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In this Intra-Court Appeal, the Urban Co-Operative Bank Ltd., At- Tinikonia Bagicha, P.O.- Buxi Bazar, District- Cuttack, being the Petitioner in W.P.(C) No.404 of 2016, has assailed the judgment dated 22.04.2019 passed by the learned Single Judge. The Appeal has been filed with limited challenge.
Though the Appellant/ Petitioner does not challenge the final order passed by the learned Single Judge, it assails the stipulation made by the learned Single Judge that Section 7-B proceeding shall be taken up subject to deposit of at least 25 per cent of the amount under demand and the said amount shall be kept in fixed deposit for the benefit of the successful party ultimately.
The facts of the case are not in dispute.
A proceeding under Section 7-A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) (hereinafter referred to as “the Act” for brevity) was initiated by the Respondent/ Opposite Party No.2-Regional Provident Fund Commissioner-(C & R), Employees Provident Fund Organization, Regional Office, Bhavisyanidhi Bhawan, Janpath, Unit-IX, Bhubaneswar, District- Khurda in respect of inclusion of Daily Deposit Collection Agents for provident fund benefits. On 21.11.2012, the Respondent/ Opposite Party No.2 passed the final order under Section 7-A of the Act. The Order was not challenged before the Appellate Tribunal. Rather, the Petitioner, the Appellant before us, filed an Application under Section 7-B of the Act for review, as was permitted by this Court in W.P.(C) No.22776 of 2012. On 01.01.2016, the Review Application was rejected by the Respondent/ Opposite Party No.2 under Section 7-B of the Act. The Appellant/ Petitioner filed W.P.(C) No.404 of 2016 challenging the said order dated 01.01.2016 under Annexure-4 to the writ petition out of which this Writ Appeal arises.
On 22.04.2019, the learned Single Judge passed the judgment setting aside the Annexure-4 to the writ petition and remitting the matter back to the Authority under Section 7-B of the Act for re-determination of the Review Application. However, the learned Single Judge simultaneously directed the Appellant/ Petitioner to deposit at least 25 per cent of the amount under demand which would be kept in fixed deposit in the absence of any such provision in the statute.
Mr. N.K. Mishra, learned Senior Counsel for the Appellant/ Petitioner submitted that the Act provides options for assailing the order passed under Section 7-A of the Act by way of review under Section 7-B of the Act or an Appeal under Section 7-I of the Act. He further draws attention of the Court to the legal provisions to the effect that though Section 7-O of the Act provides for deposit of seventy-five per cent of the amount due, before the appeal is entertained, no such provision is there in the Act for depositing of twenty-five per cent of the amount due, on filing of an application for review of an order passed under Section 7-A of the Act. He further submitted that the impugned order directing to deposit twenty-five per cent of the amount under demand is self-contradictory, beyond the statutory provision and, hence, needs to be set aside.
Mr. S.S. Mohanty, learned counsel for the Respondents/ Opposite Parties submitted that even when there is no provision for deposit of any amount, this Court can pass appropriate order to save the interest of the employees.
The Writ Petition i.e. W.P.(C) No.404 of 2016 was filed with a prayer to quash the order dated 01.01.2016 passed by the Respondent/ Opposite Party No.2 at Annexure-4 to the writ petition. Annexure-4 is the final order passed by the Respondent/ Opposite Party No.2- Regional Provident Fund Commissioner-(C & R), Employees Provident Fund Organization, Regional Office, Bhavisyanidhi Bhawan, Janpath, Unit-IX, Bhubaneswar, District- Khurda, wherein a direction was given to the Appellant/ Petitioner to deposit certain amount as it has failed to deposit the Employees’ Provident Funds under Section 6 of the Act. The Review Application has been rejected by the Authority.
