1. This appeal under Clause 15 of the Letters Patent has been filed by the Regional Provident Fund Commissioner challenging the original order passed by the learned Single Judge dated 07.03.2014 in the captioned writ petition being Special Civil Application No.8574 of 2013, whereby, the learned Single Judge had dismissed the petition. On appellant preferring review application before the learned Single Judge, by an order of 7th March, 2017, the learned Single Judge rejected the review application too, therefore, the present appeal.
2. Facts in brief indicate that the competent authority under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 issued notice to the respondent no.2 in the original petition i.e. M/s. Air Control & Chemical Engineering Company Limited that as it was covered under the provisions of EPF Act and liable to pay the amount of pension fund / deposit link insurance fund and administrative charges for the period from November, 2002 to February, 2010 and that there was a belated payment, the respondent no.2 in the petition was liable to pay damages under Section 14 B of the Act. A notice was issued and an order dated 16.2.2012 was passed by the Regional Provident Fund Commissioner (Damages) quantifying damages which the employer / respondent no.2 was obliged to pay. Aggrieved by the order of Regional Provident Fund Commissioner- II, (Damages) Section, the original respondent no.2-employer challenged the same before the Appellate Authority i.e. Employees’ Provident Fund Appellate Tribunal by filing an appeal. The Appellate Authority by an order dated 3.12.2012 set aside the order of Regional Provident Fund Commissioner (Damages). Aggrieved by the order a petition was filed by the Regional Provident Fund Commissioner, the present appellant assailing the order of the Tribunal before the learned Single Judge. By the order impugned herein, learned Single Judge considering the provisions of Section 14 B of the EPF Act upheld the preliminary objection of the respondent no.2 in the petition holding that the petitioner had no locus standi to challenge the order before the Appellate Tribunal as, in the opinion of the learned Single Judge statutory authority which functions as an Adjudicating Authority and discharges a quasi judicial powers cannot claim for itself either a locus standi or a litigative interest to challenge the order of the Appellate Forum which consider its own order.
3. The learned Single Judge held thus:
“5. Proceeding to consider the question, section 14B of the EPF Act under which the petitioner-Regional Provident Fund Commissioner passed order reads as under:
“14B. Power to recover damages.-Where an employer makes default in the payment of any contribution to the Fund, the Pension Fund or the Insurance Fund or in the transfer of accumulations required to be transferred by him under sub-section 92) of section 15 or subsection (5) of section 17 or in the payment of any charges payable under any other provision of this Act or of any Scheme of Insurance Scheme or under any of the conditions specified under section 17, the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the Official Gazette, in this behalf may recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the Scheme:
Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard:
Provided further that the Central Board may reduce or waive the damages levied under this section in relation to an establishment which is a sick industrial company and in respect of which a scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985, subject to such terms and conditions as may be specified in the Scheme.”
5.1 Appeals to the Tribunal is provided for under Section 7I of the Act. The said provision is as under: “7-I. Appeals to Tribunal-(1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub-section (4) of section 1, or section 3, or sub- section (1) of section 7A, or section 7B except an order rejecting an application for review referred to in sub-section (5) thereof, or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order.
(2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.”
5.2 Appeal under Section 7I is contemplated at the instance of any person aggrieved by a Notification of the Central Government or any order passed by the Central Government or any authority specified in the Section. It includes order passed by the Central Government or any authority under Section 14B of the Act. Any person aggrieved by the said order may prefer appeal.
6. The contention that quasi judicial authority would not have locus to challenge the appellate order which considered its own order, has substance. The said principle is well recognised. Apart the said aspect, the very language of Section 14B signify that petitioner was only a delegatee of the Central Government while exercising powers under the said provision. As could be seen from Section 14-B of the Act, the powers exercisable under the said provision are conferred on Central Provident Fund Commissioner. In the alternative, such powers could be vested in an officer who may be specified by the Central Government in the Notification in Official Gazette. When the Central Government names the authority by way of Notification, such authority or officer acts as an delegatee of the Central Government. In such case, the repository of powers would be the Central Government. As a delegatee, the specified authority cannot claim an independent status.
