# State of U.P.15, Qavi Ahmad v. State of U.P. &

- **Citation:** (2021) 11 ILRA 333
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-15-qavi-ahmad-v-state-of-u-p-46538
- **Pages:** 6

## Headnote

A. Civil Law - Employees' Provident Funds and
Miscellaneous Provisions Act, 1952 - Sections
7-I & 7-O - Filing of Appeal - Pre-condition of
depositing the amount - Waiver - Cryptic and
non-speaking order - Validity challenged -
Held,
appellate
authority
was
under
an
obligation of law to apply its mind to the
grounds raised by the petitioner and pass a
reasoned order while determining the waiver /
reduction
of
the
pre-deposit
amount
as
contemplated under Section 7-O of the Act of
1952 - High Court set aside appellate order
declaring it cryptic and non-speaking order and
vitiated by non application of mind. (Para 14,
16 and 17)
Writ petition allowed. (E-1)

## Text

11 All. M/s PepsiCo India Holdings Pvt. Ltd. Vs. Employees Provident Fund Appellate Tribunal/CGIT & Ors.
333
cognizance/summoning orders on printed proforma
by filling up the blanks without an application of
judicial mind is objectionable and deserves to be
deprecated and set aside the said orders and matters
are remanded back to the concerned court to take
fresh cognizance. (Vide: Andul Rasheed & Ors. v.
State of U.P.15, Qavi Ahmad v. State of U.P. &
Ors.16, Naval Dey Bharti v. State of U.P. &
Ors.17, Dushyant Kumar v. State of U.P. &
Ors.18, Ashu Rawat v. State of U.P. & Ors.19,
Ram Kumar Singh & Ors. v. State of U.P. &
Ors.20, Vishnu Kumar Gupta & Ors. v. State of
U.P. & Ors.21, Ali Ashraf Quardri & Ors. v. State
of U.P. & Ors.22, Anuj Gupta v. State of U.P. &
Ors.23, Babu & Ors. v. State of U.P. & Ors.24,
Rinki Rastogi & Ors. v. State of U.P. & Ors.25,
Surendra Kumar and Ors. v. State of U.P. &
Ors.26, Sunil Tyagi v. State of U.P. & Ors.27,
Dharmraj & Ors. v. State of U.P. & Ors.28,
Pankaj Jaiswal v. State of U.P. & Ors.29, Rubina
Khan v. State of U.P. & Ors.30, Sanjay v. State of
U.P. & Ors.31, Suresh Babu v. State of U.P. &
Ors.32, Abhay Pratap Singh v. State of U.P. &
Ors.33, Israil and Ors. v. State of U.P. & Ors.34,
Saleem v. State of U.P. & Ors.35, Phoolwanti Devi
& Ors. v. State of U.P. & Ors.36, Sunil Kumar
Singh v. State of U.P. and Ors.37, Pramod Kumar
& Ors. v. State of U.P. & Ors.38)

23. It is a position of law that before a
Magistrate can be said to have taken cognizance of
an offence, it is imperative that he must take notice of
the accusations and apply his mind to the allegations
made in the police report. However, a Magistrate is
not required to pass a detailed reasoned order at the
time of taking cognizance on the charge sheet. But it
does not mean that an order of taking cognizance can
be passed just by filling up the blanks on a printed
proforma. A judicial order cannot be allowed to be
passed in a such manner.

24. After considering the facts and keeping in
mind the position of law, which have been discussed
above, I am satisfied that there is no indication on the
application of mind by the learned Magistrate in
taking cognizance. The Magistrate passed the
impugned order dated 18.9.2019 in a mechanical
manner on a printed proforma without applying the
judicial mind. Therefore, the impugned order is liable
to be set aside. The matter is remitted to the Chief
Judicial Magistrate to pass fresh cognizance order in
accordance with law after applying judicial mind
within two weeks after the production of the certified
copy of the judgment.

25. Before parting with the judgment, I am of
the view that considering the nature of the issue
which arose in the instant case, it would be just and
appropriate to direct all the District Judges, and Chief
Judicial Magistrates/Chief Metropolitan Magistrates
to ensure that the Judicial Magistrates/Judge shall not
pass the cognizance order on printed proforma while
taking cognizance under Section 190 of the Code.

26. A copy of the instant judgment shall be
transmitted by the Registry of this Court to all the
District Judges within one week for circulation to all
the judicial officers. The office is further directed to
enter the judgment in compliance Register
maintained for the purpose of the Court.

