Gujarat High Court
Employees Provident Fund Organisation ... vs Faze Three Limited & on 26 November, 2015
Bench: Jayant Patel, Vipul M. Pancholi
C/LPA/1050/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1050 of 2015
In SPECIAL CIVIL APPLICATION NO. 5713 of 2014
With
LETTERS PATENT APPEAL NO. 1051 of 2015
In
SPECIAL CIVIL APPLICATION NO. 3911 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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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EMPLOYEES PROVIDENT FUND ORGANISATION &
1....Appellant(s)
Versus
FAZE THREE LIMITED & 1....Respondent(s)
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Appearance:
MS E.SHAILAJA, ADVOCATE for the Appellant(s) No. 1 - 2
MR DEEPAK DAVE, ADVOCATE for the Respondent(s) No.1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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C/LPA/1050/2015 JUDGMENT
Date : 26/11/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. As in both the appeals common question arises for consideration, they are being considered simultaneously.
2. Letters Patent Appeal No.1050 of 2015 has been preferred against the order dated 05.11.2014 passed by the learned Single Judge of this Court in Special Civil Application No.5713 of 2014, whereby the learned Single Judge, for the reasons recorded in the order, found that no case is made out for interference to the order passed by the Tribunal under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act') and the learned Single Judge dismissed the petition.
3. Whereas, Letters Patent Appeal No.1051 of 2015 is preferred against the order dated 05.11.2014 passed by the learned Single Judge in Special Civil Application No.3911 of 2014, whereby, the learned Single Judge, based on the order passed by the Tribunal, directed refund of the amount of Rs.88,17,095/- with interest at the rate of 9% per annum and certain directions were also issued to the Secretary of the Ministry of Labour and Employment, Union of India, regarding the affairs of Regional Provident Fund Commissioner's office at Surat.
4. It may also be recorded that after the order was Page 2 of 11 HC-NIC Page 2 of 11 Created On Tue Dec 01 00:32:59 IST 2015 C/LPA/1050/2015 JUDGMENT passed by the learned Single Judge in Special Civil Application No.5713 of 2014, the review application being Misc. Civil Application No.363 of 2015 was preferred by the appellant. Similarly, in another Special Civil Application No.3911 of 2014, the appellant had also preferred review application being Misc. Civil Application No.364 of 2015 for review. But, the learned Single Judge, vide order dated 08.05.2015 below both the applications, dismissed the review applications. Under the circumstances, the appellant has also challenged the order passed by the learned Single Judge below the aforesaid Misc. Civil Applications in respective Letters Patent Appeal.
5. We have heard Mrs. Shailaja, learned counsel appearing for the appellant and Mr. Deepak Dave, learned counsel appearing for respondent No.1 company. So far as respondent No.2 - Tribunal is concerned, it is a formal party.
6. The contention raised on behalf of the appellant by the learned counsel for the appellant was that the initial order under Section 7A of the Act was passed by the Regional Provident Fund Commissioner in detail and after considering all relevant aspects. However, in appeal before the Tribunal being ATA No.126(5) of 2014, without giving sufficient opportunity of hearing, the order dated 13th February 2014 was passed by the Tribunal, whereby the order of the Regional Provident Fund Commissioner was set aside and the matter has been remanded for fresh inquiry in Page 3 of 11 HC-NIC Page 3 of 11 Created On Tue Dec 01 00:32:59 IST 2015 C/LPA/1050/2015 JUDGMENT accordance with law. Learned counsel submitted that as per the requirement of the Rule, the Tribunal has to give appropriate time to the appellant for filing reply or otherwise. The learned advocate, who represented the appellant before the Tribunal, did ask for time but such request was not granted and the Tribunal rushed up the matter for its decision immediately on the next date. She submitted that had the opportunity been given to the appellant, the case could have been made out for dismissal of the appeal but such opportunity as was not given, the order was vulnerable. However, the learned Single Judge did not consider the said aspect properly and hence this Court may consider in the present appeal. It was also submitted that when the Tribunal had passed the order, the amount of Rs.88,17,095/- was already recovered and therefore the learned Single Judge, in exercise of his discretion, ought not to have directed for refund of the amount but could have said subject to final order which may be passed after remand. Therefore, to that extent, the learned Single Judge committed error which may be considered by this Court in the present appeal.