7. In other words, from the reading of the provision in Section 14B, either the Central Provident Fund Commissioner or officer specified in the Gazette by the Central Government would be the authority in whom powers are vested, and either the Central Provident Fund Commissioner or the Central Government could be said to be the person aggrieved for preferring appeal. The petitioner herein-Regional Provident Fund Commissioner acted as an authority so specified by the Central Government for the purpose of discharging functions under Section 14-B. The petitioner therefore was discharging the functions of the Central Government as an adjudicatory authority under Section 14-B. The petitioner delegatee therefore did not have a locus standi to file the petition.
7.1 In Mohtesham Mohd. Ismail Vs Special Director, Enforcement Directorate and another [(2007) 8 SCC 254] [LQ/SC/2007/1222] , the question considered by the Supreme Court was whether a Special Director appointed under the Foreign Exchange Regulation Act, 1973 himself can prefer appeal under Section 54 of the said Act before the High Court, against an order passed by the Foreign Exchange Regulation Appellate Board. The Apex Court held as under:
“An adjudicating authority exercises a quasijudicial power and discharges judicial functions. When its order had been set aside by the Board, ordinarily in absence of any power to prefer an appeal, it could not do so. The reasonings of the High Court that he had general power, in our opinion, is fallacious. For the purpose of exercising the functions of the Central Government, the officer concerned must be specifically authorised. Only when an officer is so specifically authorised, he can act on behalf of the Central Government and not otherwise. Only because an officer has been appointed for the purpose of acting in terms of the provisions of the Act, the same would not by itself entitle an officer to discharge all or any of the functions of the Central Government. Even ordinarily a quasi- judicial authority cannot prefer an appeal being aggrieved by an dissatisfied with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Central Government, should act as an impartial tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board.”(para 16).
7.2 The above principle applies squarely in the present case. The petitioner-Regional Provident Fund Commissioner was an authority specified by the Central Government and functioning accordingly for the purpose of exercising powers under Section 14B of the EPF Act could not have a locus standi to challenge the order of the EPF Appellate Tribunal, which considered his order. The petitioner Authority was an adjudicatory authority who exercised power of quasi judicial nature to determine the lis. He himself could not have claimed any lis in the subject matter. For the petitioner Authority, no locus standi is available to challenge the order of the Appellate Tribunal. The petitioner Authority cannot fall within the purview of “any person aggrieved” at the instance of whom appeal under Section 7I would lie.
8. A person may have a locus standi to challenge any decision of any Forum or Court of law, or he may not have such locus standi. A person may have locus standi without having any litigative interest. There is a subtle distinction between “to have a locus standi” and “to have a litigative interest”. For instance, in the matters of Public interest litigation the petitioner is perceived in law to have been clothed with a locus standi even though, a public interest litigant cannot be said to have a litigative interest stricto sensu. The statutory Authority which functions as Adjudicating Authority and discharge quasi judicial powers, cannot claim for itself either a locus standi or a litigative interest to challenge the order of the Appellate Forum/Court which considers its own order.
9. For the foregoing discussion and reasons, the petition is liable to be dismissed on this point alone. As the preliminary point is held in favour of the respondent, no further aspects are required to be gone into.”
4. The Review Application was also not entertained.
5. Assailing the order of the learned Single Judge, Mr. A V Nair, learned counsel for the appellant would make following submissions:
5.1. Relying on the additional affidavit filed by one Harpal Singh Kandara- the Assistant Provident Fund Commissioner (Legal), Mr. Nair would submit that essentially though the petition was preferred in the name of Regional Provident Fund Commissioner, it was so as delegatee of the Central Board of Trustees. Assuming without admitting that the adjudicating authority was RPFC-II(Damages) it was factually incorrect that the petition was so preferred by the adjudicating authority.
5.2. Drawing our attention to the Notification dated 17.04.2002 issued in exercise of powers conferred by Section 14 B of the Act, he would submit that the penalty proceedings were as such not quasi judicial and the delegatee of the Central Government i.e. Regional Provident Fund Commissioner and the Assistant Provident Fund Commissioner would pass orders so empowered under the Notification.
