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Orange Hotels And Restaurant Pvt. Ltd vs Regional Provident Fund ... on 18 March, 2024

Author: Sandeep V. Marne

Bench: Sandeep V. Marne

2024:BHC-OS:4731


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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         ORDINARY ORIGINAL CIVIL JURISDICTION

                                    Writ Petition (l) No.8899 of 2024

           M/s. Orange Hotels & Restaurant Pvt. Ltd.                ...     Petitioner
                v/s.
           Regional Provident Fund Commissioner-II                  ...       Respondent


           Ms Samiksha Kanani with Ms. Prasanna Pawar, for the Petitioner.

           Mr Gunjan Chaubey with Mr. Vinay Kate and Mr Ujjwal Kumar,
           advocate for respondent.

                                                   CORAM : SANDEEP V. MARNE, J.

DATE : 18th March 2024 P.C. :

Rule. Rule made returnable forthwith. With the consent of learned counsel appearing for the parties, the petition is taken up for hearing and disposal.

2. By this petition, the petitioner is aggrieved by the action of respondent of attaching the bank account under the provisions of Section 8F of the Employees Provident Fund Scheme and Miscellaneous Provisions Act, 1952 (for short referred as 'the Act') for recovery of amount of Rs.3,32,670.12 from its bank account for implementing the order dated 31st May 2023 passed under the provisions of Section 14B of the Act. Petitioner is also aggrieved by ::: Uploaded on - 20/03/2024 ::: Downloaded on - 21/03/2024 00:09:11 ::: 2/6 28 wpl 8899.24.docx the order dated 23rd January 2024 directing it to deposit amount assessed under Section 7Q of the Act by order dated 31 st May 2023 as a pre-condition for entertainment of the appeal.

3. It appears that a composite notice was issued by the respondent to the petitioner under provisions of Section 14B and 7Q of the Act on 4th October 2021. Consequent to said composite show-cause notice, two separate orders came to be passed by respondents on 31st May 2023. In an order passed under Section 14B of the Act, respondent assessed the amount of penal damages at Rs.21,63,138/-. By a separate order passed under Section 7Q of the Act, respondent assessed interest amount of Rs.10,38,306/-. However, it appears that immediately on receipt of the show-cause notice, petitioner paid the amount of interest of Rs.10,38,306/- to the respondent on account of which NIL amount was shown recoverable under the provisions of Section 7Q of the Act.

4. Petitioner preferred an appeal under Section 7-I of the Act before Central Government Industrial Tribunal (for short 'CGIT') challenging both the orders dated 31st May 2023. The Presiding Officer of CGIT-1 passed order dated 28th June 2024 holding that no appeal shall lie against the order passed under Section 7Q of the Act and, therefore, directed appellant to deposit the assessed interest under Section 7Q of the Act within one month. On the same date, the appeal came to be admitted. While passing order dated 28 th June ::: Uploaded on - 20/03/2024 ::: Downloaded on - 21/03/2024 00:09:11 ::: 3/6 28 wpl 8899.24.docx 2023, the learned Presiding Officer glossed over the fact that the amount of interest assessed under Section 7Q of the Act was already deposited by the petitioner with the Department immediately after receipt of the show-cause notice and, therefore, NIL amount was shown recoverable under order dated 31 st May 2023 passed under Section 7Q of the Act. Ignoring this position, the learned Presiding Officer directed petitioner to deposit the amount assessed under Section 7Q of the Act.

5. When the appeal came up for further consideration of CGIT on 23rd January 2024, the learned Presiding Officer observed that the petitioner failed to produce deposit challan to prove compliance of the order dated 28th June 2023.

6. It appears that petitioner has filed an application seeking stay of order dated 31st May 2023 passed under Section 14B of the Act. On account of error committed by the learned Presiding Officer in directing petitioner to pay amount assessed under Section 7Q of the Act, petitioner's application for stay on order passed under Section 14B of the Act apparently is not being decided by the Tribunal.

7. Taking disadvantage of this position, respondent proceeded to attach the bank accounts of the petitioner under Section 8F of the Act by issuing communication dated 16th January 2024 to petitioner's bank. It appears that an amount of Rs.3,32,670/- is recovered from the bank account of the petitioner.

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8. In my view, the direction issued by the learned Presiding Officer for deposit of amount assessed under Section 7Q of the Act is clearly erroneous since NIL amount is due to be paid under that order. The appeal of the petitioner is pending since June 2023 but the learned Tribunal has not decided the application for stay of order passed under Section 14B of the Act. It appears that when the said application was taken up for hearing on 23 rd January 2024, respondent had not filed reply to the said application. Thus, on one one hand, respondent did not file reply to the said application and simultaneously proceeded to attach petitioner's bank account.

9. Considering the above position, the direction of the learned Presiding Officer for deposit of amount assessed under Section 7Q of the Act is clearly unsustainable. Similarly, till the said application filed by the petitioner for stay of order passed under Section 14B of the Act is considered and decided by the Tribunal, the respondent is required to stay its hand and not take any precipitative steps. This is particularly in view of the fact that functioning of the CGIT is crippled on account of non-availability of regular Member. It is also required to be borne in mind that under Section 70 of the Act there is no requirement for making any pre-deposit for entertainment of appeal against order passed under Section 14 B of the Act.

10. In the circumstances, I proceed to pass the following order:

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(i) Order dated 28th June 2023 and 23rd January 2024 passed by the Presiding Officer, CGIT directing petitioner to deposit amount of interest assessed under Section 7Q of the Act is set aside.

(ii) The Tribunal is requested to consider and decide the application filed by the petitioner for stay of order passed under Section 14B of the Act on the next date of hearing.

(iii) Till the application of the petitioner for stay of order dated 31st May 2023 filed under Section 14B of the Act is decided, the respondent is restrained from taking any precipitative steps against the petitioner for execution of the said order and all steps taken so far in the form of issuance of order of attachment dated 16 th January 2024 as well as recovery of amount from the bank account of the petitioner shall be recalled. Accordingly, the order of attachment dated 16th January 2024 is set aside.

(iv) The respondent shall refund the entire amount recovered from the bank account of the petitioner in pursuance of order dated 16th January 2024.

11. With the above directions, the writ petition is disposed of. All questions on merits of petition are left open.

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                                               SANDEEP V. MARNE, J.
Lata Panjwani, P.S.




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