Prakasham District v. PET IT IONER AND 1 The Assistant P.F.Commissioner, Regional Officer, Guntur, Guntur

T HE HONOURABL E SRI JUST ICE B.SESHASAYANA REDDY WRIT PET IT ION NO. 17172 OF 2008 ORDER:

This writ petition has been filed by T.Venkateswarlu assailing the proceedings of the Assistant Provident Fund, Commissioner, Regional Office, Guntur-1 st Respondent issued under Section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952.

The petitioner is proprietor of Mohan Talkies, Kandukuru, Prakasham District. Proceedings have been initiated under Section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. After due enquiry, the petitioner has been directed to pay Rs. 3,17,914-85 under proceedings No. AP/RO/GNT/Comp-II/PRM- 1/19222/7A/Order/2008/1718, dated 31-3-2008.

It is the grievance of the petitioner that he was not given appropriate opportunity during the enquiry. For better appreciation of the grievance of the petitioner, paras 3 and 4 of the writ affidavit filed in support of the petition need to be noted and they are:- “ 3 . It is submitted that I am the proprietor of M/s Mohan Talkies, situated at Kandukuru, Prakasham District. It submitted the Mohan Talkies is Mini Theater and due to interest in the cine field petitioner is running the theater even though he is not getting any profits on the said theatre. It is submitted that there are four employees working in the theatre. It is submitted that unfortunately the theatre of the petitioner was brought under the purview of Employees Provident Fund Act with effect from 1-4-1990. It is submitted that the said action of the respondent is challenging by the petitioner since then. It is submitted that earlier when the respondent has conducted enquiry under Section 7A of the Act, but petitioner has not given proper opportunity and petitioner has approached this Hon’ble Court by filing a writ petition in W.P.No. 13323/93 and the said writ petition was disposed of with a direction to give opportunity.

It is further submit that in the mean while the respondent has initiated criminal action against the petitioner and petitioner has filed an appeal before this Hon’ble Court Crl.A.No. 667 of 2005 and batch and the said batch was disposed off by this Hon’ble Court on 19-7-2006 by remanding the matters to the 1st trial Court and also directed respondent to conduct fresh enquiry. It is submitted that as per the direction of this Hon’ble Court the respondent started fresh enquiry. It is submitted that the case was adjourned on several occasions by the 1st respondent. submitted It petitioner has attended for some times. It is further submitted that due to ill health of the petitioner he did not attended on final hearing date and as such, the 1st Respondent has passed the impugned order which is now under challenge”.

4. When this writ petition came up for admission, learned standing counsel appearing for Assistant Provident Fund Commissioner received notice on behalf of the respondents.

Heard learned counsel for the petitioner and learned standing counsel appearing for the respondents.

Learned counsel appearing for the petitioner submits that the petitioner establishment does not come within the purview of the provisions of Employees Provident Fund and Miscellaneous Provisions Act and therefore there is no obligation on the part of the petitioner to pay the amount demanded by the 1st respondent.

Learned standing counsel appearing for the respondent submits that the proceedings impugned in the writ petition came to be issued under Section 7-A of the Act and the said proceedings are appealable under Section 7(I) of the Employees Provident Fund and Miscellenaous Provisions Act, 1952 and therefore, the petitioner has to exhaust statutory remedy available under law.

I have gone through the proceedings issued by the Assistant Provident Fund Commissioner, Regional Office, Guntur. Enquiry before him went on for about two years. The petitioner entered appearance before the 1st respondent and made requests for adjournment. Subsequently, he failed to appear before the 1st respondent and thereupon the 1st respondent perused the record and pass the order impugned in the writ petition.

Indisputably the order impugned in the writ petition is appealable under Section 7(I) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952.

In that view of the matter, the petitioner has to work out statutory remedy available to him by way of an appeal before the competent authority.