7. Whereas, Mr. Dave, learned counsel appearing for respondent No.1 company submitted that without identifying the workers and without compelling the presence of the contractor, the proceedings were concluded by the Provident Fund Commissioner. He further submitted that this Court had directed for even giving opportunity of cross-examination of the witness of the Provident Fund Commissioner but no such Page 4 of 11 HC-NIC Page 4 of 11 Created On Tue Dec 01 00:32:59 IST 2015 C/LPA/1050/2015 JUDGMENT express opportunity was given and therefore the Tribunal was justified in setting aside the order of the Provident Fund Commissioner under Section 7A and has directed for remand of the matter. He submitted that the order of remand could not be said to be illegal. Further, when the Tribunal had set aside the order of the Provident Fund Commissioner under Section 7A, the recovery, if any made was required to be refunded and the same has been rightly ordered by the learned Single Judge. He also submitted that pending the present proceedings, the recovery with interest at the rate of 9% per annum was already effected and matter is pending before the Provident Fund Commissioner for fresh consideration as ordered by the Tribunal. Under these circumstances, this Court may not interfere to the order passed by learned Single Judge in the present appeal.
8. It is undisputed position that the order was passed under Section 7A by the Provident Fund Commissioner. But, at the same time, it is also undisputed position that this Court in Special Civil Application No.9730 of 2013, vide order dated 23.09.2013, had specifically directed the Provident Fund Commissioner to give an opportunity of cross- examination of the witness i.e. Assistant Provident Fund Commissioner and thereafter only the matter could have been proceeded further. The learned counsel for the appellant during the course of the hearing is not in a position to show any material from the record of the Provident Fund Commissioner about the specific Page 5 of 11 HC-NIC Page 5 of 11 Created On Tue Dec 01 00:32:59 IST 2015 C/LPA/1050/2015 JUDGMENT opportunity given for cross-examination of the witness to the company concerned. However, she only submitted that after the matter was remanded by this Court in Special Civil Application No.9730 of 2013, vide order dated 23.09.2013, the date was fixed and therefore it should be deemed that the same was for permitting cross-examination of the witness. When this Court further inquired as to whether any proceedings are drawn that the date is fixed for cross-examination of the witness and on behalf of the company nobody is present and therefore the right of the cross- examination is closed or not, the learned counsel fairly submitted that such proceedings are not drawn. Under these circumstances coupled with the aspect of identification of the workman concerned by securing the presence of the labour contractor, if the Tribunal has exercised the discretion for remand of the matter to the Provident Fund Commissioner, such an exercise of discretion cannot be said to be perverse.
9. If the grievance raised for not giving sufficient opportunity to the learned advocate appearing for the Provident Fund Commissioner before the Tribunal is considered, the Tribunal at para 3, has observed thus:
"3. The learned Advocate for the Respondent has opposed the appeal and requested that no reliefs be granted, since the Appellant was provided the opportunity which has not been utilized by the Appellant. The Advocate for the Respondent has argued that, the Appellant was provided fullest opportunities to submit their sayings during the inquiry proceedings and the order has been passed in conformity with the statute. Hence requires no reliefs."Page 6 of 11
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10. If the matter is considered as it is, it cannot be said that any request was made on behalf of the Provident Fund Commissioner before the Tribunal and such was declined by the Tribunal. If the learned advocate appearing for the Provident Fund Commissioner in the proceedings before the Tribunal proceeded further for making submission, the question of giving time to file reply as per the rule would be inconsequential. It is hardly required to be stated that if both the sides before any forum agree to proceed with the matter, there is no question of adjournment or giving further time to any party to the proceedings. However, the learned advocate appearing for the appellant by relying upon e-mail communication of the advocate, who represented the appellant before the Tribunal, attempted to contend that she had made demand for adjournment but such time was not granted and therefore she submitted that the recital in the judgment of the Tribunal at para 3 may not be considered as fully correct.
