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Dina Nath Public School Principal ... vs Assistant Provident Fund Commissioner on 23 March, 2021

Bench: D.Y. Chandrachud, M.R. Shah, Sanjiv Khanna

     CA 1053/2021
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                                            IN THE SUPREME COURT OF INDIA
                                             CIVIL APPELLATE JURISDICTION

                                               Civil Appeal No 1053 of 2021
                                           (Arising out of SLP (C) No 2968 of 2017)



                      Dina Nath Public School                                           Appellant(s)
                      Through Principal


                                                       Versus


                      Assistant Provident Fund Commissioner                             Respondent(s)
                      and Others




                                                      ORDER

1 Leave granted.

2 This appeal has arisen from a judgment dated 21 November 2016 of a Division Bench of the High Court of Delhi. The Delhi High Court, affirming the order of the Single Judge, held that it had territorial jurisdiction to entertain the writ petition as the impugned order was passed by the Employees Provident Fund Appellate Tribunal 1 situated in Delhi. However, the court affirmed the finding of the Single Judge on forum non conveniens. The basis of this finding is that the petitioner is situated in Faridabad in Haryana and the proceedings under the Employees Provident Fund and Miscellaneous Signature Not Verified Digitally signed by 1 “EPFAT” Chetan Kumar Date: 2021.03.27 12:25:55 IST Reason: CA 1053/2021 2 Provisions Act 19522 were initiated in that State. The only reason for invoking the jurisdiction of the Delhi High Court was on account of the fact that the EPFAT was situated in Delhi. Thus, the dismissal of the writ petition was upheld .

3 The facts, insofar as they are material for the disposal of this appeal, lie in a narrow compass. The first respondent issued a notice to show cause to the appellant on 20 July 2010 to explain why the provisions of the EPF Act would not be applicable to it. An order was passed on 21 July 2010 in regard to the applicability of the EPF Act to the appellant. The order was assailed by the appellant before the EPFAT, Delhi in ATA No 620(16) of 2010. In December 2010, the first respondent issued a notice under Section 7A of the EPF Act to commence a statutory enquiry against the appellant. The EPFAT dismissed the appeal on 16 September 2011. On 13 October 2011, the appellant voluntarily applied for coverage under the EPF Act before the Provident Fund Commissioner, Faridabad on the ground that its employee strength had reached 20 in number with effect from 1 September 2011. Aggrieved by the order dated 16 September 2011 dismissing the appeal, the appellant filed a writ petition, Writ Petition (Civil) No 592 of 2012, which is pending before the Delhi High Court.

4 On 29 October 2012, the first respondent passed an order under Section 7A, thereby deciding the issue as regards the applicability of the EPF Act. 2 “EPF Act” CA 1053/2021 3 The appellant filed an appeal 3 before the EPFAT on 1 January 2013 to challenge the order of the first respondent dated 29 October 2012. On 28 January 2013, the Single Judge of the High Court decided a batch of matters including Writ Petition (Civil) No 4795 of 2010 and Writ Petition (Civil) No 592 of 2012 deciding the issue of territorial jurisdiction. Subsequently, it appears that Writ Petition (Civil) No 592 of 2012 was adjourned sine die by the Single Judge till the disposal of ATA No 07(16) 2013 by the EPFAT. On 18 April 2016, the EPFAT Delhi dismissed the appeal. In order to challenge the order of the EPFAT, the appellant filed Writ Petition (Civil) No 5497 of 2016. The Single Judge by an order dated 9 September 2016, dismissed the writ petition holding that the Delhi High Court was not a convenient forum to determine the lis between the parties. The order of the Single Judge has been confirmed in appeal by the Division Bench.

5 In the facts of the present case, as they emerged before the Delhi High Court, it is apparent that the appellant, Dina Nath Public School, is situated in Faridabad, Haryana. Likewise, the second and third respondents are also situated in Faridabad. During the course of the hearing, learned counsel appearing on behalf of the third respondent, who is a former employee of the school, also stated that it would be more convenient for her to pursue the proceedings before the Delhi High Court as opposed to the Punjab & Haryana High Court at Chandigarh. Be that as it may, having regard to the fact that the parties are all situated at Faridabad and since the Delhi High Court has, as a matter of principle followed its own earlier decision and come to the 3 ATA 07 (16) of 2013 CA 1053/2021 4 conclusion that it had territorial jurisdiction, but declined to entertain the writ petition only on the ground of forum non-conveniens, we are inclined to set aside the impugned order and to restore the proceedings back to the Delhi High Court for disposal.

6 We accordingly allow the appeal and set aside the impugned order of the Division Bench dated 21 November 2016. As a consequence, the writ petition filed before the Single Judge, namely, Writ Petition (Civil) No 5497 of 2016, shall stand restored to the file for disposal on merits. 7 In the meantime, the Court has been apprised of the fact that the second respondent has instituted Writ Petition (Civil) No 7048 of 2016 before the Delhi High Court. In the circumstance, Writ Petition (Civil) No 7048 of 2016 which was filed before the Delhi High Court by the second respondent shall also stand restored to the file of the Single Judge for disposal together with companion writ petition noted above.

8 Mr Shantwanu Singh, learned counsel appearing on behalf of the second respondent states that the writ petition which was filed before the Punjab & Haryana High Court, CWP No 6100 of 2017, shall be withdrawn before that High Court so as to enable the second respondent to pursue the writ petition which has been filed before the Delhi High Court.

5 9 We request the learned Single Judge of the Delhi High Court to dispose of the pending writ petitions expeditiously, preferably within a period of four months consistent with the exigencies of work.

10 The appeal is accordingly disposed of.

11 Pending applications, if any, stand disposed of.

….....…...….......………………........J. [Dr Dhananjaya Y Chandrachud] ..…....…........……………….…........J. [M R Shah] ..…....…........……………….…........J. [Sanjiv Khanna] New Delhi;

          March 23, 2021
          CKB
CA 1053/2021
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ITEM NO.10     Court 5 (Video Conferencing)               SECTION XIV

               S U P R E M E C O U R T O F         I N D I A
                       RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No.2968/2017 (Arising out of impugned final judgment and order dated 21-11-2016 in LPA No.645/2016 passed by the High Court Of Delhi at New Delhi) DINA NATH PUBLIC SCHOOL PRINCIPAL SECRETARY Petitioner(s) VERSUS ASSISTANT PROVIDENT FUND COMMISSIONER & ORS. Respondent(s) Date : 23-03-2021 This petition was called on for hearing today. CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH HON'BLE MR. JUSTICE SANJIV KHANNA For Petitioner(s) Mr. Mohak Bhadana, Adv.

Mrs. Priya Puri, AOR Mr. Ranjay Dubey, Adv. Yati Sharma, Adv.

Mr. S.K. Puri, Adv.

For Respondent(s) Mr. Abhishek Vikas, AOR Mr. Ashok Kumar Singh, AOR Mr. Shantwanu Singh, Adv. Mr. Abhishek Paruthi, Adv. Ms. Pragya Singh, Adv.

Ms. Nidhi, AOR Ms. Kasturika Kaumudi, Adv. Mr. Jaydip Pati, Adv.

UPON hearing the counsel the Court made the following O R D E R 1 Leave granted.

2 The appeal is disposed of in terms of the signed order.

3 Pending applications, if any, stand disposed of.

               (CHETAN KUMAR)                     (ANITA RANI AHUJA)
                A.R.-cum-P.S.                     ASSISTANT REGISTRAR
                        (Signed order is placed on the file)