- (1.) This writ petition is directed against an order of adjudication passed under section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 for the period from 07, 2012 to 2, 2014. The adjudicating authority had determined Rs. 18,54,565 as the amount due and payable by the establishment for the aforesaid period. Mr. Sundarananda Pal, learned senior counsel appearing for the petitioner submits that the impugned order is perverse. The petitioner challenges the very basis of the invocation of the provision of the Act insofar as the establishment is concerned. Mr. Pal has relied upon the order passed by the learned single judge of this court in earlier proceeding in WP 15480(W)/2013 and submitted that the show-cause notice issued by the provident fund authorities for failure to submit returns and for non-remittance of provident fund amount dues since 2009 has been set aside. It appears that in the said proceeding the show-cause notice was set aside by holding that the provident fund authorities cannot hold the petitioner responsible for non-filing of the returns and for nonpayment of the provident fund amount from the said defaulting company for the period of default mentioned in the show-cause notice.
(2.) Mr. S.C. Prasad, learned advocate appearing for the provident fund authorities submits that an appeal has been preferred and the said appeal is still pending. The subject-matter of the writ petition is the order of adjudication for the period after the date of purchase. The adjudicating authority on factual examination of the matter adjudicated that a sum of Rs. 18,54,565 was due and payable on account of the aforesaid period. In determining the said issue the adjudicating authority has taken into consideration the order passed in the earlier writ petition and determined the amount for the period not covered under the said order, which would be reflected from the order itself and the adjudicating authority says that this determination is for the period from seventh quarter 2012 to second quarter 2014. The question is whether the establishment of the petitioner could be considered as a new establishment under the provisions of the Act and could claim an exemption and if not whether the determination of liability suffers from any illegality. This is a matter which is to be decided in an appeal as there is an efficacious alternative remedy available to the petitioner. Moreover, it involves examination of facts which cannot be conveniently decided in a writ petition. There is a distinction between an order without jurisdiction and an error within jurisdiction. An error within jurisdiction is capable of being corrected by an appeal. An order without jurisdiction although would be appealable could be interfered with in this jurisdiction. The writ petition involves examination of disputed questions of facts which can only be conveniently decided by the appellate forum. Whether the order reflects the correct and true picture with regard to the number of employees being engaged by the establishment or not is a matter which is to be raised and decided in the appeal on production of proper materials and evidence. The order prima facie does not show suffers from any jurisdictional error. In my view, having regard to the fact that the statute provides for an efficacious alternative remedy, the petitioner shall avail such remedy and it would be open for the petitioner to raise all points including the points raised in the writ petition. In the event the appeal is preferred on or before 31st July, 2014 the appellate authority shall not insist for any application for condonation of delay and shall decide the appeal on merits subject to fulfilment of other statutory conditions. It would be open for the petitioner to pray for reduction and/or waiver of the pre-deposit at the time of preferring the appeal and the appellate authority shall consider such application, if made, in accordance with law. There shall be an unconditional stay of enforcement of order till 31st July, 2014. In the event, the appeal is preferred, it would be for the appellate authority to decide with regard to the continuation of the order of injunction passed by this court. The writ petition is accordingly disposed of.;