Gujarat High Court
Regional Provident Fund ... vs M/S Elysium Pharmaceuticals Limited on 30 November, 2022
Author: A.J.Desai
Bench: A.J.Desai
C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1261 of 2012
In R/SPECIAL CIVIL APPLICATION NO. 2015 of 2012
With
R/LETTERS PATENT APPEAL NO. 1262 of 2012
In
SPECIAL CIVIL APPLICATION NO. 2016 of 2012
With
R/LETTERS PATENT APPEAL NO. 1263 of 2012
In
SPECIAL CIVIL APPLICATION NO. 2014 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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REGIONAL PROVIDENT FUND COMMISSIONER-II & RECOVERY
OFFICER
Versus
M/S ELYSIUM PHARMACEUTICALS LIMITED
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Appearance:
MR CHAITANYA S JOSHI(5927) for the Appellant(s) No. 1
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C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022
KRISHAL H PATEL(9644) for the Respondent(s) No. 1
MR SAURIN A MEHTA(470) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 30/11/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present appeals, preferred under Clause 15 of Letters Patent, present appellant-original petitioner has challenged the order dated 13.03.2012 passed by learned Single Judge in captioned writ petitions, by which, learned Single Judge has upheld the order dated 07.09.2011 passed by Employees' Provident Fund Appellate Tribunal, New Delhi, Camp at Jaipur in ATA No. 426(5) 2010, ATA No. 155 (5) 2010 and ATA No.577(5) 2010, by which, the Tribunal has reduced the liability of the respondent at the rate of 22% including rate of interest annually, and therefore, present appellant has filed Civil Application (For Amendment) No.1 of 2021 in each of the appeal. The said applications were opposed by the present respondent and by a CAV IA order dated 21.01.2022 passed by the Division Bench of this Court (Coram: Hon'ble Mr. Justice N.V. Anjaria and Hon'ble Dr. Justice A.P. Thaker) in Civil Application (For Amendment) No.1 of 2021 in R/Letters Patent Appeal No.1261 of 2012 in R/Special Civil Application No.2015 Page 2 of 9 Downloaded on : Sat Dec 24 00:53:36 IST 2022 C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022 of 2012 with allied matters, dismissed the said applications and permitted the Authority to challenge the decision.
2. Today, when the matters are taken up for final hearing, the order dated 21.01.2022 passed by the Division Bench of this Court is placed before this Court.
3. We have gone through the order dated 21.01.2022 passed by the Division Bench of this Court, relying upon several decisions of the Hon'ble Apex Court, which are as under:
5. While the aspect of delay on both the considerations above could hardly be brushed aside, there is a weighty reason that would answer the prayer of the applicants inasmuch as the issue involved is no more res integra. The order impugned in the Special Civil Application was passed by Regional Provident Fund Commissioner & Recovery Officer in capacity of Adjudicating Authority under the provisions of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952.
It was in exercise of quasi judicial powers vested in it. The order of such kind and nature came to be challenged by the Regional Provident Fund Commissioner.
5.1 In Mohtesham Mohd. Ismail v. Special Director, Enforcement Directorate [(2007) 8 SCC 254], the Supreme Court dealt with the issue of maintainability of an appeal by the Special Director with reference to Sections 4, 9 and 54 of the Foreign Exchange Regulation Act, 1973. Special Director under the Act had preferred appeal before the High Court against order passed by the Foreign Exchange Regulation Appellate Board. There was a Notification providing for Page 3 of 9 Downloaded on : Sat Dec 24 00:53:36 IST 2022 C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022 the purpose of exercise of the Central Government, the officer must be specially authorised, however in absence of such Notification giving authorisation, it was held that the Director was not empowered to prefer appeal on behalf of the Central Government.
5.1.1 The underlying principle highlighted was that the Special Director was an Adjudicating Authority exercising quasi judicial power and in absence of specific power and authorisation, appeal could not have been preferred by him with such capacity. In that case, the question was raised before the High Court with regard to maintainability of appeal at the instance of the respondents on the premise that it was the Central Government who should prefer appeal and not the Adjudicating Authority itself. The High Court opined that as the respondent Special Director was appointed under the Act and in terms of the provisions under the Act he was authorised to enforce the statutory provisions, appeal at his instance would be maintainable.
5.1.2 The Supreme Court specifically ruled that Adjudicating Authority would not be entitled to prefer appeal.
"An adjudicating authority exercises a quasi-judicial power and discharges judicial functions. When its order had been set aside by the Board, ordinarily in absence of any power to prefer an appeal, it could not do so. The reasonings of the High Court that he had general power, in our opinion, is fallacious. For the purpose of exercising the functions of the Central Government, the officer concerned must be specifically authorised. Only when an officer is so specifically authorised, he can act on behalf of the Central Government and not otherwise. Only because an officer has been appointed for the purpose of acting in terms of the provisions of the Act, the same Page 4 of 9 Downloaded on : Sat Dec 24 00:53:36 IST 2022 C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022 would not by itself entitle an officer to discharge all or any of the functions of the Central Government. Even ordinarily a quasi-judicial authority cannot prefer an appeal being aggrieved by an dissatisfied with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Central Government, should act as an impartial tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board."
