that the petitioner had any time employed less than 20 persons. The learned Tribunal has also observed that the impugned order of the Commissioner shows that sufficient opportunities were given to him to defend his case. 6. Counsel on behalf of the petitioner submits that the petitioner was never given a copy of the inspection note dated 26/02/2001. It appears that the petitioner did not seek a copy of such a note from the 4 respondents either before the Commissioner or the Tribunal. Copies of applications being pointed out by the learned Counsel are of dates which are much after the dates when the orders under challenge were passed. Moreover no such grievance was made before the said authorities and as disclosed in the affidavit. Such a grievance is made for the first time before this Court in writ jurisdiction and, therefore, the same needs to be rejected. 7. Shri Sardessai has next submitted that the duty to pay the contributions in the first instance was of the Phil Corporation Ltd. being the employer for whom the petitioner was working as a Contractor. However, it is seen that such a submission was also not made before both the authorities below and not only that the petitioner was given a code number and had even paid some part of the contributions before the Commissioner. Shri Sardessai submits at this point of time that this point was raised in the first appeal filed before the Appellate Tribunal. If that be the case the right course of action would have been for the petitioner to call the attention of the learned Tribunal. It is more than probable that even such a point was taken in the memorandum it was given up and was not canvassed before the Tribunal at the time of arguments. Therefore, a point which was not taken before the authorities below cannot be allowed to be taken up for the first time in certiorari jurisdiction. 5 8. There is no merit in this Writ Petition and, consequently, the same is hereby dismissed. N.A. BRITTO, J. NH/-