Chattisgarh High Court
M/S Durg Transport Company vs Assistant Provident Fund Commissioner ... on 11 March, 2022
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NAFR
HIGH COURT of CHHATTISGARH, BILASPUR
WPL No. 76 of 2021
M/s Durg Transport Company Through Assistant Managing Director
Aqueel Ahmed Aged 72 Years S/o Late Hidayat Hussain, R/o Opp.
District Court, G. E. Road, Durg District Durg Chhattisgarh
---- Petitioner
Versus
Assistant Provident Fund Commissioner (C-1) C/o Regional Provident
Fund Commissioner, Block D, Scheme-32, Indragandhi Vyavsaik
Parisar, Pandri, Raipur, District Raipur Chhattisgarh
---- Respondent
For Petitioner : Shri Sudeep Johri, Advocate
For Respondent : Shri Sunil Pillai, Advocate
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
Order On Board
11/03/2022
Heard.
1. This writ petition is filed against order dated 27.08.2021 passed by Central Government Industrial Tribunal cum Labour Court, Jabalpur (MP) (for short "CGIT ") dismissing the appeal on account of non-presence of appellant/petitioner.
2. Learned counsel for the petitioner would submit that after passing of the order by the Regional/Assistant Provident Fund Commissioner, Raipur determining the amount to be paid by the petitioner, the petitioner filed an appeal in accordance with -2- provision of law before the Employees Provident Fund Appellate Tribunal, Delhi (for short "EPFAT") under Section 7-I of the Employees' Provident Funds and Miscellaneous Provisions, Act in the year 2015 itself but, subsequently, the EPFAT was abolished and all the appeals pending before the EPFAT at Delhi were transferred to the respective Central Government Industrial Tribunal which is having territorial jurisdiction of appeal. He contended that in Clause -13 of the Notification which was issued for abolition of EPFAT as well as jurisdiction of the concerned CGIT, territorial jurisdiction CGIT Jabalpur is mentioned but name of State of Chhattisgarh is not mentioned therein. Hence, on the said date i.e. the date of abolition of EPFAT or transfer of cases arising out of order passed by the Regional/ Assistant Provident Fund Commissioner, Raipur, Chhattisgarh, CGIT Jabalpur was having no jurisdiction to entertain appeal. When CGIT Jabalpur started hearing of case, no notice was issued to the appellant intimating with respect to transfer of case to the concerned Court or Tribunal or the date of hearing to be fixed before the concerned Tribunal after receipt of appeal. He also contended that the document which is collected by the petitioner and annexed along with writ petition would show that looking to the Covid-19 pandemic situation, the Tribunal has affixed the notice of postponing date of hearing of cases which were already fixed on 23.3.2020 and 24.3.2020. Subsequently, by way of separate notice, hearing dates have been further extended without mentioning any specific date. He also contended that earlier, CGIT Jabalpur was about to -3- conduct circle sitting at Bhilai, Chhattisgarh on 29.4.2020 and 30.4.2020, but looking to Covid-19 pandemic situation, the date was extended by way of publishing notice which is general in nature. Except this, no other notice was issued to the appellant by the CGIT Jabalpur, upon receiving case on transfer, for appearance on the date of hearing fixed before the CGIT Jabalpaur. Surprisingly, the petitioner received a letter from the CGIT Jabalpur dated 30th August 2021 mentioning that the appeal filed by the appellant was taken up for hearing on 27.8.2021 and it was dismissed for non-presence of appellant. Unless and until the notification of date of hearing was given by the CGIT to the petitioner/appellant, it cannot be expected that any of the litigant/appellant will presume the date of hearing of his case. More so when it is a case where the appeal was filed before the EPFAT at Delhi which was transferred by way of Notification issued by the Central Government to the CGIT at Jabalpur. Neither the EPFAT at Delhi sent information nor CGIT Jabalpur had sent information about the transfer of case or the date of hearing. Hence, the reason of non-apperance of petitioner is bonafide, because there was no intimation to the petitioner of the date fixed for hearing. He also referred to provision under Rule 15 of the Tribunal (Procedure) Rules, 1997 (for short "Rules of 1997") and would submit that when the appellant could not appear, the Tribunal could have adjourned the date of hearing or also having discretion to dismiss the appeal for default, but the Tribunal, without considering the records or the proceedings with respect to transfer of appeal and non-issuance of -4- further notice of hearing of appeal, arbitrarily and illegally dismissed the appeal for want of prosecution which is not sustainable, hence, impugned order dated 30 th August 2021 (Annexure P-1) be set aside. He also submits that respondent in its reply has filed the document (Annexure R-1) in which the jurisdiction of CGIT Jabalpur for hearing of appeal transferred from EPFAT Delhi for the appeals arising from Chhattisgarh was notified on 11.11.2019, hence, it is apparent that in the first Notification which was issued by the Central Government, the CGIT at Jabalpur was not provided with jurisdiction to hear the appeal arising out of territorial jurisdiction of Chhattisgarh.
