Navin Sinha, J. (Oral) - I.A. No. 1997 of 2013 has been filed to condone the delay of approximately 154 days in the filing of the Appeal. Having heard counsel for the parties and the reasons for the delay, in the interest of justice, we condone the same and take up the Appeal for disposal on merits.

2. In view of the nature of order to be passed, we refrain from considering on merits the submissions on behalf of the parties lest it may be prejudice either party. All questions of facts and law are therefore left open to be agitated by the parties before the Appellate Tribunal forum.

3. A proceeding was drawn up under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter called "the Act") against the respondent for determining the amount due. After an enquiry, with due opportunity to the respondents, the dues payable under Section 7A and 7Q of the Act were determined by order dated 30.06.2006.

4. The respondent challenged the same in C.W.J.C. No. 9102 of 2006. The learned Single Judge opined that fixation of liability "on a begotten kind of evidence" was not sustainable. The order was set aside and any recovery made was directed to be refunded.

5. Learned counsel for the Appellants submitted that an order passed under Section 7A is Appealable before the Tribunal under Section 7-I. The respondent could not have preferred a writ petition by-passing the statutory alternate remedy. The learned Single Judge should have appropriately declined jurisdiction and directed the respondent to approach the Tribunal. There has been no violation of the principles of natural justice or assumption of jurisdiction not vested in the law. Reliance has been placed on 2000 (2) PLJR 295 (DB) (Alcatel Modi Net Work System Limited v. State of Bihar) to submit that objection with regard to non maintainability of the writ petition on grounds of an alternate statutory remedy can well be raised in Appeal even if it had not been raised before the learned Single Judge, it being a plea of jurisdiction going to the root of the matter.

6. Learned counsel for the respondent submitted that the writ petition was filed on 28.07.2006. It has remained pending before this Court till disposal on 20.07.2012. Pleadings had been exchanged and therefore the learned Single Judge committed no error in dealing with the matter on merits. Reliance is placed on 1998 (2) PLJR 148 (DB) (M/s Tis Fab Limited v. The State of Bihar), 2002 (1) PLJR 142 (SC) (State of Bihar v. Jain Plastics & Chemicals Limited), 2002 (2) PLJR 553 (DB) (Kanhaiya Lal v. The State of Bihar), and 2004 (2) PLJR 621 (DB) (Om Prakash Singh v. The State of Bihar). The objection cannot be taken in Appeal as it was not raised before the learned Single Judge. The original records had also been called for by the Court and examined as mentioned in the order. In the facts of the case, considering the passage of time, exchange of pleadings and consideration of the original records, the present is not a fit case for relegating the respondent to the alternative statutory remedy and it shall be onerous.

7. We have considered the submissions on behalf of the parties.

8. The extra ordinary discretionary jurisdiction under Article 226 though wide has been developed by judicial precedents to be tempered with a degree of self restraint by the Court. In an appropriate case, the writ jurisdiction may not be exercised even if it may be proper to be exercised. Disinclination to exercise the extra ordinary discretionary jurisdiction when a statutory alternate remedy is available, is a self imposed restraint by the Court. In appropriate cases where there has been violation of the principles of natural justice or the proceedings are completely without jurisdiction apparent on the face of it, notwithstanding the availability of an alternative remedy, the extra ordinary discretionary jurisdiction can still be exercised. It not being a Rule of Law, the exercise and manner of discretion shall naturally depend on the facts and circumstances of each case.

9. Alike the question of limitation, whether it be raised as a defence or not, it shall be the solemn duty of the Court to examine if the application is maintainable and not barred by limitation, similarly it is the solemn duty of the writ court to also examine if there is a statutory alternate remedy and whether there are compelling circumstances justifying the maintainability of a writ application directly notwithstanding the same, even if no objection is raised in that regard.

10. The availability of an alternative statutory remedy to file an Appeal with a condition for deposit of any specified part of the assessment has also been held not to be an onerous alternate remedy to justify entertaining the writ application directly.

