M.D.Spl.58, M.Kallupatti Primary Agricultural Co-operative Society Ltd.,Represented v. The Assistant Provident Fund Commissioner

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 14.10.2011CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.(MD)No.7056 of 2011 & M.P.(MD).Nos.1 & 2 of 2011M.D.Spl.58, M.Kallupatti Primary Agricultural Co-operative Society Ltd.,Represented through its Secretary, Mathiapannur Post, Pudupatti Via, Thirumangalam Taluk, Madurai District...Petitioner Vs.The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Regional Office, Lady Doak College Road, Chokkikulam, Madurai-625 002. .. Respondents PRAYER:Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorarified Mandamus callingfor the records relating to the impugned order passed by the respondentin TN/MDU/29115./Enf./Circle 17/17055/2010, dated 14.12.2010 andconsequent order passed in Review Petition in M-7/TN/29115/Enf.C/RO/201,dated 11.05.2011 and quash the same and consequently direct therespondent to hear in the review petition, dated 03.05.2011 filed by thepetitioner under Section 7 B of the EPF Act on merits and in accordancewith law. For Petitioner :Mr.V.O.S.KalaiselvamFor Respondent :Mr.G.R.Swaminathan ORDERThe petitioner has come forward to challenge the order passed under Section 7-A of the Employees' Provident Funds and MiscellaneousProvisions Act, 1952 (hereinafter referred as the Act) demanding paymentfrom the petitioner for the period from 11/99 to 05/2010 total amount toRs.2,53,345/- as due and payable to the department. The petitioner fileda review application under Section 7-B of the Act before the sameauthority. Since the review was filed belatedly, the authority refused toentertain the review as he has no power in terms of Section 7(B) readwith paragraph 79-A of the EPF Scheme. Instead of filing an appeal under Section 7-I of the Act before the Tribunal, the petitioner has moved this Court with the present writ petition.

Notice regarding admission was ordered on 30.06.2011. Pendingnotice, this Court granted interim stay. On notice from this Court, Mr.G.R.Swaminathan, entered appearance for the respondent.

When an Act provides for appeal remedy, the aggrieved party hasto exercise the power under the Act and the writ jurisdiction cannot beused to forestall the appeal remedy provided under the Act. It isnecessary to refer to the Judgment of the Honourable Supreme Court in RAJKUMAR SHIVHARE v. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT AND https://hcservices.ecourts.gov.in/hcservices/ 2ANOTHER reported in 2010 4 SCC 772, wherein it was held that even thoughthe appellate remedy provides for a conditional pre deposit that byitself cannot be a ground to reject that forum and one can move the highCourt under Article 226 of the constitution of India. In paragraphs 30 to32 of the said judgment it has been held as follows; "30. The argument that writ jurisdiction of the HighCourt under Article 226 of the Constitution is a basicfeature of the Constitution and cannot be ousted byparliamentary legislation is far too fundamental to bequestioned especially after the judgment of the Constitution Bench of this Court in L.Chandra Kumar v.Union of India. However, that does not answer thequestion of maintainability of a writ petition whichseeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal.31. When a statutory forum is created by law forredressal of grievance and that too in a fiscal statute,a writ petition should not be entertained ignoring thestatutory dispensation. In this case the High Court is astatutory forum of appeal on a question of law. Thatshould not be abdicated and given a go-by a litigant forinvoking the forum of judicial review of the High Courtunder writ jurisdiction. The High Court, with greatrespect, fell into a manifest error by not appreciatingthis aspect of the matter. It has however dismissed thewrit petition on the ground of lack of territorialjurisdiction.32. No reason could be assigned by the appellant'scounsel to demonstrate why the appellate jurisdiction ofthe High Court under Section 35 of FEMA does not providean efficacious remedy. In fact there could hardly be anyreason since the High Court itself is the appellateforum. "