11. As such, the so-called e-mail communication is later to the decision of the Tribunal and not during the time when the matter was pending before the Tribunal. Further, even if it is considered for the sake of examination that she requested for time and the said time was not granted by the Tribunal, then also the matter would not end there, more particularly, when on the aspect of breach of principle of natural justice law is further developed Page 7 of 11 HC-NIC Page 7 of 11 Created On Tue Dec 01 00:32:59 IST 2015 C/LPA/1050/2015 JUDGMENT to the extent that the prejudice must be satisfactorily demonstrated on account of the breach of principle of natural justice. When, as observed earlier, there were two basic deficiencies in the order passed by the Provident Fund Commissioner under Section 7A; one for not compelling the presence of the labour contractor for the purpose of the identification of the labourer and the another was for not giving express opportunity of cross-examination, and if the discretion is exercised by the Tribunal under such circumstances to remand the matter and when such exercise is not perverse, it cannot be said that any prejudice is caused to the appellant, who is otherwise supposed to act independently as a quasi- judicial authority. Hence, we find that on such ground the order of the Tribunal would not be vulnerable. Apart from the above, the fact remains that this Court in exercise of the powers under Article 226 or 227 of the Constitution may not interfere to the order of the Tribunal unless this Court finds that the discretion has not been properly exercised by the Tribunal or the exercise of discretion is perverse. Further, Court may also decline the entertainment of the complaint for alleged breach of principle of natural justice when Court finds that no prejudice is caused on account of the alleged breach of principle of natural justice.
12. The learned counsel for the appellant made a vague attempt by relying upon the order passed by the Provident Fund Commissioner on the date fixed after the matter was remanded by the High Court by contending that after the order dated 23.09.2013 in Page 8 of 11 HC-NIC Page 8 of 11 Created On Tue Dec 01 00:32:59 IST 2015 C/LPA/1050/2015 JUDGMENT Special Civil Application No.9730 of 2013, the Provident Fund Commissioner had recorded that on the date fixed nobody was present on behalf of the company for cross-examination and therefore he had no option but to proceed further. She, therefore, submitted that such may be termed as the proceedings drawn for closure of the cross-examination. We are afraid such can be considered as sufficient compliance to the order passed by this Court. It was for the Provident Fund Commissioner to give an express notice by fixing the date for cross-examination of the Assistant Provident Fund Commissioner and thereafter if none remained present on behalf of the company, the matter might stand on different footing and different consideration but when no such specific notice was issued or the date was fixed, it could not be said that the opportunity was given for cross-examination and there was closure of the cross-examination as sought to be canvassed. Therefore, we cannot countenance such an attempt on the part of the learned counsel for the appellant.
13. If the aforesaid aspect is considered with the reasons recorded by the learned Single Judge while undertaking the judicial scrutiny of the order of the Tribunal in the petition preferred by the appellant being Special Civil Application No.5713 of 2014, we do not find that any case is made out for interference in exercise of the appellate jurisdiction of this Court in Letters Patent Appeal.
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14. On the merits of the order passed by the learned Single Judge in Special Civil Application No.5713 of 2014 is concerned, when the Tribunal had set aside the order of the Provident Fund Commissioner under Section 7A and the matter was remanded, the refund, if any, in normal circumstances would be consequential. The learned Single Judge when had not interfered with the order of the Tribunal in appeal as per the decision in Special Civil Application No.5713 of 2014, if the learned Single Judge directed for refund of the amount with reasonable interest at the rate of 9% per annum, such an order could not be said to be erroneous on the face of it nor it could be said that the same was by exercise of discretion perverse to the record nor it could be said as having passed without jurisdiction. Further, as observed by us hereinabove, when we have also found that the order passed by the learned Single Judge in Special Civil Application No.5713 of 2014 would call for no interference, as a necessary corollary the another order passed by the learned Single Judge in Special Civil Application No.3911 of 2014 would also call for no interference.
15. In Special Civil Application No.3911 of 2014 some observations were made by the learned Single Judge for holding of inquiry in the office of the Provident Fund Commissioner, Surat. However, the learned counsel for the appellant has stated that the inquiry is already held. Under these circumstances, no further observation deserves to be made except leaving to the discretion of the authority to consider the matter in Page 10 of 11 HC-NIC Page 10 of 11 Created On Tue Dec 01 00:32:59 IST 2015 C/LPA/1050/2015 JUDGMENT accordance with law.
16. In view of the above, no case is made out for interference. Hence, both the appeals are meritless and therefore dismissed.
(JAYANT PATEL, ACJ.) (VIPUL M. PANCHOLI, J.) Jani Page 11 of 11 HC-NIC Page 11 of 11 Created On Tue Dec 01 00:32:59 IST 2015