Gujarat High Court
Gujarat Urja Vikas Nigam Limited vs Regional Provident Fund Commissioner, ... on 26 February, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/12268/2017 ORDER
IN` THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12268 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12269 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12270 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12271 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12272 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12273 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12274 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12275 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12276 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12280 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12281 of 2017
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GUJARAT URJA VIKAS NIGAM LIMITED Versus REGIONAL PROVIDENT FUND COMMISSIONER, RAJKOT ========================================================= Appearance:
MR KM PATEL, SENIOR ADVOCATE with MR HAMESH C NAIDU for the PETITIONER(s) No. 1 DS AFF.NOT FILED (N) for the RESPONDENT(s) No. 1,2 MS E.SHAILAJA for the RESPONDENT(s) No. 1,2 NOTICE SERVED BY DS for the RESPONDENT(s) No. 1,2 ========================================================= CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 26/02/2018 ORAL COMMON ORDER
1. This group of petitions are filed under Articles 226 of the Page 1 of 11 C/SCA/12268/2017 ORDER Constitution of India for the purpose of seeking for the following reliefs: "27(A) Your Lordship may be pleased to admit and allow this petition;
(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction which the Hon'ble Court may deem fit, just and proper, quashing and setting aside the order dated 09.11.2011 passed by the Regional Provident Fund CommissionerII Rajkot bearing No. GJ/920/D/SRO/RJT/Dmgs/237 for the reasons stated in the Memo of the petition;
(C ) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction which the Hon'ble Court may deem fit, just and proper, quashing and setting aside the impugned notice dated 05.06.2017 issued by Assistant Provident Fund Commissioner, Rajkot directing the petitioner to deposit interest under Section 7Q of the Act; (D) Pending the admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to stay the execution, implementation and operation of notice dated 05.06.2017 issued by Assistant Provident Fund Commissioner, Rajkot;
(E) Grant such other and further relief/s which your lordship deem just, fit and proper in the interest of justice;"
2. These petitions are taken up for hearing in which learned Senior Advocate Mr. K.M. Patel is appearing with Mr. Hamesh Naidu, who is representing the petitioner firm and respondents nos. 1 and 2 are being represented by learned advocate Ms. E. Shailaja. Page 2 of 11 C/SCA/12268/2017 ORDER
3. The premise on which the present petitions are brought before the Court is that on 16.11.1995 the Government of India introduced Employees Pension Scheme, 1995 with effect from 16.11.1995 (EPS
95) in place of earlier scheme - FPS71 Scheme. This scheme was published in the gazette on 16.11.1995. In response to this, it is the case of the petitioner firm that the Vadodara Regional Provident Fund Commissioner, in fact intimated GEB as then was about EPS95 Scheme vide communication dated 01.12.1995 since it was introduced for the first time in the country, the complexity with respect to the remittance was to be understood and upon such process, the Regional Provident Fund Commissioner, Vadodara intimated GEB on 30.01.1996 that an application could be made for grant of exemption from newly introduced Scheme i.e. EPS95. On behalf of the RPFC (Exemption) Gujarat State in the daily newspaper, a public notice was also issued on 28.01.2016 and the applications were invited from the interested establishment for the purpose of grant of exemption from this Scheme of EPS95. Pursuant to such, the erstwhile Board applied for the grant of exemption from the aforesaid EPS95 Scheme with the aid of Section 17(1) (A) of the Employees' Provident Funds and Miscellaneous Provisions Act (hereinafter referred to as the "Act"). Even such application was duly recommended by RPFC, Vadodara as well as RPFC, Ahmedabad and Central Provided Fund, New Delhi. Upon such recommendation, it was forwarded finally to the Ministry of Labour, Government of India Page 3 of 11 C/SCA/12268/2017 ORDER for its approval. It is the case of the petitioner that after almost a period of five years 9 months, the Ministry of Labour, rejected the Board's exemption application, as a result of which the respondent authorities passed an order levying damages on the petitioner firm in the months of June and July, 2004. Such orders were since appeal able and assailable by way of appeal before the Employees' Provident Funds Appellate Tribunal, New Delhi (hereinafter referred to as the "Tribunal") wherein vide order dated 14.07.2010, the said appeals came to be dismissed by the learned Tribunal. Resultantly, the petitioner firm is constrained to approach this Court by way of Special Civil Applications which were numbered as Special Civil Application No. 15124 of 2010 to 15134 of 2010 on 20.10.2010. This Court was pleased to allow the said Special Civil Applications vide order dated 28.03.2011 and consequently directed the Provident Fund authority to decide the matter afresh and in response to such order of this Court, the petitioner firm made a detailed representation on 21.04.2011. On 09.11.2011, the respondent authority passed the impugned order which came to be received by the petitioner on 17.11.2011. As a result of this, being aggrieved and dissatisfied with the said order, the petitioner firm had brought this group of petitions before this Court.