3. Learned counsel fo respondent opposes the submission of learned counsel for the petitioner and would submit that the appeal filed by the petitioner was defective. The petitioner/appellant, subsequently, removed the defect and thereafter the appeal came up for hearing and by virtue of Notification dated 26.05.2017 issued by the Central Government, all the appeals pending before the EPFAT Delhi were transferred to CGIT of having respective jurisdiction. He contended that even if the submission of learned counsel for the petitioner is accepted that the petitioner/appellant was not sent notice of date of hearing by the concerned CGIT for any of the reason and case was dismissed only on the ground of non- presence of appellant, under Rule 15 (2) of the of the Rules of 1997, remedy is available to the petitioner to file an application under the Rules of 1997 for restoration of appeal but the petitioner -5- without availing remedy available, has directly filed writ petition, hence, in view of alternative remedy available with the petitioner, this writ petition is not maintainable.
4. I have heard learned counsel for the parties.
5. It is not in dispute from the facts pleaded in the writ petition supported by documents as well as submission of learned counsel for petitioner that the petitioner aggrieved by order of assessment determining the liability of payment, the petitioner preferred appeal before the EPFAT Delhi immediately after passing of order. Due to Notification issued by the Central Government in the month of May 2017 all the appeal pending before the EPFAT at Delhi stood transferred to respective CGIT having the jurisdiction to entertain the appeals and that is how the case of the petitioner/appellant transferred to CGIT Jabalpur. Submission of learned counsel for the petitioner/appellant that the jurisdiction to hear appeal of the territorial jurisdiction of State of Chhattisgarh is notified only in the month of November 2019, in the facts of the case, does not have much relevance because the impugned order by which the petitioner is aggrieved is passed in the Month of August 2021. The petitioner is aggrieved against the order dated 30 th August 2021 passed by CGIT, Jabalpur by which the appeal filed by the petitioner/appellant was dismissed in default i.e. on account of non- appearance of the petitioner, Tribunal has not considered merits of the case. Rule 15 (2) of the Rules 1997 specifically provides for the remedy for filing application for restoration of the appeal within 30 -6- days.
6. Admittedly, the petitioner has not approached the CGIT Jabalpur by way of filing application under Rule 15 (2) of the Rules of 1997
7. Hence, in the opinion of this Court, when the petitioner is having efficacious alternative remedy available with it, to redress the grievance as raised in this petition, I am not inclined to entertain this writ petition and, therefore, it is dismissed.
8. However, liberty is granted to the petitioner to approach CGIT Jabalpur by way of filing application under Rule 15 (2) of the Rules of 1997 within a period of 15 days. The CGIT Jabalpur may consider and decide the said application considering the grounds raised in this writ petition by the petitioner that it was not served with notice of date of hearing before the CGIT Jabalpur or transfer of his case to the CGIT Jabalpur and further pendency of writ petition before this Court, in accordance with law.
Sd/-/--/-/-
(Parth Prateem Sahu) Judge Praveen