27. With the aforesaid observations, the present
application U/S 482, Cr.P.C. stands disposed off.
----------
(2021)12ILR A333
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 8935 of 2021

M/s PepsiCo India Holdings Pvt. Ltd.
 ...Petitioner
Versus
Employees
Provident
Fund
Appellate
Tribunal/CGIT & Ors. ...Respondents

Counsel for the Petitioner:
334 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Sunil Kumar Tripathi, Sri Devesh Tripathi, Sri
Sandeep Pandey

Counsel for the Respondents:
C.S.C., Sri Sachindra Upadhyay, Sri Udit Chandra

A. Civil Law - Employees' Provident Funds and
Miscellaneous Provisions Act, 1952 - Sections
7-I & 7-O - Filing of Appeal - Pre-condition of
depositing the amount - Waiver - Cryptic and
non-speaking order - Validity challenged -
Held,
appellate
authority
was
under
an
obligation of law to apply its mind to the
grounds raised by the petitioner and pass a
reasoned order while determining the waiver /
reduction
of
the
pre-deposit
amount
as
contemplated under Section 7-O of the Act of
1952 - High Court set aside appellate order
declaring it cryptic and non-speaking order and
vitiated by non application of mind. (Para 14,
16 and 17)
Writ petition allowed. (E-1)
(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri Sunil Tripathi, learned
counsel for the petitioner and Shri Udit Chandra,
learned counsel for the respondents.

2. The petitioner is aggrieved by the order
dated 11.01.2021 passed by the appellate
authority/Employees Provident Fund Appellate
Tribunal/CGIT, Shram Bhawan, ATI Campus,
Udyog Nagar, Kanpur under Section 7-I of the
Employees' Provident Funds and Miscellaneous
Provisions Act, 1952, admitting the appeal of the
petitioner subject to deposit of 50% of the dues.

3. Shri Sunil Tripathi, learned counsel for
the
petitioner
assailing
the
order
dated
11.01.2021 contends that the petitioner is not
liable to deposit any amount on filing of the
appeal for two reasons. Firstly only conditional
liability was fixed by the assessing authority
/Assistant
Provident
Fund
Commissioner,
Employees
Provident
Fund
Organization,
Varanasi. Secondly, the petitioner is not the
principal employer. Thirdly, the order dated
11.01.2021 passed by the appellate authority is
devoid of reasons.

4. Shri Udit Chandra, learned counsel for
the respondents could not dispute the fact that
the order 11.01.2021 passed by the appellate
authority/Employees Provident Fund Appellate
Tribunal, Kanpur is not supported by any
reasons. He submits that the petitioner is liable
to make the pre-deposit amount in terms of
Section 7-I of the Employees' Provident Funds
and Miscellaneous Provisions Act, 1952.

5. Heard learned counsel for the parties.

6. The assessing authority /Assistant
Provident
Fund
Commissioner,
Employees
Provident Fund Organization, Varanasi, by the
order dated 15.01.2020 rendered in proceedings
taken out under Section 7A of the Employees'
Provident Funds and Miscellaneous Provisions
Act, 1952 has found non payment of provident
fund dues to the eligible employees. The
assessing authority /Assistant Provident Fund
Commissioner,
Employees
Provident
Fund
Organization, Varanasi in the order dated
15.01.2020 found as follows:

"25. Now, therefore, I, Shahid Iqbal,
Assistant Provident Fund Commissioner in
exercise of powers conferred on me under
Section 7A of the Employees' Provident Funds
and Miscellaneous Provisions Act, 1952, having
regard to the facts of the case and considering
the submissions made before me/evidence on
record produced before me, hereby decide that
the Establishment, M/s Nishtha Enterprises
(together with M/s Nishtha Agency), Varanasi
has failed to deposit Provident Fund dues in
respect of its eligible employees amounting to
Rs.7,84,194/- (Rs. Seven Lakhs Eighty Four
Thousand One Hundred and Ninety Four only)
for the period October, 2011 to December, 2015.
The details of dues is delineated as under:
11 All. M/s PepsiCo India Holdings Pvt. Ltd. Vs. Employees Provident Fund Appellate Tribunal/CGIT & Ors.
335
Period
10/2011
to
12/2015
Total
Wages
A/
c I
A/c
II

A/c
X
A/c
XXI
A/
c
X
XI
I
Total
Total
Dues
30947
82
48
49
52
484
952
257
795
14525 30
9
78419
4
Total
Paid
NIL
NI
L
NIL NIL NIL
NI
L
NIL
Outstand
ing Dues
30947
82
48
49
52
266
12
257
795
14525 30
9
78419
4

26. I further order that the above
amount of Rs.7,84,194/- (Rs. Seven Lakhs
Eighty Four thousand one hundred and ninety
four only) assessed u/s 7A of the Act shall be
paid by the Establishment within 15 days of the
receipt of this order, failing which steps shall be
taken to recover the same in the manner as
provided u/s 8B to 8G of the said Act. As
Establishment has fulfilled the criterion for
coverage under the Act and has already been
issued a Code Number for compliance, the
Establishment shall be liable to pay the aforesaid
assessed dues. In case the Establishment fails to
do so, the Principal Employer shall be liable to
pay the aforesaid assessed dues."

