ORDER
N. Prusty, J.
1. The petitioner Rajpath Motors has filed this writ petition, inter alia, challenging the order passed by the Assistant Provident Fund Commissioner dated August 29, 2006 (Annexure-9) in a proceeding for review under Section 7-B of the Employees' Provident Funds and Miscellaneous Provisions Act 1952 (hereinafter referred to as 'the Act') as well as Original order dated June 9,2006 (Annexure-6) passed in a proceeding under Section 7-A of the Act.
2. Heard Debasis Das, learned Counsel for the petitioner, P. K. Mishra, learned Counsel for opposite party No. 1 and D. P. Mohanty, learned senior advocate for opposite party No. 2.
3. As it appears vide order dated June 9, 2006 (Annexure-6), the Assistant Provident Fund Commissioner, Orissa, Bhubaneswar, passed his final order in a proceeding initiated against the present petitioner under Section 7A of the Act and directed the petitioner to deposit Rs. 40,494/- towards E.P.F. dues and Rs. 23,553 towards interest @ 12% per annum, in respective Account, within a period of fifteen days from the date of receipt of the award.
4. The petitioner instead of filing an appeal challenging the order passed by the concerned authority under Section 7-A of the Act, chose to file a Review Application under Section 7B of the Act on June 21, 2006 before the selfsame authority for reviewing the order dated June 9, 2006 disclosing certain subsequent developments in the matter, which is said to be not within the knowledge of the petitioner during the pendency of the 7-A proceeding or at the subsequent stages of the proceeding when the matter was being heard by the concerned authority. Das, learned Counsel appearing on behalf of the petitioner submits that since a final order was passed in the review petition,: rejecting the prayer for review, is not an appealable order, the petitioner having no alternative remedy approached this Court by way of filing this writ petition. As such the writ petition is maintainable and the same should be' considered and disposed of on merit.
5. Mishra, learned Counsel appearing on behalf of the Assistant Provident Fund Commissioner/opposite party No. 1 in support; of the contentions of the learned Counsel for the petitioner with regard to the maintainability of the writ petition submits that, since the statute provides that when a review application under Section 7-B of the Act is rejected by the; authority, the order is not an appealable order, the writ petition filed by the petitioner is very much maintainable and this Court can hear and dispose of the matter on its own merit.
6. Mohanty, learned senior advocate' appearing on behalf of opposite party No. 2 submits that even though the order passed by the officer rejecting an application for review, is not an appealable order, since the order passed ( in the proceeding under Section 7-A of the Act remains in full force and effect, which is an appealable one, the petitioner ought to have approached the appellate Authority challenging the order passed in 7A proceeding, instead of. approaching this Court. Scope for interference in an appeal is much wider than in application under Articles 226 and 227 of the Constitution and all points taken in this writ petition could have been taken in the appeal. This ground has also been taken by opposite party No. 2 in his Counter Affidavit at paragraphs and 5.
7. In support of his contention, Das, learned Counsel cited a decision of this Court in the case of Payal Engineers and Anr. v. Assistant Provident Fund Commissioner (C) and Another in 2005 (1) OLR 413, whereby the preliminary objection raised by the learned Counsel for the opposite parties to the effect that when there is an alternative remedy for filing of an appeal is available, the writ petition is not maintainable, was rejected and the plea advanced by the petitioner that where 'the order is palpably illegal and an apparent error has been committed apparent on the face of records for which the petitioners should not be directed to file an appeal at Delhi, as such direction would cause irreparable loss and harassment to them' Para-2 of the order), was accepted and the matter was decided on its merit by allowing the writ petition as well as directing the Assistant Provident Fund Commissioner to dispose of the case No. 7A/02/2003 de novo after hearing the petitioner strictly in consonance with law.
8. This decision shall not help the present petitioner in any manner since that writ petition was filed by the petitioner challenging the order passed in a proceeding under Section 7-A of the Act. Preliminary objection was raised with regard to the maintainability of the writ petition, when an alternative remedy of appeal was available to the petitioner. This Court took this view, mainly keeping in view of the fact that the petitioner unit was not in existence during the period for which the assessment was being made against it, in a proceeding under, Section 7-A of the Act and there was a finding of the Assessing Authority to that effect in the impugned order (Paragraph-8 of the judgment). 'Such assessment in respect of a unit which was not in existence during the relevant period cannot be sustained in the eye of law'. Finally it was found/observed because of these inherent defects in the assessment order, no useful purpose would be served in directing the petitioner to file an appeal and accordingly the writ petition was allowed, in quashing the impugned order.
9. In the instant case the position of the petitioner is completely different otherwise. In the case of Payal Engineers and Ors. the proceeding under Section 7-A of the Act was initiated against a non-existent unit, during the period for which assessment was made. As such the ratio of the decision in that case cannot be made applicable to this case.
10. The second decision, which was cited by the petitioner is of the Supreme Court in a Central Sales Tax Matter, i.e. the case of State of H.P. and Ors. v. Gujarat Ambuja Cement Ltd. and Anr. AIR 2005 SC 3936 : (2005) 6 SCC 499. Learned Counsel for the petitioner mainly relied on paragraph- 15 of the decision whereas Mohanty, learned senior advocate, appearing on behalf of opposite party No. 2 placed his reliance on paragraphs 10,13 and 17 of the said decision.