3.1. On 07.12.2011, initially this Court granted interim relief, but later on, this Court vide order dated 12.08.2016 was pleased to Page 4 of 11 C/SCA/12268/2017 ORDER disposed of the petitions and remanded the matter to the authority concerned. Pursuant to the said order passed by this Court, as stated above, the petitioner preferred the appeals before the learned Tribunal on 22.12.2016 and the learned Tribunal had entertained the appeals and passed an order on 16.01.2017 restraining the respondent authority from recovering the damages under Section 14B of the Act. However, simultaneously, to the surprise of the petitioner - firm on 05.06.2017, the Assistant Provident Fund Commissioner, Rajkot issued notice demanding the interest under the provisions of Section7Q of the Act and it is this issuance of notice, has caused the petitioner to rush down to this Court by way of this group of petitions. As the learned Tribunal is seized with the main issue right from December, 2016, learned Senior Advocate Mr. Patel has at the outset submitted that during the pendency of the proceedings, to the surprise of the petitioner, the proceedings were initiated under Section7Q of the Act for which the petitioner had no opportunity to represent.
3.2. Learned Senior Advocate Mr. Patel has submitted that looking to the complexity of the issue, even the learned Tribunal has granted stay against recovery of the damages in respect of Section 14B of the Act. Hence, the question of recovery of interest under Section 7Q of the Act would not arise. Learned Senior Advocate Mr. Patel has further contended that the petitioner - firm has already paid an Page 5 of 11 C/SCA/12268/2017 ORDER amount of Rs.2,33,509/ as damages and pursuant to the earlier impugned order passed by the Rajkot (O&M) Circle Office, the balance amount was to be paid to the extent of Rs.52,88,451/ and the learned Tribunal has protected vide order dated 16.01.2017. Further learned Senior Advocate Mr. Patel has drawn attention to one paragraph contained in order dated 09.11.2011, and has submitted that the third issue which was brought to the notice of the Enforcement Officers for the first time at the inquiry stage, and submitted that the interest earned over the amount of past accumulations was not transferred along with the pension contribution on 25.01.2002. Now this was the circumstance which was brought to the notice of the petitioner - firm for the first time. Learned Senior Advocate has submitted that an amount of Rs.23,01,22,852/ were already paid in the Pension account of RPFC, Vadodara which is an undisputed fact and therefore, no further amount can be leviable by resorting to Section 7Q of the Act. Further be that as it may, learned Senior Advocate Mr. Patel has contended that if ultimately the liability is crystallized, the petitioner firm has to meet with the demand and has submitted that the petitioner is an establishment which is not going to run away from the responsibility even if crystallized finally particularly when huge amount has been so far paid by the petitioner. Hence a request is made before this Court by the petitioner that till the main appeals could be decided by the learned Tribunal, some interim protection be granted with respect to Page 6 of 11 C/SCA/12268/2017 ORDER the demand under Section 7Q of the Act qua issuance of the notice dated 05.06.2017.