5.3. Mr. Nair would submit that the learned Single Judge committed an error in coming to the finding that in accordance with the provisions of Section 14 B of the Act and reading thereof it was the Central Provident Fund Commissioner or a Central Government to be the person aggrieved for preferring the appeal and that the petitioner discharging the function of the Central Government under Section 14 B of the Act was a delegatee and therefore, could not file the petition. Pressing into service the provisions of Section 5(C) which provides for constitution of the Board of Trustees under Section 5(A) and 5(B) of the Act, he would be submit that essentially it was the board of trustees which as body corporate had the power and could sue in its own name and therefore, the finding of the learned Single Judge was erroneous. Merely because, the Employees Provident Fund Appellate Tribunal in accordance with Rules i.e. Gujarat High Court Rules and the Tribunal Procedure Rules of 1997, particularly, Rule 11(8)(ii) the parties were so arrayed would not disentitle the petitioner to file a petition.
5.4. Mr. Nair would draw support from the decision which otherwise the learned Single Judge relied on to dismiss the petition and submit that as so set out in the last part of the paragraph 16 of the decision of the Supreme Court in the case of Mohtesham Mohd. Ismail Vs Special Director, Enforcement Directorate and another reported in (2007) 8 SCC 254, [LQ/SC/2007/1222] when,an adjudicating authority was conferred with the powers as was so done by virtue of Notification especially item 119 in the resolution, by virtue of such an authority the petition was maintainable.
5.5. In support of his submission, Mr. Nair would rely on the decision of the Division Bench of the Patna High Court in the case of M/s. S K Nasiruddin Biri Merchants Ltd. vs. Assistant Provident Fund Commissioner, Regjonal Office, Employees Provident Fund Organization rendered in Letters Patent Appeal No.543 of 2015, which in Mr. Nair’s submission had considered the decision in the case of Mohtesham Mohd. Ismail (supra) holding that the writ petition was maintainable. Reliance was also placed on the judgment of Single Judge of Patna High Court in the case of Central Board of Trustees, Employees Provident Fund Organization through the Assistant Provident Fund Commissioner (Legal) vs. Kathihar Medical College through its Chairman-cum- Managing Director reported in 2019 3 PLJR 673 [LQ/PatHC/2019/1052] and the decision of the Coordinate Bench of this Court which albeit did not decide the question of maintainability of a petition. The Division Bench in the case of Assistant Provident Fund Commissioner vs. Sheth B M Prathmik Shala and others rendered in Letters Patent Appeal No.532 of 2019 dated 10.06.2022 had on merits entertained the appeal, and therefore, Mr. Nair would submit that the present appeal also be entertained and the order of the learned Single Judge be reversed.
6. Mr. Dipak Dave, learned counsel appearing for the respondent no.2 would support the order of the learned Single Judge. Reading the provision of Section 14 of the Act, Mr. Dave would submit that it is apparent from reading such provision that there has to be an authorization by the Central Government for recovery of penalty by way of damages and that such power is a quasi judicial power. Admittedly, though such a notification is issued, merely by virtue of item no.15 in the minutes of 119 meeting, which provides for delegation of powers, the delegation has to be in favour of officers to defend all legal proceedings by or against the Central Board of Trustees, Employees Provident Fund, which in the present case is absent. He would also rely on the judgment which, the learned Single Judge has extensively referred to while dismissing the petition.
6.1. He would also rely on the decision of the Coordinate Bench of this Court rendered in Letters Patent Appeal No.1261 of 2012 dated 30.11.2022, which following a Division Bench decision in IA No.1 of 2021 vide an order dated 21.01.2022 had dismissed the appeal confirming the order of the learned Single Judge wherein petition was held as not maintainable.
7. Having considered the submissions made by the learned counsel for the respective parties, at the cost of repetition, we would like to reproduce the provision of Section 14 B of the EPF Act, which reads as under:
“14B. Power to recover damages.-Where an employer makes default in the payment of any contribution to the Fund, the Pension Fund or the Insurance Fund or in the transfer of accumulations required to be transferred by him under sub-section 92) of section 15 or subsection (5) of section 17 or in the payment of any charges payable under any other provision of this Act or of any Scheme of Insurance Scheme or under any of the conditions specified under section 17, the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the Official Gazette, in this behalf may recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the Scheme:
Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard:
Provided further that the Central Board may reduce or waive the damages levied under this section in relation to an establishment which is a sick industrial company and in respect of which a scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985, subject to such terms and conditions as may be specified in the Scheme.”
