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$-14 HIGH COURT OF DELHI
W.P.(C) 10134/2015
M/S SHRIKRUPA SERVICES PVT LTD.
Petitioner
Through: Mr Rajiv Shukla and Mr P.S. Sridharraj, Advs.
W.P.(C) 10134/2015
M/S SHRIKRUPA SERVICES PVT LTD.
Petitioner
Through: Mr Rajiv Shukla and Mr P.S. Sridharraj, Advs.
VERSUS
CENTRAL BOARD OF TURSTEES AND ANR Respondent
Through: Ms Inderjeet Sidhu, Adv.
Through: Ms Inderjeet Sidhu, Adv.
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
30.10.2015
30.10.2015
CM 24945/2015 (exemption')
Exemption allowed subject to all just exceptions.
The application stands disposed of.
W.P.rC^ 10134/2015 & CM 24944/2015 (stay)
The challenge in this petition under Articles 226 and 227 of the Constitution of
India is to the order dated 16.10.2015 passed by the EPF Appellate Tribunal vide which while admitting the appeal filed by the petitioner challenging the order passed by the respondent no.2 under Section 14-B and 7Q of the Employees Provident Fund & Misc
Provisions Act (hereinafter, 'the Act') the respondent was directed not to recover more than 50% ofthe assessed amount as per the impugned order.
Notice.
Ms Indeqeet Sidhu, Advocate appears and accepts notice on behalf of the respondents.
With the consentof the parties,the writ petitionis taken up for final hearing.
It is submitted by counsel for the petitioner that the order dated 30.09.2015 under
Section 7A of the Act suffers from various infirmities and in fact it was a fit case for remand by the Appellate Tribunal and that being so although the appeal of the petitioner was admitted but, at the same time, the respondent was restrained to recover more than
50% of the assessed amount meaning thereby that the respondent was granted liberty to recover 50% of the assessed amount. Such a direction should not have been given.
2015:DHC:11769 Reliance was placed on Old Village Association Ltd. v. Asstt. Provident Fund
Commissioner, 115 (2004) DLT 510.
On the other hand, learned counsel for the respondent submits that an appeal lies against the order passed u/s 14B and 7Q of the Employees Provident
Fund Act and as per Section 7(0) of the Act for entertaining an appeal, it is mandatory to deposit 75% of the assessed amount due, however, as per the proviso the establishment can move an application for waiver/reducing the pre- deposit amount and the Tribunal in its discretion may reduce/waive such pre- deposit. However, in the instant case, establishment did not choose to move any such application as required under 7(0) ofthe Act. Instead it moved an application for stay of the impugned order was moved. While entertaining an appeal, the
' Tribunal in its discretion directed the respondent not to recover more than 50% of the amount. No fault can be found with this discretion of the authority. Reference was also made to the grounds of appeal wherein the petitioner has admitted that there was delay in making payment. That being so, in view ofthe admission ofthe petitioner, the Competent Authority was justified in passing the order under
Section 14B and 7Q of the Act. Reliance was placed on an order passed by this
Court in Jai Balaji Security Services (Regd.) y. Assistant Provident Fund
Commissioner [W.P.(C) No.9526/2015, decided on 15,10,2015] wherein substantially similar order was passed, A copy of the order has been placed on record.
As regards the reliance placed by learned counsel for the petitioner on Old
Village Association Ltd. (supra) is concerned, the petitioner cannot get any benefit from
^ . the same as no pre-condition ofdeposit for entertaining ofthe appeal has been passed by the respondent. Similar question was considered by this Court in Jai Balaji Security
Services (Regd.) (supra) wherein it was observed and held as under:
"5. Right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal which is statutory right can be conditional or qualified. It cannot be said that such a law would be violative of Article 14 of the Constitution. If the statute does not create any right of appeal, no appeal can be filed. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of a civil nature unless the suit is barred by statute. However, in regard to an appeal, position is quite opposite. The right to appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. When such a law authorises filing of appeal, it can impose conditions as well.
Exemption allowed subject to all just exceptions.
The application stands disposed of.