3.3. Learned Senior Advocate Mr. Patel has submitted that even assuming for the time being that such steps can be taken then also would deviate finalization of the proceedings and the petitioner firm is not going to evade with the responsibility if ultimately finalized. In addition to such huge amount as indicated above, having already deposited, now to saddle the petitioner - firm with further liability under Section 7Q of the Act is the subject matter of serious debate and would like to agitate the same before the learned Tribunal where the main appeal proceedings are pending. Learned Senior Advocate Mr. Patel has further contended that there is absolutely no intention of the petitioner to drag on the issue any further and would ensure co operation to the learned Tribunal to decide the appeals within whatever time this Court deems it proper to fix. Learned Senior Advocate Mr. Patel in this context has already prepared an undertakings , a copies whereof are served to learned advocate for the respondents on 23.02.2018 and has undertaken before this Court specifically on oath in the premise in para 2 and 3 of such undertakings dated 23.02.2018. Though it might be in hurried form prepared but the undertakings and agreement to deposit the amount of interest is also forming part of the impugned communication dated 05.06.2017 if finally concluded by the learned Tribunal. As a result of Page 7 of 11 C/SCA/12268/2017 ORDER this, such undertakings are taken on record and ultimately, a request which has been made by learned Senior Advocate Mr. Patel is that the main appeal proceedings may be directed to be disposed of within some time bound schedule.
4. To meet with such submissions made by learned Senior Advocate Mr. Patel, learned advocate Ms. Shailaja on behalf of the respondents has initially resisted and opposed the said submissions and has contended that some relaxation if further be provided again, the petitioner firm will consume time and will drag on ultimately the responsibility. Learned advocate Ms. Shailaja has submitted that on number of occasions opportunities were given and it is only after such exhaustive opportunity having been given the department has generated this liability which is lawfully payable by the petitioner. However, she has candidly submitted that the seizable amount is already been deposited which is not in dispute. Learned advocate Ms. Shailaja has further contended that some sort of security be provided at the behest of the petitioner so that this liability may not be evaded after finalization of the proceedings against the petitioner. But when the overall situation is visualized from the record, a broad consensus is arrived at and both the learned advocates under the respective instructions from their respective clients have stated broadly that if some time schedule is provided, the same would take care of the situation for the time being and has rightly agreed that the Page 8 of 11 C/SCA/12268/2017 ORDER undertakings would be taken on record and shall be abided by the petitioner. Though the undertakings are not exhaustive as found by the Court, learned Senior Advocate Mr. Patel has clarified that these undertakings shall be with respect to the appeals proceedings which are pending including the proceedings with respect to issuance of notice dated 05.06.2017 under Section 7Q of the Act.
5. With this broad concurrence after some deliberations on record of the present petition, the following directions are considered it appropriate to meet the ends of justice while disposing of the petitions at this stage, particularly, when the main appellate proceedings are ceased by the learned Tribunal undisputedly ; 5.1. The main appeals which are pending before the learned Tribunal are directed to be decided and disposed of in accordance with law on its own merits after considering the material brought before it and after affording appropriate opportunity to the parties concerned.
5.2. The pleadings if to be completed in the main appeals Page 9 of 11 C/SCA/12268/2017 ORDER proceedings shall be completed by both the respective sides within a period of one month from today and both the sides shall cooperate with the appeals proceedings to the learned Tribunal so as to maintain time schedule prescribed by this Court and shall not ask any unnecessary adjournments. 5.3. During the appeals proceedings, the undertakings which are brought before this Court and which are taken on record, shall continue to operate till the final disposal of the main appeal proceedings and the petitioner shall abide by the terms of the undertakings dated 23.02.2018. It is clearly understood between the parties that these undertakings are in respect of both the appeal proceedings which are pending before the learned Tribunal and the adjudication of the impugned notice of demand under Section 7Q of the Act dated 05.06.2017.
5.4. It is needless to clarify that breach of such undertakings shall entail serious consequence followed in accordance with law.
5.5. Till the impugned appeals are decided by the learned Tribunal as agreed, in view of the aforesaid terms of agreement, Page 10 of 11 C/SCA/12268/2017 ORDER the respondent authorities shall not insists upon any preceptive coercive action under the guise of impugned notice dated 05.06.2017, The learned Tribunal will examine the issue of Section7Q of the Act as well.
5.6. It is further clarified that this Court has not expressed any opinion with regard to the merit or demerit of the stand of both the respective sides and it would be open for the learned Tribunal to hear and dispose of the appeals independently on its own merits without being influenced by either present order or the previous order which is impugned in the present petitions.
6. With the aforesaid observations and directions, upon broad consensus of both the learned advocates, this group of petitions are disposed of. Notice is discharged with no order as to costs. Interim relief if any stands vacated.
(A.J. SHASTRI ,J) /phalguni/ Page 11 of 11