8. Evidently reading the Section would indicate that the Regional Provident Fund Commissioner-Damages, the author of the order dated 16.2.2012 had passed an order imposing damages only as a delegatee of the Central Government while exercising powers under Section 14 B of the Act. The learned Single Judge while relying on the decision of the Hon’ble Supreme Court in the case of Mohtesham Mohd. Ismail (supra) has extensively referred to para 16 of the aforesaid judgment, which indicates that when an adjudicating authority exercises quasi judicial powers, ordinarily in absence of any power to prefer an appeal, such order cannot be challenged by such quasi judicial authority. We do not reproduce the paragraph concerned of the judgment of the Hon’ble Supreme Court in the case of Mohtesham Mohd. Ismail (supra) because the same has been reproduced in the body of the judgment of the learned Single Judge which we have in the earlier part of this judgment done so. As far as the reliance placed by the learned counsel for the appellant on the decision of the Patna High Court in the cases of M/s. S K Nasiruddin Biri Merchants Ltd. (supra) and Central Board of Trustees, Employees Provident Fund Organization through the Assistant Provident Fund Commissioner (Legal) (supra), what is evident is that the petition was preferred by the Central Board of Trustees, which is not the case here. In fact, in the present case the petition is preferred by the Regional Provident Fund Commissioner and affirmed by the Assistant Provident Fund Commissioner (Legal).
9. Even otherwise, the issue which should not hold us much longer in light of the fact that essentially first in line, a Coordinate Bench of this Court by a CAV IA Order dated 21.01.2022, wherein, the Regional Provident Fund Commissioner –II had moved the Civil Application seeking prayer for amendment by substituting the name of the appellant, a Division Bench of this Court considering the decision of the Hon’be Supreme Court in the case of Mohtesham Mohd. Ismail (supra) held thus:
“5.1 In Mohtesham Mohd. Ismail v. Special Director, Enforcement Directorate [(2007) 8 SCC 254] [LQ/SC/2007/1222] , the Supreme Court dealt with the issue of maintainability of an appeal by the Special Director with reference to Sections 4, 9 and 54 of the Foreign Exchange Regulation Act, 1973. Special Director under the Act had preferred appeal before the High Court against order passed by the Foreign Exchange Regulation Appellate Board. There was a Notification providing for the purpose of exercise of the Central Government, the officer must be specially authorised, however in absence of such Notification giving authorisation, it was held that the Director was not empowered to prefer appeal on behalf of the Central Government.
5.1.1 The underlying principle highlighted was that the Special Director was an Adjudicating Authority exercising quasi judicial power and in absence of specific power and authorisation, appeal could not have been preferred by him with such capacity. In that case, the question was raised before the High Court with regard to maintainability of appeal at the instance of the respondents on the premise that it was the Central Government who should prefer appeal and not the Adjudicating Authority itself. The High Court opined that as the respondent Special Director was appointed under the Act and in terms of the provisions under the Act he was authorised to enforce the statutory provisions, appeal at his instance would be maintainable.
5.1.2 The Supreme Court specifically ruled that Adjudicating Authority would not be entitled to prefer appeal.
“An adjudicating authority exercises a quasi-judicial power and discharges judicial functions. When its order had been set aside by the Board, ordinarily in absence of any power to prefer an appeal, it could not do so. The reasonings of the High Court that he had general power, in our opinion, is fallacious. For the purpose of exercising the functions of the Central Government, the officer concerned must be specifically authorised. Only when an officer is so specifically authorised, he can act on behalf of the Central Government and not otherwise. Only because an officer has been appointed for the purpose of acting in terms of the provisions of the Act, the same would not by itself entitle an officer to discharge all or any of the functions of the Central Government. Even ordinarily a quasi-judicial authority cannot prefer an appeal being aggrieved by an dissatisfied with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Central Government, should act as an impartial tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board.” (para 13)
5.2 While holding as above, the Supreme Court referred to and relied on the decision of the Madras High Court in Director of Enforcement, Madras v. Rama Arangannal [AIR 1981 Madras 80] wherein the Madras High Court held thus,
“4. On the question as to the maintainability of the appeal, it is seen that the Explanation to Section 54 of the Foreign Exchange Regulation Act 1973 treats only the Central Government as an aggrieved party for the purpose of filing an appeal to the High Court in respect of orders passed by the Foreign Exchange Regulation Appellate Board under that section. Therefore, only the Central Government can file and prosecute an appeal against the order of the Appellate Board, and not any other authority, In this case, the appeal has been filed by the Director of Enforcement, who Is the initial authority who passed the adjudication order against the respondents and whose order has been set aside by the Appellate Board on an appeal filed by them. Therefore, the Director of Enforcement cannot be said to be aggrieved by the order of the Appellate Board merely because the Appellate Board has set its order of adjudication aside. “
5.3 In District Collector v. Bagathi Krishna Rao [(2010) 6 SCC 427] [LQ/SC/2010/590] , the Apex Court laid down that appeal filed by the District Collector, Revenue Officer and District Forests Officer as against judgment in the suit would not be said to be maintainable and that the State of Andhra Pradesh was the necessary party. Decision of Mohtesham Mohd. Ismail (supra) was relied on by the High Court of Andhra Pradesh in Assistant Provident Fund Commissioner, Visakhapatnam v. Employees’ Provident Fund Appellate Tribunal [2013 (2) LLJ 82 [LQ/TelHC/2012/858] ], to rule that Assistant Provident Fund Commissioner could not have called in question the order passed in appeal which was against its own order.
