Gujarat High Court
Unjha Pragati Mandal Through Secretary vs Union Of India on 9 April, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1421 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 24834 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNJHA PRAGATI MANDAL THROUGH SECRETARY
Versus
UNION OF INDIA & ANR.
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Appearance:
MR NS SHEVADE(845) for the Appellant(s) No. 1
MS PJ DAVAWALA(240) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 09/04/2024
ORAL JUDGMENT
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NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 This appeal under Clause 15 of the Letters Patent has been filed challenging the order dated 17/12/2015 passed by the learned Single Judge. By the order under challenge, the learned Single Judge dismissed the petition of the appellant - Mandal.
2 Facts in brief, the learned Single Judge has set out the same and reads as under:
"16. Feeling aggrieved by the said orders, the petitioner herein filed, on or around 14th December,2004, appeal under Section 7-I of the Act before the Learned Appellate Tribunal constituted under the provisions of the Act.
17. Under the provisions of the Act, the appeal against the order passed under Section 7-A of the Act can be filed on compliance of the condition prescribed under Section 7-O of the Act which obliges the appellant to deposit 75% of the amount due and determined by officer under Section 7-A of the Act. The condition prescribed under Section 7-O of the Act is condition precedent for maintaining the appeal under Section 7-I of the Act.
18. In this view of the matter, Learned Appellate Tribunal considered the petitioner's application for waiver of the condition of pre-deposit and by order dated 16.02.2005, the Learned Appellate Tribunal declined the relief of waiver and directed the petitioner to comply with condition under Section 7- Page 2 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024 NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined O of the Act and deposit 75% of the adjudicated amount. In the said order dated 16.02.2005, the learned Tribunal also clarified that if the amount is not deposited within four weeks then the appeal shall be treated as dismissed.
19. Further hearing was scheduled on 15.03.2005, which was to take place on compliance of the said order dated 16.02.2005 i.e. compliance of the condition under Section 7-O of the Act.
20. The relevant part of the said order dated 16.02.2005 reads thus:-
"In the facts of the case, the condition of deposit of 75% pf the determined amount cannot be waived. Let 75% of the determined amount be deposited with the APFC, Ahmedabad within four weeks from today and receipt be filed with the Registrar a week thereafter. If the amount ordered is deposited, appeal shall be deemed admitted and in such an eventuality, Registrar shall complete the service and pleadings and list the matter for final hearing before the Tribunal. In case, the amount ordered above is not deposited, appeal shall be treated as dismissed and file be consigned to record room. Fix before the Registrar on 15.03.2005. Till the disposal of the appeal, operation of impugned order shall remain stayed subject to appellate depositing 75% of the determined amount as ordered above.
21. It appears that the petitioner failed to comply the said condition within the time limit prescribed by the learned Tribunal i.e. within four weeks. Actually, the petitioner did not deposit the amount and did not comply the condition under Section 7-O of the Act according to the order dated 16.02.2005, Page 3 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024 NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined even after the time limit mentioned in the said order dated 16.02.2005.
22. In this view of the matter, learned Appellate Tribunal finally passed order dated 07.10.2005 and dismissed the appeal on the ground of noncompliance of the condition.
23. The said order dated 07.10.2005 reads thus:-
"Copy of the appeal is served. Copy of order dated 16.02.2005 stipulates deposit of 75% of amount within four week when the appeal will be admitted otherwise it stands rejected and appeal file consigned to records. The res. from the appellant side has confirmed that amount has not yet made/deposited. The case is accordingly closed.
24. The petitioner is aggrieved by the said orders dated 31.08.2004, 19.10.2004, 16.02.2005 and 07.10.2005 and has challenged the said orders in present petition."
3 Mr.Shevade, learned counsel for the appellant, would submit that the order and proceedings under Section 7-A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, are without jurisdiction. That the school had never reached or crossed the threshold of 20 or more employees. The previous Head-Master had made a voluntary application, was never found on record of the school and even if such an Page 4 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024 NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined application , if made, should have been treated as withdrawn when admittedly not more than 15 employees were on record and there was even no notification as per the provisions of Sec.1(4) of the Employees' Provident Fund Act.
3.1 Mr.Shevade, learned counsel, would rely on the decision of the Madras High Court rendered in the case of J. Engineering Company, Madurai Vs. Assistant Provident Fund Commissioner, Madurai., reported in 2001 (4) L.L.N 930., and submit that in absence of a notification under Sec.1(4) of the Act, the order was bad. 4 Ms.P.J.Davawala, learned counsel appearing for the respondent, would support the order of the learned Single Judge.