On an analysis of the facts of the case, the learned Single Judge came to the conclusion that the order rejecting the Review Application is not only unreasoned one but also a mechanical one. The learned Single Judge further observed that the decision involving Section 7-B of the Act is not empty finality, as the order involving Section 7-B of the Act will have to ultimately merge with the order under Section 7-A of the Act. In the absence of any reason, the learned Single Judge further observed that even though an appeal lies under Section 7-D of the Act but for not assigning any reason in the impugned order at Annexure-4, the Petitioner has no scope for filing an Appeal against it. The learned Single Judge further observed that for the observation and reason indicated therein by him in the preceding paragraph, such proceeding should be concluded only after all out effort for the identification of the beneficiaries. The learned Single Judge further observed that identification of the persons does not mean that number of persons could have utilized for the involvement of money but actual identification of the persons with their names, period of engagement and wages they have drawn.
For the reasons stated thereon, the learned Single Judge interfered with the matter and set aside the order at Annexure-4 and remitted the matter back to the Respondent/ Opposite Party No.2- Regional Provident Fund Commissioner-(C & R), Employees Provident Fund Organization, Regional Office, Bhavisyanidhi Bhawan, Janpath, Unit-IX, Bhubaneswar, District- Khurda for re-determination of the Review Application directing the Appellant/ Petitioner to appear before the Respondent/ Opposite Party No.2- Regional Provident Fund Commissioner-(C & R), Employees Provident Fund Organization, Regional Office, Bhavisyanidhi Bhawan, Janpath, Unit-IX, Bhubaneswar, District- Khurda. Learned Single Judge further observed that till a decision is taken in the Review Application, the demand involved therein shall remain suspended, however, subject to deposit of at least twenty-five per cent of the amount under demand.
On one hand, it is clear that the Act does not provide for deposit of any particular percentage of amount determined under Section 7-A of the Act in an application filed for review under Section 7-B of the Act. However, the High Court has jurisdiction to impose any such condition in the interest of justice. It is further borne out from the record that in this case, the Appellant/ Petitioner contended that there has been no specific determination of the employees engaged by it as Collection Agents and, hence, the order passed by the Respondent/ Opposite Party No.2- Regional Provident Fund Commissioner-(C & R), Employees Provident Fund Organization, Regional Office, Bhavisyanidhi Bhawan, Janpath, Unit-IX, Bhubaneswar, District- Khurda is liable to be set aside in a Review Application.
In such a view of the facts, if a Review Application is filed then it shall not be proper on the part of the Court to impose condition to deposit a certain percentage of amount determined. Moreover, it is not the case of the Respondents/ Opposite Parties that if the deposit of twenty-five per cent of the amount under demand is made, then it shall be disbursed in favour of the Workmen. As such the Workmen have not been identified as yet.
So, we are inclined to allow the Appeal in part. Accordingly, the Appeal is allowed in part. The impugned order passed by the learned Single Judge is modified to the extent that the expression “xx xx xx but however subject to deposit of at least 25 % of the amount under demand. The amount shall be kept in Fixed Deposit for the benefit of the successful party ultimately” shall not be given effect to or insisted upon.
In the result, the appeal is allowed in part with the aforesaid observations. The Appellant/ Petitioner is directed to appear before the Respondent/ Opposite Party No.2- Regional Provident Fund Commissioner-(C & R), Employees Provident Fund Organization, Regional Office, Bhavisyanidhi Bhawan, Janpath, Unit-IX, Bhubaneswar, District- Khurda along with a downloaded copy of this order from the website of the Court duly attested by Mr. N.K. Mishra, learned counsel for the Appellant/ Petitioner on or before 20th July, 2021. On such event, a fresh hearing of the matter will be taken up and the same shall be disposed of within a period of six months from the date of appearance of the Appellant/ Petitioner along with a downloaded copy of this order from the website of the Court, after affording adequate and reasonable opportunity to the parties for hearing and producing relevant papers/ documents.
Accordingly, the Appeal is disposed of.
As the restrictions due to resurgence of Covid-19 are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by concerned Advocate along with seal, in the manner prescribed vide Court’s Notice No.4587 dated 25th March, 2020 as modified by Court’s Notice No.4798 dated 15th April, 2021.
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