11. Learned counsel for the Appellant has aptly relied upon Alcatel Modi (supra) observing at paragraphs 5 and 7 as follows :-

"5. In so far as this plea is concerned, the petitioner has filed a petition in the High Courts prerogative writ jurisdiction. An objection has been taken in the counter affidavit, already, that if the assessment order be illegal, there is a clear cut recourse to an alternate remedy by way of an appeal under Section 45 of the Act available to the petitioner. On this proposition, it was vehemently argued that once the petition had been accepted at the admission stage, the respondents are barred from raising a plea of alternate remedy and challenging the merits of the contention raised in the petition and the assessment order does not hold and stands negatived as the jurisdiction is of the authority under the Central Sales Tax Act, 1956. The court is not inclined to accept this suggestion that the respondents may not raise the plea of alternate remedy. Such a plea may be taken at any time as it is a plea of jurisdiction in itself which goes to the root of the matter.

7. It is well known that a writ jurisdiction of the High Court is not available in generality when the Statute itself has provided an alternate remedy of an appeal. May be, the provision which be the alternate remedy from the business point of view may be irksome and the present assessee may be required to deposit an amount, 20 per cent, before filing the appeal. But, the legislature has structured the Statute, thus. The petitioner may take recourse to an appeal under Section 45 of the Act and may contend whatever he contends before appellate authority. The petitioner is relegated to take recourse to an alternate remedy under section 45 of the Act."

12. The Act provides for institution of Provident Fund, Pension Fund and Deposit Linked Insurance Fund for Employees in Factories and other establishments. It applies to any Factory/Industry mentioned in Schedule-I in which 20 or more persons are employed or any other establishment employing 20 or more persons as may be notified by the Central Government in the Official Gazette. The Act is a beneficial provision for employees. Section 6A provides for an Employees Pensions Scheme, Section 6C provides for Employees Deposit Linked Insurance Scheme. Section 7A provides for determination of money due from employers. In the inquiry to be held under the provision, the Officer conducting the inquiry has been vested with the powers of a Court under the Code of Civil Procedure trying a suit in respect of enforcing attendance of witnesses or examination on oath, requiring discovery and production of documents, receiving evidence on affidavit and issuing commission for examination of witnesses. No order determining liability can be passed unless the employer concerned has been given a reasonable opportunity of representing his case. Even if an ex parte order is passed against the employer, he has a statutory right to apply for setting aside the same within three months from the date of communication of the order and the statutory authority has sufficient power if satisfied to set aside his own earlier order and proceed afresh. Section 7-B provides for review of orders passed under Section 7-A. Section 7-D provides for Constitution of an Employees Provident Funds Appellate Tribunal. An appeal lies to the Tribunal under Section 7-I against an order passed under Section 7-A. The Tribunal has the power to regulate its own procedure under Section 7-J. A person preferring an Appeal to the Tribunal can appear either in person or take the assistance or legal practitioner as provided under Section 7-K. The Tribunal has been given wide power under Section 7-L to pass orders as it may think fit either confirming, modifying or annulling the order appealed against, it may refer the case back to the authority with directions if considered necessary and direct fresh adjudication including taking of additional evidence. The Tribunal additionally has powers to rectify any mistake apparent from the records from the date of its order for a period of five years if it is brought to its notice by the parties to the Appeal. The Tribunal can also enhance the amount as may have been determined but not without reasonable opportunity. Under Section 7-M orders passed by the Tribunal are final.

13. The review under Section 7-B or an Appeal under Section 7-I can be preferred within such time as may be prescribed under the Employees Provident Funds Appellate Tribunal (Procedure) Rules-1997 (hereinafter called the Rules). Rule 7 provides that the Appeal can be filed within 60 days from the date of issue of the order. If satisfied the Tribunal can extend the period by further 60 days. The person preferring the Appeal apart from depositing the statutory fee is required to deposit 75% of the amount due from him as determined under Section 7-A. Rules 8 and 9 provide the manner in which the Appeal is to be presented and the nature of documents required to be annexed. There is a complete procedure for issuance of notice, filing of reply, fixation of day of hearing, calendar of cases, the manner in which the Appeal is to be dealt on default by the Appellant, ex parte hearing and disposal of the Appeal, Substitution of legal representatives, adjournment, and communication of order to the parties etc.

14. The Act and the Rules framed thereunder are therefore a complete code with regard to determination of dues from an employer, inquiry on facts, remedy to the aggrieved, if dissatisfied with the determination.

15. In the present case, the respondent did not allege that he had not been heard or that he had been denied reasonable opportunity of presenting his case. The writ petition therefore did not fall in the category of those cases which would be maintainable notwithstanding the availability of an alternate statutory remedy.

