The Assistant Provident Fund v. The Employees Provident Fund
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.08.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI and W.M.P.No.35942 of 2016 The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Regional Office, Tambaram, No.3, Rajaji Salai, Chennai - 600 045.
... Petitioner Vs.
1. The Employees Provident Fund Appellate Tribunal, (Ministry of Labour) Represented by Presiding Officer, Scope Minar Core - 11, 4th Floor, Laxmi Nagar District Centre, New Delhi - 110 092.
2. M/s.Hong Kong Kid Leathers, No.14, Sargunar Salai, Nagalgeni, Chromepet, Chennai - 600 044.
...Respondents
Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari calling for the records of the 1st respondent Page No. 1 of 8
relating to the impugned order of the 1st respondent in ATA No.315 (13) 2013 dated 13.05.2014 and quash the same.
For Petitioner : Mr.A.Ilangovan For Respondents : Not ready in notice
ORDER
Assailing the order of the 1st respondent, in and by which the order passed by the petitioner has been set aside, wherein the petitioner had directed the respective 2nd respondent to pay the contribution towards PF in respect of the allowances for which PF was not deducted and deposited, the present writ petitions have been filed.
2. When the matter is taken up for hearing today, the learned counsel appearing for the petitioner submitted that the issue involved in this writ petition is no longer res integra and further submitted that already this Court has dealt with similar issues, one of which has been decided by this Court in W.P. Nos.24631 to 24633 of 2017.
3. This Court in W.P. Nos.24631 to 24633 of 2017 in the case of The Page No. 2 of 8
Asst. Provident Fund Commissioner Vs. The Presiding Officer and Anr., in paragraph Nos.28, 29 and 30, has held as follows : "28. It is to be pointed out that when an authority performs quasi-judicial function, by passing orders in a matter, it neither acts in favour of the Government nor the individual, but is performing a duty endowed on it by the statute. The authority is immune from all attachments and realisations for and on behalf of the Government and is in no way attached with the order, as it is only the statutory prescription that is sought to be enforced by the authority and it has no personal afflictions to the said issue. In case, the order passed by the authority is not in favour of the department, at best the department, upon proper authorisation from the Government could seek further judicial recourse but it is not open to the original authority, who passed the order, without any authorisation, to challenge the order passed by the Tribunal.
29. The above view expressed by this Court finds favour in the decision of the Apex Court in Mohtesham Mohd. Ismail case (supra), which clearly portrays the position in which the original authority is positioned when it comes to questioning the appellate order as has happened in the present case. For Page No. 3 of 8
better appreciation, the relevant portion of the decision is quoted hereunder :- "15. From the notification dated 22.09.1989, whereupon reliance has been placed by Mr. Bhan, it would appear that the officer authorized by the Central Government for the purpose of enforcing the provisions of the Act was specifically empowered to adjudicate upon the dispute. The said notification itself is a pointer to the fact that for the purpose of exercising the functions of the Central Government under one provision or the other, the officer concerned must be specifically empowered in that behalf. A general empowerment would, however, be permissible. Before the High Court, no notification was filed to show that the authority concerned was empowered to prefer an appeal on behalf of the Central Government. The Central Government was not even impleaded as a party to the appeal. First Respondent did not file the appeal on behalf of or representing the Central Government. It was filed in its official capacity as the adjudicating authority and not as a delegatee of the Central Government.
16. An adjudicating authority exercises a quasijudicial power and discharges judicial functions. When its order had been set aside by the Board, ordinarily in absence of any power to prefer an appeal, it could not do so. The reasonings of the High Court that he had general power, in our opinion, is fallacious. For the purpose of exercising the functions of the Central Government, the officer concerned must be Page No. 4 of 8
specifically authorized. Only when an officer is so specifically authorized, he can act on behalf of the Central Government and not otherwise. Only because an officer has been appointed for the purpose of acting in terms of the provisions of the Act, the same would not by itself entitle to an officer to discharge all or any of the functions of the Central Government. Even ordinarily a quasijudicial authority can not prefer an appeal being aggrieved by and dissatisfied with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Central Government, should act as an impartial Tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board.
17. The Madras High Court in Rama Arangannal (supra) opined :
"4. On the question as to the maintainability of the appeal, it is seen that the Explanation to Section 54 of the Foreign Exchange Regulation Act 1973 treats only the Central Government as an aggrieved party for the purpose of filing an appeal to the High Court in respect of orders passed by the Foreign Exchange Regulation Appellate Board under that section. Therefore, only the Central Government can file and prosecute an appeal against the order of the Appellate Board, and not any other authority, In this case, the appeal has been filed by the Director of Enforcement, who is the initial authority who passed the adjudication order against the Page No. 5 of 8
respondents and whose order has been set aside by the Appellate Board on an appeal filed by them. Therefore, the Director of Enforcement cannot be said to be aggrieved by the order of the Appellate Board merely because its order of adjudication has been set aside by the Appellate Board."
(Emphasis Supplied)
30. The decision of the Apex Court in Mohtesham Mohd. Ismali case (supra) clearly sets at naught the order passed by the learned single Judge in W.P. Nos.17518/2010, etc. Batch, dated 21.06.2011, which has been referred to by the petitioner and also adverted to by this Court in the earlier portion of this order. In the absence of any explicit authorisation granted to the petitioner by the Central Government to file appeal/writ petition against the order passed by the appellate authority/Industrial Tribunal, the act of the petitioner in filing the present petitions is not only beyond its jurisdiction, but is also against the statute, which cannot be permitted to be continued."
4. In view of the issue having been settled already and the present case falls squarely within the four corners of the said decision, this Court is inclined to dismiss this Writ Petition in the same line by following the above order confirming the impugned order passed by the Tribunal. Page No. 6 of 8
5. Accordingly, this Writ Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. 07.08.2023 (rap) NCC: Yes / No Index : Yes / No Speaking Order : Yes / No To The Presiding Officer, Employees Provident Fund Appellate Tribunal, Scope Minar Core - II, 4th Floor, Lakshmi Nagar, New Delhi - 110 092.
Page No. 7 of 8
M.DHANDAPANI,J.
rap 07.08.2023 Page No. 8 of 8