11. Paragraph 15 of the decision, which is relied upon by the learned Counsel for the petitioner, runs as follows:
If, as was noted in Ram and Shyam Co. v. State of Haryana and Ors. : AIR1985SC1147 , the appeal is from 'Caeser to Caeser's wife' the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case the; writ petitioners had indicated the reasons as to why they thought that the alternative remedy would not be efficacious. Though the High Court did not go into that plea relating to bias in detail, yet it felt that, alternative remedy would not be a bar to entertain the writ petition. Since the High Court has elaborately dealt with the question as to why the statutory remedy available was not efficacious, it would not be proper for, this Court to consider the question again. When the High Court had entertained a writ petition notwithstanding existence of an alternative remedy this Court while dealing with the matter in an appeal should not permit the question to be raised unless the High Court's reasoning for entertaining the writ petition is found to be palpably unsound and irrational. Similar view was expressed by this Court in First Income Tax Officer, Salem v. Short Brothers (P) Ltd. : [1966]60ITR83(SC) , and State of U. P. and Ors. v. Indian Hume Pipe Co. Ltd. : [1977]107ITR195(SC) That being the position, we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well-recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provisions of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.
12. Further paragraphs of the said judgment, which are relied upon by Mohanty learned senior advocate for the opposite party No. 2, run as follows:
10...At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy....
13. In Harbans Lai Sahnia v. Indian Oil Corporation Ltd. : AIR2003SC2120 this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and they may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
17. At this juncture, it would be appropriate to take note of the few expressions in Reg v. Hilington, London Borough Council (1975) 1 QB 720) which seems to bring out well the position. Lord Widgery, C.J. stated in this case:
It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy....The statutory system of appeals is more effective and more convenient then application for certiorari and the principal reason why it may prove itself more convenient and more effective is that an appeal to (say) the Secretary of State can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of those...whereas of course an appeal for certiorari is limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order.'
An application for certiorari has however this advantage that it is speedier and cheaper than the other methods and in a proper case therefore it may well be right to allow it to be used.... Would however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without Jurisdiction or in inconsequence of an error of law.
13. The ratio of the decision of Supreme Court in the case of State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. and Anr. (supra) shall also be of no help to the petitioner. Even though the subject matter of the case related to a Central Sales Tax matter, in paragraph 15 of the decision, the Hon'ble Supreme Court has observed in clear and categorical terms as to what are the exceptions to the doctrine of exhaustion of the statutory remedies for entertaining a writ petition. The petitioner's case does not come under the purview of both the exceptions, since the proceeding was not before a forum under the provisions of law, which is ultra vires, nor the impugned order was made in violation of the principles of natural justice. Furthermore, in this case it will not also be an appeal from 'caeser to caeser's wife'. In paragraphs 10, 13 and 17 of the said decision also clear with regard to the position relating to entertaining an application of certiorari. Since the petitioner does not come within the purview of any of the exceptions it cannot get any relief depending upon this decision.
14. It is admitted position that so far as order passed in a proceeding under Section 7-A of the Act is concerned, the same is an appealable order. The main point to be decided in this case is as to whether there is an error apparent in the impugned order, keeping in view the provisions of Section 7B of the Act, which would call for any interference and as to 'whether this writ petition wherein both the order passed in a review application filed under Section 7-B of the Act as well as the order passed in the initial proceeding under Section 7-A of the Act are under challenge, can be entertained by this Court or not.
15. Das, learned Counsel for the petitioner brought to my notice the provision of Section 7-B(5) of the Act, which provides that no appeal shall lie against the order of the officer rejecting an application for review, but an appeal under this Act shall lie against an order passed under review as if the order passed under review were the original order passed by him under Section 7-A. Learned Counsel further submits that if the order passed by the concerned authority in reviewing/modifying the order passed under Section 7-A proceedings, then only the appeal can be preferred against that order, but once the review application is rejected without entertaining the same even though it is a reasoned order on merit of the application, the same is not an appealable order and as such the petitioner has no other alternative remedy available except approaching this Court by way of filing this writ petition.
16. At this stage, ohanty, learned senior advocate produced a copy of the order passed by this Court in the case of Managing Director, Utkal Automobiles Ltd. v. Sri Chinta Haran Sinha and Anr. dated May 15, 2007 passed in W. P. (C) No. 2351 /2005, wherein this Court has rejected the plea taken by Mohanty, who was then appearing on behalf of the petitioner, that is the plea which is also being taken by Das, learned Counsel for the present petitioner for entertaining a writ petition, even though that was against an order passed under Section 7-4(b) of the Payment of Gratuity Act.