5.4 The Bombay High Court in Assistant Provident Fund Commissioner v. Nirmitee Holidays Private Limited [2011 LLJ (2) 469] reiterate the proposition in the context of the Employees’ Provident Fund & Miscellaneous Provisions Act, 1952 to hold that Assistant Provident Fund Commissioner could not have challenged the order passed by the Employees’ Provident Fund Appellate Tribunal, New Delhi in an appeal against the order which had exercised quasi judicial function in passing the order under Section 7A of the Act.
5.5 All the above decisions came to be considered by this Court in Regional Provident Fund Commissioner v. Employees Provident Fund Appellate Tribunal [2014 (3) GLR 2646 [LQ/GujHC/2014/491] ] to hold that Regional Provident Fund Commissioner lacked the locus standi to challenge the order passed by the Appellate Tribunal which interfered in the order passed by the Regional Provident Fund Commissioner, as the Regional Provident Fund Commissioner functions in passing the order as Adjudicatory Authority under Section 14B of the Act. He could not be, therefore, treated as ‘aggrieved person’ within the concept of Section 7I of the Act.
5.5.1 The Court observed thus,
“6. The contention that quasi judicial authority would not have locus to challenge the appellate order which considered its own order, has substance. The said principle is well recognised. Apart the said aspect, the very language of Section 14B signify that petitioner was only a delegatee of the Central Government while exercising powers Section 14-B of the Act, the powers exercisable under the said provision are conferred on Central Provident Fund Commissioner. In the alternative, such powers could be vested in an officer who may be specified by the Central Government in the Notification in Official Gazette. When the Central Government names the authority by way of Notification, such authority or officer acts as an delegatee of the Central Government. In such case, the repository of powers would be the Central Government. As a delegatee, the specified authority cannot claim an independent status.”
5.5.2 Applying the principles in Mohtesham Mohd. Ismail (supra) it was finally laid down,
“7.2 The above principle applies squarely in the present case. The petitioner-Regional Provident Fund Commissioner was an authority specified by the Central Government and functioning accordingly for the purpose of exercising powers under Section 14B of the EPF Act could not have a locus standi to challenge the order of the EPF Appellate Tribunal, which considered his order. The petitioner Authority was an adjudicatory authority who exercised power of quasi judicial nature to determine the lis. He himself could not have claimed any lis in the subject matter. For the petitioner Authority, no locus standi is available to challenge the order of the Appellate Tribunal. The petitioner Authority cannot fall within the purview of “any person aggrieved” at the instance of whom appeal under Section 7I would lie.”
5.5.3 The proposition of law was stated as under.
“8. A person may have a locus standi to challenge any decision of any Forum or Court of law, or he may not have such locus standi. A person may have locus standi without having any litigative interest. There is a subtle distinction between “to have a locus standi” and “to have a litigative interest”. For instance, in the matters of Public interest litigation the petitioner is perceived in law to have been clothed with a locus standi eventhough, a public interest litigant cannot be said to have a litigative interest stricto sensu. The statutory Authority which functions as Adjudicating Authority and discharge quasi judicial powers, cannot claim for itself either a locus standi or a litigative interest to challenge the order of the Appellate Forum/Court which considers its own order.”
