VISHNU SECURITY SERVICES Vs. REGIONAL PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) By one paragraph order, the learned Single Judge on 30th September, 2011, dismissed the writ petition filed by the appellant herein observing that this Court has no territorial jurisdiction to entertain the writ petition in view of five-Judges Bench judgment dated 1st August, 2011 rendered by this Court in WP(C) No. 6570/2010 : [FB] entitled Sterling Agro Industries Ltd. v. Union of India, 2011 122 DRJ 693. The learned Single Judge has opined that merely because Employees Provident Fund Appellate Tribunal (hereinafter referred to as the Appellate Tribunal) is located in Delhi, it had decided the appeal and that was the subject matter of challenge in the writ petition, would not be a ground to entertain the writ petition in the High Court of Delhi. This order is assailed in the present appeal preferred by the appellant. The appellant is an establishment (since closed) which was the sole proprietorship concern of Mr. Neerav Khera. This establishment was providing security services and was having its office in Vadodara, Gujarat. It started its operation in the year 2002 and in October, 2002, the appellant applied for Provident Fund code number to the Employees Provident Fund Organization (EPFO). Code number was allotted by the EPFO on 31.10.2002 with effect from 18.10.2002. According to the appellant, since it did not get any response from the market nor could get any business, in October, 2002 itself, the appellant relieved all the employees from their services and closed down the establishment in November, 2002. It is further the case of the appellant that he himself took employment with M/s SYSCON Engineering Pvt. Ltd. and is working there since November, 2002. However, unaware of the fact that with the closure of establishment, he was also required to surrender the Provident Fund code, he did not take any step in this direction. On 14.7.2006, the proprietor received summons from the Office of the Regional Provident Fund Commissioner (RPFC), Vadodara, Gujarat directing him to appear before him in person on 31.7.2006. He appeared and informed the RPFC about the closure of the establishment. However, the RPFC, Vadodara passed orders under Section 7A of the Provident Fund Act dated 18.8.2006 directing the appellant to pay the provident fund dues to the tune of Rs. 2,90,417/-. The appellant felt aggrieved by this order and he preferred appeal before the Appellate Tribunal which is located in Delhi. This appeal was dismissed by the Appellate Tribunal vide orders dated 4th July, 2011 holding that the information obtained shows that the appellant was having business and was still functioning and further that once the establishment comes within the ambit of Provident Fund Act, it continues to be covered by the Act until it is proved that the establishment no more exists. It is this order dated 4th July, 2011 which was assailed by the appellant by filing the writ petition in this Court which has met the fate as aforesaid, namely, dismissal thereof for want of territorial jurisdiction permitting the appellant to approach the appropriate forum.

(2.) The question which arises for consideration, in these circumstances, is as to whether this Court has territorial jurisdiction to entertain the writ petition and in the process it needs to be determined as to whether the principle laid down by five Judges Bench in Sterling Agro have been correctly followed. In this context, it would be apposite to start discussion with the judgment of Sterling Agro before we refer to other judgments cited by learned counsel for the appellant. In this judgment rendered by the five Judges Bench, most of earlier judgments available on the question of jurisdiction rendered by the Supreme Court and many decisions of various High Courts were discussed in detail which included the following:-

(3.) After taking note of these judgments, discussion proceeded on the concept of 'forum conveniens' which runs as under: