VATAN PRESS SUDARMA JAIPUR Vs. REGIONAL PROVIDENT FUND COMMISSIONER ASSISTANT PROVIDENT FUND COMMISSIONERS EMPLOYEES PROVIDENT FUND ORGANIZATION

JUDGEMENT

(1.) THE petitioner has challenged the order dated October 4, 2004 passed by the Assistant provident Fund Commissioner (Damages) ('the commissioner', for short) whereby the learned commissioner has directed that Rs. 14,32,032/-should be recovered from the petitioner for the period February, 1994 to October, 2001.

(2.) THE brief facts of the case are that the petitioner establishment is covered under the provisions of Employees Provident Fund and miscellaneous Provisions Act, 1952 ('the Act', for short ). It was paying regular contribution from the date of its coverage under Code No. RJ-3350. In March, 2004 the petitioner received a notice from the respondent for some delay in payment of contribution and regarding initiation of the proceedings under Section 14-B of the Act. The petitioner also received a notice dated March 29, 2004 to appear before the respondent in the proceedings under Section 14-B of the Act. According to the notice, the hearing was fixed for April 15, 2004. On April 15, 2004, the petitioner submitted an application for issuing a fresh legible notice as notice of Section 14-B was illegible. The learned Commissioner adjourned the case for may 13,2004. Further, it is the petitioner's case that the proceeding was adjourned on various dates and on each date the representative of the petitioner attended the proceedings. On July 12, 2004, the learned Commissioner informed the petitioner that after remittance of the copy, the case shall be heard. But, in the meantime, the case was taken up by the respondent without remittance of the Statement of delayed payment of contribution. As such, no reply could be filed by the petitioner. However, despite the appearance of the petitioner's representative, the order sheets of August 4, 2004 and August 18, 2004 show their absence. Thus, the order sheets have been drawn in a mechanical manner. Thereafter, clerk of the department prepared a Statement of damages and produced it before the Commissioner for his signature. Subsequently, vide order dated August 4,2004, the learned Commissioner has imposed a total damage of Rs. 14,32,032/- upon the petitioner. On receiving the order dated October 4, 2004, again a letter was written by the petitioner dated october 17, 2004 which was received by the respondent on October 18,2004 praying that an opportunity of hearing may be granted to him after providing legible copy. Thereafter, the respondent had sent the legible copy to the petitioner along with the letter dated November 8,2004 which was received by the petitioner on november 16, 2004. But after receiving the legible copy, no opportunity of hearing was given to the petitioner and the respondent started the recovery proceedings. Therefore, on march 4, 2005, the petitioner sent a notice for demand of justice for not taking any action against him. According to the petitioner, the order dated October 4, 2004 is not only arbitrary, but is also against the principles of natural justice. Hence, this petition before this court.

(3.) MR. Achantya Kaushik, the learned counsel for the respondent, has raised a preliminary objection that since the petitioner has an alternate remedy available under Section 7-I of the Act, therefore, this writ petition is not maintainable before this Court. According to the learned counsel, the writ petition has been filed by the petitioner only to escape from the liability of having to deposit Rs. 14,32,032/-prior to filing of the appeal. However, such a subterfuge cannot be employed by the petitioner to circumvent a statutory alternate remedy.