17. Mohanty in that case submitted that this Court has unlimited jurisdiction for exercising its extraordinary power under Article 226 of the Constitution to entertain the writ petition and the same cannot be rejected only on the ground of availability of an alternative remedy. Finally considering the submissions made by learned Counsel for both the sides in that case, the plea taken by the learned Counsel appearing on behalf of the petitioner regarding maintainability of the writ petition, before exhausting the alternative remedy available under the statute, was not, accepted and the petitioner was given liberty to approach the appropriate forum for redressal of his grievance.
18. So far as Section 7-B(5) of the Act is: concerned, it is provided there that no appeal shall lie against the order of the officer rejecting an application for review, but an appeal under this Act shall lie against an order passed under review as if the order passed under review were, the original order passed by him under Section 7-A.
19. Das, learned Counsel submits that since in this case the application for review was, rejected, no appeal lie against such order and in that view of the matter he has approached this Court by way of filing a writ petition challenging both the initial orders passed in the proceeding under Section 7-A of the Act as well as in the proceeding for review under Section 7-B of the Act, he is entitled for the relief which are claimed by him in this writ petition.
20. Keeping in view the paragraphs 10,13, 15 and 17 of the judgment of the Supreme Court in the case of State of H.P. and Ors. v. Gujarat Ambuja Cement Ltd. and Anr. (supra) as well as the decision of this Court in the case of Payal Engineers, as discussed in the paragraphs above, I am of the considered view that once an application for review is disposed of with the observation that ''the application for review under Section 7-B of the Act is not admissible as there is no new fact brought to the notice of the competent authority', the order passed in the proceeding under Section 7-A of the Act remains in full force and effect and since there is an appeal provision against the order passed in the 7-A proceeding, even though the present order passed in the Review application under Section 7-B of the Act indicates that it was not entertained as 'not admissible', the petitioner was always at liberty to challenge the earlier order passed in the proceeding under Section 7-A of the Act, by way of filing an appeal instead of challenging the said order in this writ petition as a second prayer. Furthermore, a plea has been taken by the petitioner is that certain documents were not within his reach when the authority concerned was in seisin of the matter in 7-A proceeding and subsequently those materials, which have some bearing so far as the subject matter of the 7-A proceeding, came to his hand and in that view of the matter he had no other option except filing an application for review of the order. But as it appears, the petitioner had stated nothing with regard to existence of those documents nor in any manner referred to those documents in his show cause filed in the 7-A proceeding or during the course of the hearing of 7-A proceeding not filed the same along with his application for review. The petitioner has also taken a plea that certain documents were not before him and the same came to his hand after disposal of the 7-A proceeding and also after filing of the review application. Therefore, he has filed another application on the last date of hearing of the Review Application, i.e. on August 29, 2006 for taking into consideration of some documents, without enclosing copies of those documents along with the application or producing the same at the time of hearing. As such the action of the petitioner clearly indicates that as if he was doing all these things with some ulterior motive and may be with the sole purpose of delaying the proceeding and not to comply the final order passed in 7-A proceeding. The appellant in an appeal is also at liberty to file an application for bringing certain additional evidence and once that application is filed, the appellate authority ought to have considered and disposed of the said application on its, merit. The scope for interference in appeal is also much wider than in a petition for review. Petitioner in this case instead of-approaching the appellate authority in a regular appeal along with an application for additional evidence, if any, enclosing supporting documents, has filed, the application for review of the order basing on certain new documents,; without enclosing copies of those documents or' filing the same by the date of hearing of the review application for the reasons best known to him. As such all these actions of the petitioner may be only with the purpose of frustrating the; order passed in 7-A proceeding. Furthermore it may not be out of place to mention here that a copy of the application for review has also not been filed along with the writ petition for reference.
21. In view of the above, I am of the considered view that no illegality or irregularity has been committed by the concerned authority in not entertaining the review application filed, by the petitioner as 'not admissible' vide order-dated August 29, 2006 (Annexure-9) since the documents referred to in the review application were not referred to in the show cause filed nor were produced at the time of hearing of the 7-A proceeding or 7-B proceeding and those documents were completely new documents introduced at a belated stage, by filing a petition on August 29, 2006 (Annexure-8), without supporting documents i.e. on the last date of disposal of the review petition, on which date the final order was passed.
22. Considering the submissions made by the learned Counsel for the respective parties and after going through the contents of the writ petition, keeping in view all the facts and circumstances as well as paragraphs 10, 13, 15 and 17 of the judgment of the Supreme Court in the case of State of H. P. and Ors. v. Gujarat Ambuja Cement Ltd. and Anr. (supra), I do not find any illegality or irregularity or an error of law in the impugned order passed in the review application, which would call for any interference by this Court. As indicated earlier, the scope for interference is wider in an appeal, but not in an application for review. In an appeal, a petition can be filed for additional evidence along with copy of the documents, which are required to be considered. Furthermore the petitioner cannot challenge the order passed in the 7-A proceeding at a belated stage, in this writ petitioner, while challenging the order passed in the review petition and make a prayer for quashing both the orders, rather he should have confined his prayer in respect of one order only.
23. The writ is accordingly dismissed. However, this order shall not be a bar for the petitioner to approach the appellate authority, in accordance with law, if so advised, by way of filing a regular appeal.