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Judgment
Heard Mr. Deepak Seth, learned Counsel for the petitioner and Mr. Shivam Sharma, learned Counsel for the opposite parties 2 and 5.
By means of the instant writ petition, the petitioner is assailing the recovery certificate dated 25.7.2008 and the orders dated 6.10.2008 and 14.2.2007.
It has been stated by the counsel for the petitioner that the petitioner is a Company which was registered on 2.12.1988 under the name and style of ISPAC (India) Pvt. Ltd. in the office of Registrar of Companies, Maharashtra under the provisions of Companies Act. The main object of the petitioner''s company is to act as Industrial Security Consultant for undertaking security measure, i.e., to provide security personnel for persons, firms, companies, industries, house estates, body, politics and to train the security personnel and carry out the investigation for security measure and all other types of security works. On 6.6.2003, a contract agreement was executed for providing security personnel to the opposite party No. 3. Under the provisions of para - 30 of Chapter V & VI of Employees Provident Funds Scheme, 1952 read with the provisions of Employees Provident Funds and Miscellaneous Provisions Act, 1952, it is the sole duty of the principal employer to pay the contribution payable by himself and also on behalf of the member employed by him or through a contractor but the principal employer failed to make contributions in respect of provident fund scheme, insurance scheme and pension scheme.
It has been urged by the counsel for the petitioner that on 14.2.2007, the impugned order has been passed by the Assistant Provident Fund Commissioner, Lucknow in complete disregard to the provisions contained in para - 30 of the Employees Provident Funds Scheme, 1952, para - 8 of Employees Deposit Linked Insurance Scheme, 1976 and para - 4 of the Employees Pension Scheme, 1995 which specifically provide that the responsibility of contribution in respect of the said scheme is only of the principal employer and not of the contractor, but the opposite party No. 2 in a most illegal manner vide impugned order, without any jurisdiction and authority of law, directed the petitioner to deposit a sum of Rs. 40,24,394/- instead of issuing directions to the opposite parties 3 and 4.
On 28.3.2007, the petitioner preferred a review application against the order dated 14.2.2007 and the opposite party No. 5 in a most illegal manner issued a recovery notice to the petitioner for depositing the entire amount. Being aggrieved, the petitioner filed a writ petition in this Court, which was numbered as Writ Petition No. 7293 (MB) of 2008. The said writ petition was disposed of vide judgment and order dated 19.8.2008. The operative portion of the order reads as under:-
We, therefore, direct the opposite party No. 2 to consider and decide the review petition preferred by the petitioner as well as opposite party No. 3 within six weeks from the date a certified copy of this order is produced. Till the decision is taken on the review petition by the Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Lucknow the impugned recovery shall remain in abeyance.
In compliance of the order passed by this Court on 19.8.2008, notices were sent and ultimately the order dated 6.10.2008, impugned in the present writ petition was passed. A finding has been recorded in the impugned order that no review application from the establishment has been received in the office of Employees Provident Fund Organization. Further, it has been mentioned in the aforesaid order that an application dated 18.9.2008 has been submitted accompanied by an order passed by this Court with Vakalatnama executed and signed by Sri Gur Nithal Singh as well as a photocopy of the so-called review petition bearing 28.3.2007 as its date and purported to have been submitted in the office of Employees Provident Fund Organization, Lucknow on 29.3.2008 but the said application 18.9.2008 suffers from inconsistencies which have been mentioned in the impugned orders. However, in spite of inconsistencies, the case was considered on merit on the basis of the issues raised therein. The review petition was rejected and the order passed u/s 7-A of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 was confirmed vide order dated 6.10.2008.
Being aggrieved the instant writ petition has been filed.
On perusal of the impugned orders, it is abundantly clear that prior to the passing of the order dated 14.2.2007, ample opportunity u/s 7-A of the Act has been afforded as the proceeding initiated therein was spread over more than nine months and on two occasions, representative of the establishment appeared but he failed to cooperate during the course of hearing. Further, he did not produce any documentary evidence in support of his submissions.
It may be mentioned that a preliminary objection has been raised by Mr. Shivam Sharma, learned Counsel for Union of India that the petitioner has equally efficacious alternative remedy by preferring an appeal assailing the order passed on the review application, to which learned Counsel for the petitioner could not satisfy the court as to why the petitioner cannot be relegated to avail the alternative remedy.
Apart from the above objection, Mr. Shivam Sharma has also submitted that the documents on which reliance has been placed for exemption from payment of Employees of Provident Fund has been found, on enquiry, to be a forged document and an F.I.R. was also lodged in this context. We are of the view that all these facts can be looked into by the appellate authority in appeal.
By catena of decisions, it has been settled that the writ petition is not maintainable where the statutory remedy is available. In the instant case, it is not disputed that the petitioner has equally efficacious statutory remedy before the Appellate Tribunal u/s 71 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.
Accordingly, the writ petition is dismissed on the availability of alternative remedy.
No order as to costs.