5 On appreciation of the facts as set out by us in the earlier part of this order, it is apparent that but for non deposit of the mandatory 75% of the demand, the appeal wouldn't have been dismissed. The order of the Appellate Page 5 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024 NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined Authority reads as under:
"Arguments on the point of waiver heard. Learned counsel for the appellant contends that the Principal of the appellant establishment had applied for voluntary coverage without any instructions of the management. No notification under Section 1(4) of the EPF & MP. Act, 1952 was passed by the Central Government. Accordingly, the dues determined by the APFC, Ahmedabad vide his order under Section 7-A of the said Act are not liable to be paid by the appellant. He has also placed reliance on a judgement rendered by the Hon'ble High Court of Madras reported in 2001 (4) LLN 930. Prima-facie, I am of the view that the facts involved in this case are different from the judgement of the Hon'ble High Court of Madras. In the said case, the application for voluntary coverage was withdrawn and thereafter the RPFC after lapse of one year had allotted code number and raised demand. In this case, at no stage, such request was withdrawn. Besides this, prima-facie, I am of the view that appellant would be bound by the Principal who was running the day to day affairs of the school, and it cannot now disown the act done by the principal, after a lapse of long period, after passing of the impugned order. Thus, in the facts of the case, the condition of deposit of 75% of the determined amount cannot be waived. Let 75% of the determined amount be deposited with the APFC, Ahmedabad within four weeks from today and receipt be filed with the Registrar a week thereafter. If the amount ordered is deposited, appeal shall be deemed admitted and in such an eventuality, Registrar shall complete the service and pleadings and list the matter for final hearing before the Tribunal. In case, the amount ordered above is not deposited, appeal shall be treated as dismissed and file be consigned to record room. Fix before the Registrar on 15.03.2005. Till the disposal of appeal, Page 6 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024 NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined operation of impugned order shall remain stayed subject to appellant depositing 75% of the determined amount as ordered above."
6 Therefore, in our opinion, the arguments made before us on merits can only be considered in the appeal that has now otherwise been dismissed for non payment of the 75% of the demand. Pending this Letters Patent Appeal, an order was passed on 25.07.2017 directing the appellant to deposit the amount, which reads as under:
"In the facts and circumstances of the case and having heard Shri N.S.Shevada, learned advocate appearing on behalf of the appellant, we are of the opinion that before considering the case on behalf of the appellant, let the appellant deposit the amount as determined under Sec.7A of the EPF Act with the Registry of this Court. Shri Shevade, learned advocate appearing on behalf of the appellant has stated at the bar that the appellant shall deposit the amount with the Registry of this Court within a period of two weeks from today. Let the appellant deposit the amount as determined under Section 7A of the EPF Act on or before 08/08/2017. Thereafter, learned advocate appearing on behalf of the appellant shall be heard on merits. Stand over to 09/08/2017."
7 On 08.06.2022, this Court passed the following order:
" Mr. Shevade, learned advocate for the appellant needs time to place on record some decisions which Page 7 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024 NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined will have a direct bearing.
At this stage, Ms. P.J. Davawala, learned advocate for the respondent No.2 has urged that there is an urgency on the part of the respondent. She has submitted that the application also had been moved earlier for fixing early hearing of the matter. She has made a further request for disbursement of the amount which has been directed by this Court to be deposited vide its order dated 25.7.2017 (Coram: Hon'ble Mr. Justice M.R. Shah, Hon'ble Mr. Justice B.N. Karia, as their Lordships then were). She has urged that the said amount, in its all probabilities, is not invested in fixed deposit, as there was no direction from the Court and there will be no issue with regard to the recovery.
Such submissions being resisted on the ground that the appellant is ready to proceed with the matter and the amount is invested in fixed deposit by the registry.
Let the matter be posted for final hearing on 16.6.2022.
In the meantime, the registry shall submit the report as to whether the amount is invested in fixed deposit or not?
After receiving the said report, the Court shall consider the request made by the respondent, after hearing both the parties.
If any inconvenience to the learned advocates on either side to proceed with the matter on 16.6.2022, alternative arrangement shall be made."
7.1 What is evident from a subsequent report that the Page 8 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024 NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined amount of Rs.5,74,896/- has been invested by the Registry in F.D.R No. 17299 with State Bank of India, Ahmedabad Gujarat High Court Complex Branch, initially for a period of three years to be renewed from time to time. 8 We appreciate the anxiety of the appellant as to non- applicability of the provisions of the EPF Act, however, we cannot even brush aside the aspect that an appeal was preferred and the same is now dismissed only on the ground of non-compliance of mandatory deposit. In the interest of justice, therefore, while dismissing the appeal, without adverting to merits of the first order dated 31.08.2004 passed under Sec.7A of the EPF Act, which can be agitated before the appellate authority, we deem it fit to direct the Registry to refund the principal amount of Rs.5,74,896/- together with interest to the appellant on a condition that, on his undertaking to deposit the 75% of the amount of Rs.5,74,896/- before the Appellate Authority within three weeks from the date of receipt of certified copy of this order, the appeal shall be restored Page 9 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024 NEUTRAL CITATION C/LPA/1421/2016 JUDGMENT DATED: 09/04/2024 undefined and heard on merits and disposed off in accordance with law within three months thereafter from the date of the requisite pre-deposit amount.
9 With the aforesaid observations, the appeal stands dismissed with no orders as to costs.
(BIREN VAISHNAV, J) (PRANAV TRIVEDI,J) BIMAL Page 10 of 10 Downloaded on : Fri Apr 19 21:20:45 IST 2024