16. The summoning of official records in a routine manner unless malafides be alleged or there be strong reasons for the same was noticed in (1975) 3 SCC 602 [LQ/SC/1974/395] (State of Bihar v. Asis Kumar Mukherjee) (Dr) observing as follows :-

"20. There is some force in the grievance of Counsel for the State that the Court should not ordinarily call for cabinet papers and start scrutinising the notings and reports of the various officers merely because a writ petition challenging the order has been made. When a writ of certiorari is moved, the Court has the power to call for the record, but in cases where mala fides is not alleged or other special circumstances set out, sensitive materials in the possession of Government may not routinely be sent for. The power of the Court is wide but will have to be exercised judicially and judiciously, having regard to the totality of circumstances, including the impropriety of every disgruntled party getting an opportunity to pry into the files of Government. Of course, acts of public authorities must ordinarily be amenable to public scrutiny and not be hidden in suspicious secrecy. We are not satisfied that the High Court in this case should necessarily have looked into the cabinet papers and back records,."

17. We are not sanguine that jurisdiction can be assumed under Article 226 despite the availability of an alternate statutory remedy without any finding why the Court was satisfied to entertain it directly. Mere calling for the original records straightway by itself cannot be sufficient justification for the same unless and until reasons are first recorded for assuming the first jurisdiction. In the present case, the records had undoubtedly been called for. It was stated to have been "examined meticulously", but there is no discussion and finding as to what were the materials discovered by the Court from the original records to come a reasoned conclusion why the amount determined was not sustainable, and that the alternate statutory remedy was not efficacious.

18. The refusal to entertain a writ petition by passing alternate statutory remedy was considered in (1964) 6 SCR 654 (Thansingh Nathmal v. Supdt. of Taxes) observing :-

"7 The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."

19. In (1983) 2 SCC 433 [LQ/SC/1983/108] (Titaghur Paper Mills Co. Ltd. v. State of Orissa) noticing the scheme of the Act it has been observed :-

"11. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage :

"There are three classes of cases in which a liability may be established founded upon statute.. But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.. the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

20. In M/s Tis Fab (supra) it has simply been observed that if the writ petition was entertained at the appellate stage and affidavits exchanged it would not be appropriate to dismiss it on the ground of alternate remedy. These observations cannot be seen in the void but have to be considered in the background that the Court in view of the subsequent events which had taken place thought it fit to entertain the same. Moreover, it was the specific case of the petitioner as noticed in paragraph-6 of the judgment that neither any notice nor any opportunity of being heard had been given before the impugned order was passed. In Kanhaiya Lal (supra) the certificate proceedings against the Managing Director was held to be totally without jurisdiction in absence of the Company itself being impleaded as a party. In Om Prakash Singh (supra) the factual background was entirely different. The writ petition had been admitted for hearing and the objection was sought to be taken at the time of final hearing. In Jain Plastic and Chemical Limited (supra) it was held as follows :

"3. Settled law- writ is not the remedy for enforcing contractual obligations it is to be reiterated that writ petition under Article 226 is not the proper proceeding for adjudicating such disputes. Under the law, it was open to the respondent to approach the Court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226.

21. We have gone through the pleadings in the writ application. No statement has been made by the respondents why the statutory alternate remedy either by way of a review or Appeal was not an efficacious remedy to justify the institution of the writ application directly.

22. The limitation provided under the Rules for preferring an Appeal is 60 days extendable by another period of 60 days. We find that the writ petition was filed within the period of the initial 60 days. In (1996) 6 SCC 199 [LQ/SC/2011/654] (Danda Rajeshwari v. Bodavula Hanumayamma and others). The writ petition was filed straightway avoiding alternate statutory remedy but within the period prescribed for instituting proceeding under the alternate remedy. The High Court declining jurisdiction under Article 226 relegated the party to the alternate remedy observing that if it was filed within three weeks from the date of disposal of the writ petition, the Tribunal shall not go into the question of limitation. The Supreme court upheld the reasoning of the High Court.

23. We therefore direct that if the respondent files an Appeal within a period of 60 days from today, the Tribunal shall decide the matter afresh without going into the question of limitation.

24. The order under Appeal dated 20.07.2012 is set aside for the aforesaid reasons.

25. The Appeal is allowed.