Writ Petition No. 327 of 2003 · Uttarakhand High Court · 2009

averment to this fact in paragraph 8 to the writ petition. Now, under Section 7-A of the Act, the Regional Provident Fund Commissioner had determined the dues payable by the petitioner under the Act, which are to the tune of Rs. 1,08,80,530/- (One Crore Eight Laces Eighty Thousand Five Hundred and Thirty) to be payable by the petitioner for a certain period under reference before him. This order dated 28.7.1999 (Annexure No. 8 to the writ petition) passed under Section 7-A of the Act was challenged by way of a statutory review petition under Section 7-B of the Act. This review petition of the petitioner was also rejected vide order dated 9.4.2003. The main contention of the petitioner before this Court is that although the petitioner may have a liability under the Act, but it has not been determined by the Authorities as to how many workers were actually working and what was their actual strength? From a perusal of the order impugned in the petition, however, it appears that the petitioner himself had made no worthwhile effort under the proceeding initiated under the Act to apprise the Authorities under the Act as to what are the actual number of workers working under the (cid:147)Job Contractors(cid:148). The Regional Provident Fund Commission in its order dated 28.7.1999 passed under Section 7-A has stated as follows : (cid:147)In view of the facts given above, I proceed to determine the dues payable by establishment in respect of contractor(cid:146)s employees the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and Schemes framed thereunder for the period May, 95 of January, 96 on the basis of report of Sri Sunil Kumar, Enforcement Officer dated 26.4.99 in which he has reported total amount paid to the respective contractors. No other details of Salary/ wages were furnished to him nor during 7-A proceedings. This matter is going on since long and establishment has failed to provide required information of salaries/ wages paid to the contractors during 7-A enquiry as well.(cid:148) Therefore, Regional Provident Fund Commissioner has made certain calculations based on the available material and fixed the liability on the petitioner as has already been referred above. Aggrieved by the said order, the petitioner preferred a revision, which has also been rejected as it did not find favour with the reviewing authority. Be that as it may, a preliminary objection has been raised in the counter affidavit, which has been filed on behalf of the Assistant Provident Fund commissioner, stating that the petitioner has an alternative remedy provident under Section 71 of the Act which has not been availed by the petitioner. In reply to the counter affidavit, the petitioner has stated in its rejoinder affidavit that apart from the two orders passed by the concerned authorities under Section 7-A and 7-B of the Act, he has also challenged the order dated 28/29.4.2003, which is not a appealable order. The fact of the matter is that the order dated 28/29.4.2003 is a consequent order to the orders dated 28.7.1999 and 9.4.2003 (contained as Annexure No. 8 and 12 to the writ petition respectively). The order dated 28/29.4.2003 is an order, which has been passed under Section 8 F of the Act by the concerned authorities after the establishment has failed to pay its dues. By the said order, the Bank Accounts of certain officers have been attached, in other words admittedly the concerned authorities has passed an order having an authority to pass an order under Section 8F of he Act. What is relevant here is that the order dated 28/29.4.2003 is an order consequent to the two orders, which have been passed under Section 7-A and 7-B of the Act, which are appealable orders, therefore, merely because the order dated 28/29.4.2003 is not an appealable order, will not be a ground for the petitioner not to avail the alternative remedy prescribed under the Act. The contention of the petitioner also is that the order passed in the review petition i.e. order dated

9.4.2003 (Annexure No. 12 to the writ petition) is not an appealable order. This argument of the petitioner is totally misconceived. It has been clearly provided under Section 7-I of the Act that in case a review petition is rejected, then an appeal can be filed against the order passed under Section 7-A of the Act. Therefore, the contention of the petitioner that he does not have a remedy by way of an appeal is totally misconceived. This fact is further evident from perusal of Section 7I read with Section 7B (5) of the Act. Both the aforesaid provisions are reproduced as under: (cid:147)7I. Appeals to Tribunal-(1) Any person aggrieved b a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub-section (4) of section 1, or section 3, or sub- section (1) of Section 7A, or section 7B [except an order rejecting an application for review referred to in sub-section (5) thereof], or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order. (2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed. 7B. Review of orders passed under section 7A- (5) No appeal shall lie against the order of the officer rejecting an application for review, but an appeal under this Act shall lie against an order passed under review as if the order passed under review were the original order passed by him under section 7A.(cid:148) Therefore, in view of the alternative remedy for the petition by way of an appeal before the appellate Tribunal, which is not only a statutory remedy but it is also an efficacious remedy, this Court finds no good grounds to interfere in the present writ petition. The writ petition is, therefore, dismissed. No order as to costs. Rathour (Sudhanshu Dhulia, J.)

22.5.2009