W.P.rC^ 10134/2015 & CM 24944/2015 (stay)
The challenge in this petition under Articles 226 and 227 of the Constitution of
India is to the order dated 16.10.2015 passed by the EPF Appellate Tribunal vide which while admitting the appeal filed by the petitioner challenging the order passed by the respondent no.2 under Section 14-B and 7Q of the Employees Provident Fund & Misc
Provisions Act (hereinafter, 'the Act') the respondent was directed not to recover more than 50% ofthe assessed amount as per the impugned order.
Notice.
Ms Indeqeet Sidhu, Advocate appears and accepts notice on behalf of the respondents.
With the consentof the parties,the writ petitionis taken up for final hearing.
It is submitted by counsel for the petitioner that the order dated 30.09.2015 under
Section 7A of the Act suffers from various infirmities and in fact it was a fit case for remand by the Appellate Tribunal and that being so although the appeal of the petitioner was admitted but, at the same time, the respondent was restrained to recover more than
50% of the assessed amount meaning thereby that the respondent was granted liberty to recover 50% of the assessed amount. Such a direction should not have been given.
2015:DHC:11769 Reliance was placed on Old Village Association Ltd. v. Asstt. Provident Fund
Commissioner, 115 (2004) DLT 510.
On the other hand, learned counsel for the respondent submits that an appeal lies against the order passed u/s 14B and 7Q of the Employees Provident
Fund Act and as per Section 7(0) of the Act for entertaining an appeal, it is mandatory to deposit 75% of the assessed amount due, however, as per the proviso the establishment can move an application for waiver/reducing the pre- deposit amount and the Tribunal in its discretion may reduce/waive such pre- deposit. However, in the instant case, establishment did not choose to move any such application as required under 7(0) ofthe Act. Instead it moved an application for stay of the impugned order was moved. While entertaining an appeal, the
' Tribunal in its discretion directed the respondent not to recover more than 50% of the amount. No fault can be found with this discretion of the authority. Reference was also made to the grounds of appeal wherein the petitioner has admitted that there was delay in making payment. That being so, in view ofthe admission ofthe petitioner, the Competent Authority was justified in passing the order under
Section 14B and 7Q of the Act. Reliance was placed on an order passed by this
Court in Jai Balaji Security Services (Regd.) y. Assistant Provident Fund
Commissioner [W.P.(C) No.9526/2015, decided on 15,10,2015] wherein substantially similar order was passed, A copy of the order has been placed on record.
As regards the reliance placed by learned counsel for the petitioner on Old
Village Association Ltd. (supra) is concerned, the petitioner cannot get any benefit from
^ . the same as no pre-condition ofdeposit for entertaining ofthe appeal has been passed by the respondent. Similar question was considered by this Court in Jai Balaji Security
Services (Regd.) (supra) wherein it was observed and held as under:
"5. Right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal which is statutory right can be conditional or qualified. It cannot be said that such a law would be violative of Article 14 of the Constitution. If the statute does not create any right of appeal, no appeal can be filed. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of a civil nature unless the suit is barred by statute. However, in regard to an appeal, position is quite opposite. The right to appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. When such a law authorises filing of appeal, it can impose conditions as well.
ORDER
6. During the course of arguments, learned counsel for the petitioner laid much emphasis on the fact that in an appeal preferred against an order passed u/s 14B and 7Q. of the Act, no pre-deposit u/s 7(0) of the Act is required. However, admittedly, the appeal challenging the order u/s 14B and 7Q of the Act was accompanied by an application for stay of the impugned order. While admitting the appeal for consideration, the Appellate Authority directed the Competent Authority not to recover more than 50% of the amount as per the impugned order. As noted above, when the law authorises filing of appeal, discretion exercised by the appellate authority admitting the appeal subject to certain conditions cannot be said to be perverse which calls for interference. Things are substantially the same in this petition. The discretion exercised by the Appellate Authority cannot be said to be perverse which calls for any interference. As such, the writ petition is dismissed. Pending CM also stands disposed of. ^ SUNITA GUPTA, J OCTOBER 30,2015/rd —Review OAoj-v, JJ'