If an effective remedy is available to the aggrieved person, it will ordinarily not entertain a Petition under Article 226 of the Constitution: The High Court of Sikkim

THE HIGH COURT OF SIKKIM : GANGTOK Civil Extraordinary Jurisdiction) DATED : 22nd October 2021 SINGLE BENCH: THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE W.P.(C) No.319 Petitioner The Gangtok Municipal Corporation Respondent versus Union of India & Ors. Application under Article 226 of the Constitution of India Mr. Jorgay Namka and Mr. Simeon Subba Advocates for the Ms. Sangita Pradhan Assistant Solicitor General of India for the Respondent No.1. Mr. K.T. Tamang Advocate for Respondents No.2 and 3. O R D E R Meenakshi Madan Rai J. The Petitioner being a Statutory Body established under the Sikkim Municipalities Act 2007 claims that the provisions of the Employees‟ Provident Funds and Miscellaneous Provisions Act 1952 is not applicable in the State of Sikkim as it was not enforced in compliance to the provisions of Article 371F of the Constitution of India. It is also the Petitioner‟s case that the provisions of the EPF & MP Act 1952 is not applicable to the Petitioner Corporation. In this circumstance impugned Order dated 05.07.2019 passed by Respondents is illegal and void hence the prayers in the Petition which inter alia are as follows „(a) to hold that the provisions of the Central Act are not applicable to the Petitioner and b) to hold that the provisions of the Employees‟ Provident Funds and Miscellaneous Provisions Act 1952 is not applicable to the Petitioner Corporation and W.P.(C) No.319 2 The Gangtok Municipal Corporation vs. Union of India & Ors. c) to hold that the Petitioner is not the principal employer of the Municipal wards Association Committee Samaj which is a non profit making NGO as decided by the Respondents and d) to issue an appropriate writ in the nature of mandamus or any other writ order or direction holding that the proceedings conducted by the Respondents is without jurisdiction bad and illegal and or e) to issue an appropriate writ in the nature of mandamus or certiorari or any other writ order or direction quashing the Order dated 05.07.2019 passed by the Respondent f) and upon cause s being shown and after hearing the parties be pleased to make the rule absolute and or pass such other orders g) to pass any other direction s relief s order s that may be deemed fit and proper in the circumstances of this case h) to allow the costs of the Writ Petition in favour of the Learned Counsel for the Respondents No.2 and 3 while challenging the Maintainability of the Petition contended that where an alternative efficacious remedy is available the Writ Jurisdiction of this Court cannot be invoked. That it is settled law that Petitions under Writ Jurisdiction are not to be entertained by the High Court when an efficacious alternative remedy is available this being a Rule of self imposed limitation although discretion lies with the Court to permit a Petition under Article 226 of the Constitution despite existence of such a remedy. That it is also a Rule of policy convenience and discretion rather than a Rule of law. Towards this submission strength was garnered from the ratio in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal1. That the Hon‟ble Supreme Court in United Bank of India vs. Satyawati Tondon & Others2 propounded that the High Court overlooked the settled law that it will ordinarily not entertain a Petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with equal rigour in matters 11 SCC 603 28 SCC 110 W.P.(C) No.319 3 The Gangtok Municipal Corporation vs. Union of India & Ors. involving recovery of Taxes Cess Fees other types of Public Money and the dues of Banks and other Financial Institutions. That in the instant matter Public Money is involved and the Petitioner must necessarily exhaust the remedies available to it under the Statute for which the attention of this Court was drawn to the provisions of Section 7I and Section 7L of the EPF & MP Act 1952. That in these circumstances as an efficacious remedy has been provided by the Statute which has not been exhausted by the Petitioner the Writ Petition is not maintainable. Learned Assistant Solicitor General for the Respondent No.1 for her part relied on the submissions put forth by Learned Counsel for the Respondents No.2 and 3 and had no further submissions to make. Contesting the submissions of the Respondents No.2 and 3 Learned Counsel for the Petitioner while relying on the ratio of the Hon‟ble Supreme Court in M s. S.K. Nasiruddin Beedi Merchant Ltd. vs. Central Provident Fund Commissioner and Another3 and on State of H.P. and Others vs. Gujarat Ambuja Cement Ltd. and Another4 argued that the Respondents No.2 and 3 have assumed jurisdiction when they did not possess any as they were not entitled to issue Orders such as the impugned one. That the pivotal contentions of the Petitioner are that the EPF & MP Act 1952 is not applicable to it and the Petitioner is not bound to pay the amount as ordered in the impugned Order as the concerned Employees are not that of the Petitioner Corporation. Hence the Petition is maintainable. 3 AIR 2001 SC 850 4 AIR 2005 SC 3936 W.P.(C) No.319 4 The Gangtok Municipal Corporation vs. Union of India & Ors. I have carefully heard the parties perused the averments and all documents on record. 6.(i) At this juncture it is relevant to notice that the impugned Order dated 05.07.2019 is one under Section 7A of the EPF & MP Act 1952 in respect of M S Gangtok Municipal Corporation for the period April 2012 to August 2016 having Diary No.46 2016. In sum and substance the Order concludes inter alia as under “4. After having quantified the labour payment for a particular project PF & Allied liability was calculated as to be(sic) 25.61% of the total wages paid to the labours. Accordingly Contractors Contractual employees engaged therein by the contractors financial year have been calculated. ” for each Thereafter necessary calculations have been made for the Financial Year 2012 13 Financial Year 2013 14 Financial Year 2014 15 and Financial Year 2015 16. It was further ordered inter alia as follows “And therefore having perused the available records submission made by the establishment representative report cum statement of dues and deposit filed by representative cum Area Enforcement Officer non discovery of any counter evidence to the submitted report records and due application of mind I Surjeet Kumar in exercise of power vested by(sic) me under Section 7A of the Act determine the dues to the tune of Rs 95 45 845 out of which Rs 85 68 430 has been paid by the establishment and therefore the Balance dues is Rs 9 77 415 which is quantified as assessed dues for the inquiry period 04 2012 to 08 2016. The detail of dues and Further the time allowed for 15 days to make the payment of dues as mentioned above will not absolve the employer of his liability to pay Penal Interest and Penal damages contemplated under Section 7Q and 14B of the Act and the other actions as provided under Section 8 and 14 of the EPF & MP Act 1952 that may be initiated against the establishment where the payments are not made within due date and the department shall be at liberty to proceed against the establishment for non submission of statutory returns within the prescribed time schedule as W.P.