6. Thus, the principle is that the authority which has adjudicated the lis and has passed the order in exercise of quasi judicial powers vested in it will not be entitled to challenge such order before the higher court. Neither such authority has locus standi nor it can said to have litigative interest to call in question the order where the dispute was adjudicated by itself exercising quasi judicial powers.
7. In view of the above position of law and the discussion supplied, the prayers in these Civil Applications cannot be granted. All the Civil Applications are summarily dismissed.”
10. That the order of the Coordinate Bench of this Court was followed by the Division Bench while dismissing the Letters Patent Appeal No.1261 of 2022 by its order dated 30.11.2022 extensively quoting the order of the Coordinate Bench which we have quoted herein above.
11. The learned Single Judge while dismissing the petition had the occasion to rely on the judgment of the Division Bench of the Kerala High Court in the case of Administrator, Cosmopolitan Hospital Private Limited vs. Regional Provident Fund Commissioner reported in 2015 Law Suit (Ker) 2049 wherein the Division Bench of the Kerala High Court in para 9 to 11 held as under:
“[9.} Another important aspect, which has come to the notice of this Court is that, there is an inherent defect on the part of the 1st respondent in having preferred the original petition before this Court, challenging Ext.P4 order passed by the second respondent Tribunal. This is for the reason that, the 1st respondent happened to be the 'adjudicating authority', who passed Ext.P1 order mulcting the liability upon the appellant herein. The said order passed by the 1st respondent was subjected to challenge by the appellant, by filing a statutory appeal before the second respondent/Tribunal. After considering the facts and figures and the relevant provisions of law, the second respondent/Appellate Tribunal found that, the order passed by the 1st respondent was not liable to be sustained and accordingly, the said order was set aside as per Ext.P4. The question to be considered is whether the 1st respondent, who happened to be the 'adjudicating authority', could have moved the original petition before this Court, challenging the order passed by the higher authority/ Appellate Tribunal. The position can be answered only in the 'negative' as discussed below.
[10] A similar order involving the Provident Fund Department (when the original order passed by the Assistant Provident Fund Commissioner, was subsequently intercepted by the Appellate Tribunal) came to challenged before this Court by the Regional Provident Fund Commissioner. A preliminary objection was raised from the part of assessee/Employer of the establishment as to the maintainability of the original petition. Various judgments rendered by the Apex Court were cited across the bar; particularly the ruling rendered by the Apex Court in (Bhopal Sugar Industries Ltd. V. Income Tax Officer, 1961 AIR(SC) 182), Union of India v. K.M.Sankarappa, 2000 AIR(SC) 3678 and (Mohtesham Mohd.Ismail v. Spl.Director, Enforcement Directorate and another, 2007 8 SCC 254) [LQ/SC/2007/1222] , wherein it has been categorically laid down that the 'adjudicating authority' cannot challenge the order passed by the 'higher authority' under any circumstance; which otherwise would undermine the principles of 'judicial discipline'. Following the law declared by the Apex Court, the question was answered by a learned Judge of this Court, as per the decision (Assistant Provident Fund Commissioner v. West Coast Petroleum Agency, 2012 1 KerLT 704), holding that the Departmental authority who passed the order in adjudication, could not have challenged the order passed by the Appellate Tribunal. We affirm the position as above.”
[11] Coming to the case in hand, as discussed above, Ext.P1 order was passed by none other than the 1st respondent herein, whose order was set aside by the second respondent Appellate Tribunal, as per Ext.P4. Going by the law declared by the Apex Court as mentioned above, it was never correct or proper for the 1st respondent to have attempted to defend his own order, by challenging Ext.P4 order passed by the higher authority/Appellate Tribunal. Since there is no dispute regarding the factual sequence, this Court finds that the original petition preferred by the 1st respondent herein, challenging Ext.P4 order passed by the Appellate Tribunal was not liable to be entertained.”
