SUPREME COURT OF INDIA

Before:- S.B. Majumdar and V.N. Khare, JJ.

C.A. No. 5540 and 5551 of 1983 with Nos. 2611-12 of 1989. D/d. 19.2.1998

Sumedico Corporation - Petitioner

Versus

Regional Provident Fund Commissioner - Respondent

Employees' Provident Funds and Miscellaneous Provisions Act, 1952, Sections 7A and 7D - Vires of Section 7A challenged on the ground that section did not provide for appeal - Pending these appeals section 7D inserted by amending the Act - Which provides for an appeal before the appellate tribunal - Question of challenge to vires of section 7A does not survive - Appellants relegated to the statutory remedy of appeal before the appellante authority for decision on merits.

[Paras 2, 6 & 10]

ORDER

S.B. Majumdar, J. - These two appeals are moved by a common appellant that has felt aggrieved by order dated December 8, 1982 under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 passed by the authorities functioning under the Act against the present appellant. Civil Appeal No. 5540 of 1987 arises out of a writ petition which the appellant moved before the High Court of Gujarat challenging the aforesaid Section 7A order on diverse grounds including the ground that Section 7A was ultra vires the provisions of the Constitution of India. The High Court repelled the challenge to the vires of the provision by the impugned order and also made observations on the merits of the Section 7A order. The other civil appeal is moved directly by the appellant against the Section 7A order before this Court. As the controversy ultimately centers round the Section 7A order itself which is the order of the first authority, these appeals were tagged together for disposal.

2. Pending these appeals, the legislature itself has amended the provisions of the Act by inserting Section 7D providing for remedy of an appeal before an Appellate Tribunal. Not only that, but by notification dated June 30, 1997 the Tribunal is already constituted and it is functioning at Delhi. Copies of the relevant notifications are taken on record. In view of this development, therefore, the question of challenge to the vires of Section 7A on the ground that there was no appeal provided under the Act does not survive and it has become academic.

3. Now remains the question about the merits of the order under Section 7A of the Act. So far as this question is concerned, it is true that the appellant in that first instance went to the High Court and the High Court made certain observations on the merits of the order. But, in our view interest of justice will be served if we relegate the appellant to the statutory remedy available now to it to approach the Tribunal constituted under Section 7D of the Act. We, therefore, relegate the appellant to the remedy of this statutory appeal which shall be filed by the appellant within a period of two months from today. If such appeal is filed within that time, the Tribunal will decide the same on merits after hearing the parties concerned.

4. This direction will result in making CA No. 5541 of 1983 infructuous as that appeal is directed against the very same Section 7A order which is being permitted to be challenged by the appellant before the Tribunal.

5. So far as the judgment and order of the High Court under appeal in CA No. 5540 of 1983 are concerned, once we relegate the appellant to the remedy of statutory appeal under Section 7D pursuant to the present order, the observations made by the High Court on the merits of the impugned Section 7A order would not survive any further and will be treated to be of no legal consequence. Meaning thereby, the entire controversy centering round Section 7A order will have to be decided on its own merits by the Tribunal unfettered by any earlier observations made by the High Court in this connection and which observations are treated to be of no consequence of our present order.

6. We make it clear that we are expressing no opinion on the merits of the Section 7A order. Similarly, we express no opinion on the observations of the High Court on the merits of Section 7A order as in our view those observations do not survive in view of the statutory remedy made available to the appellant.

7. The appeals are accordingly disposed of No costs.

C.A. Nos. 2611-12 of 1989

8. These two appeals by special leave are moved by a common appellant, who felt aggrieved by two orders of the High Court of Delhi. One order was passed by the Division Bench of the High Court in a writ petition under Articles 226 and 227 of the Constitution of India on May 10, 1988 and another order was passed by the Bench in review petition rejecting the same on August 19, 1988.

9. The authorities functioning under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 passed an order under Section 7A on November 24, 1984. By the said order the appellant's concern was held to be covered by the provisions of the Act. The said order was challenged before the High Court. The High Court dismissed the writ petition by one word "dismissed". The review petition was dismissed subsequently by observing that "...... in spite of repeated opportunities, the petitioner has failed to produce the original record before the Provident Fund Commissioner. No ground for interference. Dismissed."

10. Now, it must be observed that by subsequent amendment to the Act, Section 7D was brought on the statute book by the legislature and a statutory remedy of appeal before the Appellate Tribunal was made available for challenging the order under Section 7A of the Act. Such a tribunal is also established vide a notification dated June 30, 1997. We have already made necessary observations in this connection in our judgment and order passed today in Civil Appeals Nos. 5540-5541 of 1983. Consequently, in the light of our observations in the aforesaid decision, it must be held that the present appellant also is required to be relegated to the statutory remedy of appeal before the Appellate Tribunal, Delhi functioning under Section 7D of the Act. For that purpose we grant two months time to the appellant to file appropriate statutory appeal against the impugned Section 7A order. Once this appeal is filed, it will be open to the appellant to put forward all the legally permissible contentions against the Section 7A order including the contention if any, pertaining to the jurisdiction of the authority passing such orders. All these contentions will be examined by the Tribunal on their own merits after hearing the parties concerned.

11. We express no opinion on the merits of the controversy centering round the impugned Section 7A order. It is obvious that the High Court has not observed anything on merits of the order against the appellant. Therefore, the Tribunal will decide the statutory appeal on its own merits in the light of all the evidence that may be led by the contesting parties before it and in the light of all legally permissible contentions canvassed for its consideration.

12. Subject to these clarifications, these appeals are disposed of. No costs.

13. Learned counsel for the appellant informed us that as there was no stay of the Section 7A order pending these appeals, the appellant has made requisite deposits before the authorities in compliance of the Section 7A order. It is obvious that the said amount, if deposited, will abide by the final result in the appellate proceedings which may be filed by the appellant before the Tribunal.