Bombay High Court
M/S. Carona Ltd vs Assistant Provident Fund Commissioner on 19 October, 2022
Bench: Dipankar Datta, Madhav J. Jamdar
10-WP.6418.2022
SALUNKE IN THE HIGH COURT OF JUDICATURE AT BOMBAY
JV
CIVIL APPELLATE JURISDICTION
Digitally signed
by SALUNKE J V
Date: 2022.10.19
20:29:02 +0530
WRIT PETITION NO. 6418 OF 2022
M/s. Carona Ltd. } Petitioner
Versus
Assistant Provident Fund }
Commissioner } Respondent
Ms. Samiksha Kanani for the petitioner.
Mr. Manohar N. Rajput for the respondent.
CORAM: DIPANKAR DATTA, C. J. &
MADHAV J. JAMDAR, J.
DATE: OCTOBER 19, 2022
P.C.:
1. Orders dated 9th November 2020, under section 14B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereafter "the said Act", for short) and under section 7Q of the said Act, are the subject matter of challenge in an appeal that the petitioner has carried therefrom before the Central Government Industrial Tribunal No. 2, Mumbai (hereafter "the CGIT-2", for short).
2. In this writ petition dated 30th May 2022, in paragraph 2.3, it has been alleged that in the absence of the Presiding Officer and the Registrar of the CGIT-2, statutory appeals instituted by the litigants are not being heard. Resting on such claim, prayer in this writ petition is for an order on the respondents to refrain from taking coercive measures against Page 1 of 4 J.V.Salunke,PS 10-WP.6418.2022 the petitioner till the pendency of the statutory appeal before the CGIT-2.
3. We find from the previous orders that ad-interim relief has been granted to the petitioner. Such relief is continuing from 1st June 2022 till date, and is to expire on 21st October 2022, unless extended further. The writ petition has been listed at the instance of Ms. Kanani, learned advocate for the petitioner, who seeks extension of ad-interim relief.
4. Mr. Rajput, learned advocate for the respondent, has vehemently opposed the prayer of Ms. Kanani. According to him, although an order under section 14B of the said Act is appealable under section 7I thereof, an order under section 7Q of the said Act is not so amenable to appeal before the CGIT. It is, therefore, the contention that the appeal against the order dated 9th November 2020 passed under section 7Q of the said Act is not maintainable. Reliance is sought to be placed on a decision of a learned Single Judge of the Madhya Pradesh High Court dated 13th January 2020 in Writ Petition No. 28789 of 2019 (M/s. Sumedha Vehicles Pvt. Ltd. vs. Central Government Industrial Tribunal and Ors.).
5. Ms. Kanani has sought to distinguish the decision in M/s. Sumedha Vehicles (supra) by contending that the Madhya Pradesh High Court was seized of a writ petition wherein separate orders were passed on different dates under sections 7A and 7Q of the said Act and it was not a composite order that the Court was called upon to consider. She has invited our attention to the fact that although separate orders have been passed by the Assistant Provident Fund Commissioner in the present case but, in effect, the second Page 2 of 4 J.V.Salunke,PS 10-WP.6418.2022 order under section 7Q of the said Act is a follow up of the first order under section 14B of the said Act.
6. Our attention has been drawn by Ms. Kanani to a decision of a learned Single Judge of the Delhi High Court in Rajiv Gandhi Cancer Institute and Research Center vs. Regional provident Fund Commissioner, Delhi North, reported in 2021 SCC OnLine Del. 4237. The Delhi High Court appears to have referred to the decision of the Supreme Court in Arcot Textile Mills Ltd. vs. Regional Provident Fund Commissioner, reported in (2013) 16 SCC 1.
7. In Arcot Textile Mills Ltd. (supra), the Supreme Court, upon close examination of the provisions of the said Act, held that an appeal being a creature of the Statute, no appeal under section 7I of the said Act is available against an order passed under section 7Q thereof. However, if the order under section 7Q levying interest is not an independent order but is an order passed along with an order under section 7A of the said Act, the same should be construed as a composite order which would be amenable to appeal under section 7I of the said Act. In this connection, the observations of the Supreme Court in paragraphs 20 and 21 of the decision are relevant.
8. Bearing in mind the statement of law in Arcot Textile Mills (supra), we have proceeded to consider the orders that had been impugned in the appeals before the CGIT-2. It appears that previously an order under section 7A of the said Act was passed and recoveries effected together with interest in a sum of Rs.2,80,86,922/-. By the order under section 14B of the said Act, penalty by way of damages has been imposed in a sum of Rs.2,42,61,729/- for failure of the petitioner to Page 3 of 4 J.V.Salunke,PS 10-WP.6418.2022 make remittances of provident fund dues for the period 01/1996 to 12/2005 as mentioned in Annexure 'A' of the notice dated 4th February 2019.
9. From the order passed under section 7Q, we find that interest has been charged for delayed payment for the same period, i.e., 01/1996 to 12/2005 as mentioned in Annexure 'A' of the notice dated 4th February 2019.
10. For the purpose of extension of ad-interim relief, we are of the prima facie view that though the two orders dated 9th November 2020 have been issued with separate memo numbers, the second order cannot be said to be an independent order but is a follow up of the order passed by the Assistant Provident Fund Commissioner under section 14B of the said Act.
11. In such view of the matter, we are of the considered opinion that the ad-interim relief granted earlier should be continued at least till hearing of the stay application filed by the petitioner before the CGIT-2 in connection with its appeal. Since we are informed that the CGIT-2 is likely to hear the stay application sometime in the second half of December 2022, we extend the ad-interim relief till the end of January 2023 or until further orders, whichever is earlier.
12. List the writ petition on 5th January 2023. We encourage the CGIT-2 to pass appropriate orders on the stay application and the appeal as well, if possible, by the returnable date so that this writ petition works itself out.
(MADHAV J. JAMDAR, J.) (CHIEF JUSTICE)
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J.V.Salunke,PS