(C) No.319 5 The Gangtok Municipal Corporation vs. Union of India & Ors. per relevant provisions of the Act and the Schemes framed there under. .. ” iii) Section 7I provides for Appeals to Tribunals and Section 7L to Orders of Tribunal which are extracted hereinbelow for easy reference “7 I. Appeals to Tribunal.—(1) Any person aggrieved by a notification issued by the Central Government or an order passed by the Central Government or any authority under the proviso to sub section or sub section of section 1 or section 3 or sub section of section 7A or section 7B except an order rejecting an application for review referred to in sub sectionthereof] or section 7C or section 14B may prefer an appeal to a Tribunal against such notification or order. 2) Every appeal under sub sectionshall be filed in such form and manner within such time and be accompanied by such fees as may be prescribed. 7L. Orders of Tribunal.—(1) A Tribunal may after giving the parties to the appeal an opportunity of being heard pass such orders thereon as it thinks fit confirming modifying or annulling the order appealed against or may refer the case back to the authority which passed such order with such directions as the Tribunal may think fit for a fresh adjudication or order as the case may be after taking additional evidence if necessary. 2) A Tribunal may at any time within five years from the date of its order with a view to rectifying any mistake apparent from the record amend any order passed by it under sub sectionand shall make such amendment in the order if the mistake is brought to its notice by the parties to the appeal: Provided that an amendment which has the effect of from or otherwise increasing the liability of the employer shall not be made under this sub section unless the Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. passed under this section to the parties to the appeal. 4) Any order made by a Tribunal finally disposing of an appeal shall not be questioned in any court of 3) A Tribunal shall send a copy of every order the amount due In light of the specific provisions of law and the observations made in the ratiocinations referred to supra by Learned Counsel for the Respondents No.2 and 3 in my considered opinion before invoking the Writ Jurisdiction of this Court the W.P.(C) No.319 6 The Gangtok Municipal Corporation vs. Union of India & Ors. Petitioner is to necessarily exhaust the remedy available to it under the Statute. Writ Petition disposed of accordingly. No order as to costs. Judge 22.10.2021 ml Approved for reporting : Yes 

Summary: The influence was garnered from the ratio in Commissioner of Income Tax and Others v. Chhabil Dass Agarwal[(2014) 1 SCC 603]. That, the Hon’ble Supreme Court in United Bank of India v. Satyawati Tondon &amp; Others[(2010) 8 SCC 110] propounded that the High Court overlooked the settled law that it will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with equal rigour in matters involving the recovery of taxes, cess, fees, etc. In the Hon’ble High Court of Sikkim led through the single-bench by Justice Meenakshi Madan Rai in the matters of The Gangtok Municipal Corporation v. Union of India and Ors.[WP(C)/38/2019]. The facts of the case are the Petitioner being a Statutory Body established under the Sikkim Municipalities Act, 2007, claims that the provisions of the Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952, (for short the “EPF &amp; MP Act, 1952”) is not applicable in the State of Sikkim as it was not enforced in compliance to the provisions of Article 371F of the Constitution of India. It is also the Petitioner’s case that the provisions of the EPF &amp; MP Act, 1952, is not applicable to the Petitioner Corporation. The counsel from the respondents contended that where an alternative, efficacious remedy is available, the Writ Jurisdiction of this Court cannot be invoked. That, it is settled law that Petitions under Writ Jurisdiction are not to be entertained by the High Court when an efficacious, alternative remedy is available, this being a Rule of self-imposed limitation, although discretion lies with the Court to permit a Petition under Article 226 of the Constitution, despite the existence of such a remedy. That, it is also a Rule of policy, convenience and discretion rather than a Rule of law. The counsel for the Petitioners, while relying on the ratio of the Hon’ble Supreme Court in M/s. S.K. Nasiruddin Beedi Merchant Ltd., v. Central Provident Fund Commissioner &amp; Anr. and in State of H.P. and Others v. Gujarat Ambuja Cement Ltd. and Another, argued that the Respondents No.2 and 3 have assumed jurisdiction when they did not possess any, as they were not entitled to issue Orders such as the impugned one. That, the pivotal contentions of the Petitioner are that the EPF &amp; MP Act, 1952, is not applicable to it and the Petitioner is not bound to pay the amount as ordered in the impugned Order, as the concerned Employees are not that of the Petitioner Corporation. Hence, the Petition is maintainable. The court concluded “Necessary calculations have been made for the Financial Year 2012-13, Financial Year 2013-14, Financial Year 2014-15 and Financial Year 2015-16. It was further ordered inter alia. Section 7I provides for Appeals to Tribunals and Section 7L to Orders of Tribunal The High Court of Sikkim directed “In light of the specific provisions of law and the observations made in the ratiocinations referred to supra by Learned Counsel for the Respondents No.2 and 3, in my considered opinion, before invoking the Writ Jurisdiction of this Court, the Petitioner is to necessarily exhaust the remedy available to it under the Statute.”