(para 13) 5.2 While holding as above, the Supreme Court referred to and relied on the decision of the Madras High Court in Director of Enforcement, Madras v. Rama Arangannal [AIR 1981 Madras 80] wherein the Madras High Court held thus, "4. On the question as to the maintainability of the appeal, it is seen that the Explanation to Section 54 of the Foreign Exchange Regulation Act 1973 treats only the Central Government as an aggrieved party for the purpose of filing an appeal to the High Court in respect of orders passed by the Foreign Exchange Regulation Appellate Board under that section. Therefore, only the Central Government can file and prosecute an appeal against the order of the Appellate Board, and not any other authority, In this case, the appeal has been filed by the Director of Enforcement, who Is the initial authority who passed the adjudication order against the respondents and whose order has been set aside by the Appellate Board on an appeal filed by them. Therefore, the Director of Enforcement Page 5 of 9 Downloaded on : Sat Dec 24 00:53:36 IST 2022 C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022 cannot be said to be aggrieved by the order of the Appellate Board merely because the Appellate Board has set its order of adjudication aside.
5.3 In District Collector v. Bagathi Krishna Rao [(2010) 6 SCC 427], the Apex Court laid down that appeal filed by the District Collector, Revenue Officer and District Forests Officer as against judgment in the suit would not be said to be maintainable and that the State of Andhra Pradesh was the necessary party. Decision of Mohtesham Mohd. Ismail (supra) was relied on by the High Court of Andhra Pradesh in Assistant Provident Fund Commissioner, Visakhapatnam v. Employees' Provident Fund Appellate Tribunal [2013 (2) LLJ 82], to rule that Assistant Provident Fund Commissioner could not have called in question the order passed in appeal which was against its own order.
5.4 The Bombay High Court in Assistant Provident Fund Commissioner v. Nirmitee Holidays Private Limited [2011 LLJ (2) 469] reiterate the proposition in the context of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 to hold that Assistant Provident Fund Commissioner could not have challenged the order passed by the Employees' Provident Fund Appellate Tribunal, New Delhi in an appeal against the order which had exercised quasi judicial function in passing the order under Section 7A of the Act.
5.5 All the above decisions came to be considered by this Court in Regional Provident Fund Commissioner v. Employees Provident Fund Appellate Tribunal [2014 (3) GLR 2646] to hold that Regional Provident Fund Commissioner lacked the locus standi to challenge the order passed by the Appellate Tribunal which interfered in the order passed by the Regional Provident Fund Commissioner, as the Regional Provident Fund Commissioner Page 6 of 9 Downloaded on : Sat Dec 24 00:53:36 IST 2022 C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022 functions in passing the order as Adjudicatory Authority under Section 14B of the Act. He could not be, therefore, treated as 'aggrieved person' within the concept of Section 7I of the Act.
5.5.1 The Court observed thus, "6. The contention that quasi judicial authority would not have locus to challenge the appellate order which considered its own order, has substance. The said principle is well recognised. Apart the said aspect, the very language of Section 14B signify that petitioner was only a delegatee of the Central Government while exercising powers under the said provision. As could be seen from Section 14-B of the Act, the powers exercisable under the said provision are conferred on Central Provident Fund Commissioner. In the alternative, such powers could be vested in an officer who may be specified by the Central Government in the Notification in Official Gazette. When the Central Government names the authority by way of Notification, such authority or officer acts as an delegatee of the Central Government. In such case, the repository of powers would be the Central Government. As a delegatee, the specified authority cannot claim an independent status."
5.5.2 Applying the principles in Mohtesham Mohd. Ismail (supra) it was finally laid down, "7.2 The above principle applies squarely in the present case. The petitioner-Regional Provident Fund Commissioner was an authority specified by the Page 7 of 9 Downloaded on : Sat Dec 24 00:53:36 IST 2022 C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022 Central Government and functioning accordingly for the purpose of exercising powers under Section 14B of the EPF Act could not have a locus standi to challenge the order of the EPF Appellate Tribunal, which considered his order. The petitioner Authority was an adjudicatory authority who exercised power of quasi judicial nature to determine the lis. He himself could not have claimed any lis in the subject matter. For the petitioner Authority, no locus standi is available to challenge the order of the Appellate Tribunal. The petitioner Authority cannot fall within the purview of "any person aggrieved" at the instance of whom appeal under Section 7I would lie."
5.5.3 The proposition of law was stated as under.
"8. A person may have a locus standi to challenge any decision of any Forum or Court of law, or he may not have such locus standi. A person may have locus standi without having any litigative interest. There is a subtle distinction between "to have a locus standi" and "to have a litigative interest". For instance, in the matters of Public interest litigation the petitioner is perceived in law to have been clothed with a locus standi eventhough, a public interest litigant cannot be said to have a litigative interest stricto sensu. The statutory Authority which functions as Adjudicating Authority and discharge quasi judicial powers, cannot claim for itself either a locus standi or a litigative interest to challenge the order of the Appellate Forum/ Court which considers its own order."Page 8 of 9 Downloaded on : Sat Dec 24 00:53:36 IST 2022
C/LPA/1261/2012 JUDGMENT DATED: 30/11/2022
4. By observing as stated hereinabove, ultimately following observations have been made by the Division Bench of this Court, which reads as under:
"6. Thus, the principle is that the authority which has adjudicated the lis and has passed the order in exercise of quasi judicial powers vested in it will not be entitled to challenge such order before the higher court. Neither such authority has locus standi nor it can said to have litigative interest to call in question the order where the dispute was adjudicated by itself exercising quasi judicial powers."
5. In view of the above facts and in our considered opinion, present appeals are not maintainable. Hence, present appeals stand dismissed. It is also pertinent to note that order is not carried further by the present appellant.
(A.J.DESAI, J) (NISHA M. THAKORE,J) SUYASH Page 9 of 9 Downloaded on : Sat Dec 24 00:53:36 IST 2022