Case: Rajpath Motors Vs Assistant Provident Fund Commissioner and Anr.. High Court of Orissa (India)

JudgesN. Prusty, J.
IssueConstitution of India - Articles 226, 227
CitationCLT 2007 407, 2008 (I) LLJ 361 Ori, 2007 (2) OLR 492
Judgement DateJuly 12, 2007
CourtHigh Court of Orissa (India)

Order:

N. Prusty, J.

  1. The petitioner Rajpath Motors has filed this writ petition, inter alia, challenging the order passed by the Assistant Provident Fund Commissioner dated August 29, 2006 (Annexure-9) in a proceeding for review under Section 7-B of the Employees' Provident Funds and Miscellaneous Provisions Act 1952 (hereinafter referred to as "the Act") as well as Original order dated June 9,2006 (Annexure-6) passed in a proceeding under Section 7-A of the Act.

  2. Heard Debasis Das, learned Counsel for the petitioner, P. K. Mishra, learned Counsel for opposite party No. 1 and D. P. Mohanty, learned senior advocate for opposite party No. 2.

  3. As it appears vide order dated June 9, 2006 (Annexure-6), the Assistant Provident Fund Commissioner, Orissa, Bhubaneswar, passed his final order in a proceeding initiated against the present petitioner under Section 7A of the Act and directed the petitioner to deposit Rs. 40,494/- towards E.P.F. dues and Rs. 23,553 towards interest @ 12% per annum, in respective Account, within a period of fifteen days from the date of receipt of the award.

  4. The petitioner instead of filing an appeal challenging the order passed by the concerned authority under Section 7-A of the Act, chose to file a Review Application under Section 7B of the Act on June 21, 2006 before the selfsame authority for reviewing the order dated June 9, 2006 disclosing certain subsequent developments in the matter, which is said to be not within the knowledge of the petitioner during the pendency of the 7-A proceeding or at the subsequent stages of the proceeding when the matter was being heard by the concerned authority. Das, learned Counsel appearing on behalf of the petitioner submits that since a final order was passed in the review petition, rejecting the prayer for review, is not an appealable order, the petitioner having no alternative remedy approached this Court by way of filing this writ petition. As such the writ petition is maintainable and the same should be' considered and disposed of on merit.

  5. Mishra, learned Counsel appearing on behalf of the Assistant Provident Fund Commissioner/opposite party No. 1 in support; of the contentions of the learned Counsel for the petitioner with regard to the maintainability of the writ petition submits that, since the statute provides that when a review application under Section 7-B of the Act is rejected by the; authority, the order is not an appealable order, the writ petition filed by the petitioner is very much maintainable and this Court can hear and dispose of the matter on its own merit.

  6. Mohanty, learned senior advocate' appearing on behalf of opposite party No. 2 submits that even though the order passed by the officer rejecting an application for review, is not an appealable order, since the order passed ( in the proceeding under Section 7-A of the Act remains in full force and effect, which is an appealable one, the petitioner ought to have approached the appellate Authority challenging the order passed in 7A proceeding, instead of approaching this Court. Scope for interference in an appeal is much wider than in application under Articles 226 and 227 of the Constitution and all points taken in this writ petition could have been taken in the appeal. This ground has also been taken by opposite party No. 2 in his Counter Affidavit at paragraphs and 5.

  7. In support of his contention, Das, learned Counsel cited a decision of this Court in the case of Payal Engineers and Anr. v. Assistant Provident Fund Commissioner (C) and Another in 2005 (1) OLR 413, whereby the preliminary objection raised by the learned Counsel for the opposite parties to the effect that when there is an alternative remedy for filing of an appeal is available, the writ petition is not maintainable, was rejected and the plea advanced by the petitioner that where "the order is palpably illegal and an apparent error has been committed apparent on the face of records for which the petitioners should not be directed to file an appeal at Delhi, as such direction would cause irreparable loss and harassment to them" Para-2 of the order, was accepted and the matter was decided on its merit by allowing the writ petition as well as directing the Assistant Provident Fund Commissioner to dispose of the case No. 7A/02/2003 de novo after hearing the petitioner strictly in consonance with law.

  8. This decision shall not help the present petitioner in any manner since that...

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