Dismissed

Sanjiv Kumar v. Employees Provident Fund Organization through Its Regional Officer

Jharkhand HC9 Mar 2021LPA/78/2019

Case brief

AI extract

What is this about?

The High Court dismissed an intra-court appeal filed under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The bench held that discretionary writ jurisdiction was not appropriate when factual issues regarding establishment ownership required adjudication and alternative statutory remedies under sections 7(B) and 7(I) were available.

What did the court decide?

The intra-court appeal filed under L.P.A. No. 78 of 2019 was dismissed, upholding the order of the Single Judge that dismissed the writ petition.

Sanjiv Kumar Vs Employees Provident Fund… — Pension and Retirement Benefits | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 78 of 2019

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with I.A. No. 996 of 2020 with I.A. No. 997 of 2020

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Sanjiv Kumar, Aged about 54 years, Son of Late Manik Chand Chopra, resident of House No. 7, Ivy Lane, Ashiana Gardens, Sonari, P.O. and P.S. Sonari, TownJamshedpur, District – East Singhbhum

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..... Appellant/ Petitioner

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Versus

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1. Employees Provident Fund Organization, Sub Regional Office, Purulia Highway, Mango, P.O and P.S. Mango, Town-Jamshedpur, District – East Singhbhum through its Regional Officer.

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2. Assistant Provident Fund Commissioner, Sub Regional Office, Purulia Highway, Mango, P.O and P.S. Mango, Town-Jamshedpur, District – East Singhbhum.

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3. Enforcement Officer, Sub Regional Office, Purulia Highway, Mango, P.O and P.S. Mango, TownJamshedpur, District – East Singhbhum.

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4. Recovery Officer, Sub Regional Office, Purulia Highway, Mango, P.O and P.S. Mango, Town-Jamshedpur, District – East Singhbhum. ... .... Respondents

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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----For the Appellant : Mr. Shankar Lal Agarwal, Advocate For the Respondents : Mr. Rahul Saboo, Advocate

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Oral Judgment

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Order No. 05 : Dated 9^th March, 2021:

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With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.

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I.A. No. 997 of 2020

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2. The instant Interlocutory Application has been filed for substitution of name of present appellant-Sanjiv Kumar, in place of original writ petitioner-Manik Chand Chopra, who died on 18.06.2018.

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3. Heard learned counsel appearing for the parties.

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4. Learned counsel for the applicant has submitted that the original writ petitioner died on 18.06.2018, after passing of the order by the learned Single Judge and before filing of the present intra-court appeal, leaving behind the appellant as sole survivor.

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It has further been submitted that certain liability has been casted upon the original writ petitioner, father of the present applicant, as such, if the instant application is not allowed, the applicant shall suffer irreparable loss and injury.

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5. Learned counsel for the respondents is having no objection in substituting the name of the applicant in place of original writ petitioner.

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6. This Court, after having heard learned counsel for the parties and considering the reasons assigned in the instant Interlocutory Application as also taking into consideration the fact that the question of law, casted under the provisions of

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Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (in short ‘Act, 1952’) is under consideration, as such the applicant being the sole legal heir of the original writ petitioner, is having right to sue, deem it fit and proper to allow the instant Interlocutory Application.

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7. Accordingly, I.A. 997 of 2020 stands allowed, subject to objection, if any, raised by any aggrieved party or interested person.

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I.A. No. 996 of 2020

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8. This Interlocutory Application has been filed for condoning the delay of 1180 days, which has occurred in preferring this appeal.

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9. Heard learned counsel appearing for the parties. 10. Having regard to the averments made in this application, we are of the view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation.

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11. Accordingly, I.A. No. 996 of 2020 is allowed and delay of 1180 days in preferring the appeal is condoned.

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L.P.A. No. 78 of 2019

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12 . With the consent of learned counsel for the parties the matter has been taken up for hearing at this stage itself.

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13 . The instant intra-court appeal has been preferred against the order/judgment dated 26.10.2015 passed in W.P.(L) No. 7471 of 2013 whereby and whereunder the

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writ Court by dismissing the writ petition has declined to interfere with order dated 17.08.2012, by which notice was served upon the original writ petitioner giving direction to pay a sum of Rs. 6,54,884/- as dues against the establishment, and order dated 02.12.2013, by which liability under Section 7(A) and 7 (Q) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 has been casted upon the writ petitioner.

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14 . This Court, after having heard learned counsel for parties and on perusal of the materials available on record as also from the impugned orders, has found therefrom that liability has been casted upon the original writ petitioner by the respondents-authorities in exercise of power conferred under Sections 7(A) and 7(Q) of the Act, 1952. The respondents-authorities, after casting liability upon the writ petitioner had issued a notice on 17.08.2012 directing the writ petitioner to pay Rs.6,54,884/-. However, the said liability was disputed by the writ petitioner by submitting representation dated 27.08.2012 taking a plea therein that he is not running the establishment, namely Brindavan Garden Restaurant, upon which liability has been casted upon, rather at different point of time different persons run the establishment/restaurant with their choice name.

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15 . The writ Court, without entering into the merit of the issue, dismissed the writ petition on the ground of availability of alternative remedy, by granting liberty to the writ petitioner to avail appropriate remedy in accordance with law, which is the subject matter of present intra-court appeal.

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16 . This Court has gone across the provisions of Act, 1952 wherefrom it is evident that alternative remedy is available by invoking provision of review as under Section 7(B) of the Act, 1952 and thereafter provision of appeal is available under Section 7 (I) of the Act, 1952.

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It is not in dispute that there is no embargo in entertaining the writ petition even if there is availability of alternative remedy rather the same is self-imposed restriction but the said principle of law is to be decided on the basis of factual aspects involved in the case.

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So far as fact of the present case is concerned, the writ petitioner is claiming that the establishment in question, namely, Brindavan Garden Restaurant, is not having been owned by the original writ petitioner and as such whatever liability has been casted upon by the competent authority under the provisions of Sections 7(A) and 7(Q) of the Act, 1952, the same is without considering the fact that the establishment was not

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owned by the original writ petitioner, the father of the present appellant.

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In such view of the matter, there is requirement of ascertaining the factual aspect and once the issue which requires adjudication on the basis of determination of the factual aspects, exercising of power by the High Court under Article 226 of the Constitution of India cannot be said to be fit and proper, that too when the alternative remedy is available.

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17 . The learned Single Judge, after taking into consideration these aspects of the matter, has declined to interfere with the impugned orders passed by the respondents-authorities without touching the merit of the issue, however, liberty was granted to avail appropriate remedy in accordance with law.

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18 . This Court, in view of the availability of the alternative remedy under Act, 1952 and taking into consideration the fact of determination of the factual aspect, is of the view that the learned Single Judge has not erred in passing the impugned order.

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19 . In view thereof, the instant appeal is dismissed. Since liberty has already been granted by the learned Single Judge to avail appropriate remedy in accordance with law, we are not passing any further direction, however, we make it clear that if the writ petitioner-

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appellant approaches before the concerned competent authority, he will decide the issue on its merit and in accordance with law.

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20 . With the aforesaid observations and directions, the instant intra-court stands dismissed.

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(Sujit Narayan Prasad, J.)

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Alankar/ - N.A.F.R.

Sanjiv Kumar v. Employees Provident Fund Organization through Its Regional Officer

Case brief

What is this about?

What did the court decide?

Sanjiv Kumar v. Employees Provident Fund Organization through Its Regional Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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