12. Division Bench of the Calcutta High Court in the case of Regional Provident Fund Commissioner vs. Employees Provident Funds Appellate Tribunal reported in 2014 Law Suit(Cal) 1010 faced with the similar issue having considered the decision of the Hon’ble Supreme Court in the case of Mohtesham Mohd. Ismail (supra) and also relying on the decision of the Bombay High Court in the case of Assistant Provident Fund Commissioner vs. Nirmitee Holidays (P) Ltd reported in 2010 Law Suit (Bom) 2352 held as under:
“[8] In the case of Assistant Provident Fund Commissioner, Visakhapatnam v. Employees Provident Fund Appellate Tribunal and Another , Hon'ble Andhra Pradesh High Court specifically held: "
8. The question is whether the petitioner can be said to be an aggrieved person entitled to challenge the order passed by the first respondent. In my opinion, a person can said to be aggrieved, if his interests are adversely affected by adjudication and the said adjudication has deprived him of something to which he had a right. The Assistant Provident Fund Commissioner, Visakhapatnam, who is the petitioner herein, is a quasi-judicial authority entitled to exercise the powers conferred under Section 7A of the Act by following principles of natural justice. He has no role to step into the shoes of the party to a dispute. He is not a party to the lis. All his decisions are subject to the appeals provided under the statute. In Mohtesham Mohd. Ismail v. Special Director, Enforcement Directorate, 2007 8 SCC 254, [LQ/SC/2007/1222] the Supreme Court of India while considering the provisions of Section 54 of the Foreign Exchange Regulation Act, 1973 held as under:
'An adjudicating authority exercises a quasi-judicial power and discharges judicial functions. When its order had been set aside by the Board, ordinarily in Absence of any power to prefer an appeal, it could not do so. The reasonings of the High Court that he had general power, in our opinion, is fallacious. For the purpose of exercising the functions of the Central Government, the officer concerned must be specifically authorized. Only when an officer is so specifically authorized, he can act on behalf of the Central Government and not otherwise. Only because an officer has been appointed for the purpose of acting in terms of the provisions of the Act, the same would not by itself entitle an officer to discharge all or any of the functions of the Central Government. Even ordinarily a quasi-judicial authority cannot prefer an appeal being aggrieved by and dissatisfied with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Central Government, should act as an impartial Tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board."
[9] The Hon'ble Bombay High Court in the case of Asstt. Provident Fund Commissioner, Goa v. Nirmitee Holidays (P) Ltd., Pune held:
"4. Bare perusal of the provisions of the Act and particularly Section 7-A and Section 7-I of the Act discloses that while discharging jurisdiction under Section 7-A of the Act, the petitioner was discharging quasi-judicial functions and the said order was challenged by the respondent in an appeal filed under Section 7-I of the Act and the Appellate Authority by discharging quasi-judicial functions has allowed the appeal preferred by the respondent. Once it is clear that the petitioner was exercising quasi-judicial functions while passing the order which has been set aside by the Appellate Authority, in my considered opinion, it would not be permissible for the petitioner to challenge the order passed by the Appellate Authority reversing his order. Permitting such an exercise would be subversive of judicial discipline. It is well-settled that an authority while discharging quasi-judicial functions cannot challenge the order passed by the Appellate Authority, reversing his/her order "
[10] In the present case, the appellant-petitioner herein while discharging authority and jurisdiction under Section 7A of the Act passed an order in exercise of his quasijudicial power and the said order was challenged before the learned Appellate Tribunal. The said learned Tribunal was pleased to set aside the order passed by the said appellant-petitioner. The appellant-petitioner thereafter, challenged the order passed by the learned Appellate Tribunal by filing the writ petition.
[11] The order passed by the Appellate authority reversing the order passed by the quasi-judicial authority cannot be challenged by the said quasi-judicial authority by filing a writ petition. The appellant-petitioner herein cannot be said to be an aggrieved party since the interests of the said appellant-petitioner could not be affected by the order passed by the learned Appellate Tribunal. The appellant- petitioner herein is not a party to the lis and the decisions of the said authority are subject to the order passed by the Appellate authority under the provisions of the Statute.”
13. In light of the position of law so set out by two Coordinate Benches of this Court following the decision of Division Bench of the Kerala High Court and Calcutta High Court respectively, we see no reason to take view different one taken by the successive Division Bench of this Court.
14. In the facts of case as we are informed at the bar by the learned counsel for the appellant that keeping in view the order of the learned Single Judge and the Division Bench in Appeals, petitions are now being filed in the name of the Central Board of Trustees.
15. Accordingly, we deem it fit to dismiss the present Letters Patent Appeal. The same is accordingly dismissed.
16. In view of the dismissal of the Letters Patent Appeal, connected Civil Application also stands dismissed.