7. Relevant provisions of the Employees'
Provident Funds and Miscellaneous Provisions
Act, 1952 (hereinafter referred to as the 'Act')
read with the Tribunal (Procedure) Rules, 1997
(hereinafter referred to as the 'Rules'), which
govern and regulate the filing and processing of
appeals, are extracted hereunder:

"Section 2(e) of the Act of 1952
"employer" means-

(I) in relation to an establishment which
is a factory, the owner or occupier of the factory,
including the agent of such owner or occupier, the
legal representative of a deceased owner or
occupier and, where a person has been named as a
manager of the factory under clause (f) of subsection (1) of section 7 of the Factories Act, 1948
(63 of 1948), the person so named; and

(ii)
in
relation
to
any
other
establishment, the person who, or the authority
which, has the ultimate control over the affairs of
the establishment, and where the said affairs are
entrusted to a manager, managing director or
managing agent, such manager, managing director
or managing agent."

"Section 7-I of the Act of 1952.
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."

"Section 7-O of the Act of 1952.
Deposit of amount due, on filing appeal.- No
appeal by the employer shall be entertained by a
Tribunal unless he has deposited with it seventyfive per cent of the amount due from him as
determined by an officer referred to in section 7A:

Provided that the Tribunal may, for
reasons to be recorded in writing, waive or reduce
the amount to be deposited under this section."

"Rule 7 of the Rules of 1997. Fee,
time for filing appeal, deposit of amount due
on filing appeal.- (1) Every appeal filed with
the Registrar shall be accompanied by a fee of
two thousand rupees to be remitted in the form
of crossed demand draft on a nationalised bank
in favour of the Registrar of the Tribunal and
payable at the main branch of that Bank at the
station where the seat of the said Tribunal is
situated."
336 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Any person aggrieved by a
notification issued by the Central Government or
an order passed by the Central Government or
any other authority under the Act, may within 60
days
from
the
date
of
issue
of
the
notification/order, prefer an appeal to the
Tribunal:

Provided that the Tribunal may, if it is
satisfied that the appellant was prevented by
sufficient cause from preferring the appeal
within the prescribed period, extend the said
period by a further period of 60 days :

Provided further that no appeal by the
employer shall be entertained by a Tribunal
unless he has [deposited with the Tribunal a
Demand Draft payable in the Fund and bearing]
75 per cent of the amount due from him as
determined under Section 7-A :

Provided also that the Tribunal may
for reasons to be recorded in writing, waive or
reduce the amount to be deposited under Section
7-O."

8. The Employees' Provident Funds
Scheme, 1952 also has a bearing on the
controversy, inasmuch as, it contemplates
responsibility of the principal employer to pay
the employer's contribution and also on behalf of
the employees employed by or through a
contractor. The provision is extracted hereunder:

"Para 30 of the Scheme of 1952.
Payment of contribution.-(1) The employer
shall, in the first instance, pay both the
contribution payable by himself (in this Scheme
referred to as the employer's contribution) and
also, on behalf of the member employed by him
directly or by or through a contractor, the
contribution payable by such member (in this
Scheme
referred
to
as
the
member's
contribution).

(2) In respect of employees employed
by or through a contractor, the contractor shall
recover the contribution payable by such
employee (in this Scheme referred to as the
member's contribution) and shall pay to the
principal employer the amount of member's
contribution so deducted together with an equal
amount of contribution (in this Scheme referred
to as the employer's contribution) and also
administrative charges.

(3) It shall be the responsibility of the
principal employer to pay both the contribution
payable by himself in respect of the employees
directly employed by him and also in respect of
the employees employed by or through a
contractor and also administrative charges.

[Explanation-For the purposes of this
paragraph
the
expression
administrative
charges" means such percentage of the pay
(basic wages, dearness allowance, retaining
allowance, if any, and cash value of food
concession admissible thereon) for the time
being payable to the employees other than an
excluded employee, and in respect of which
provident fund contributions are payable, as the
Central Government may, in consultation with
the Central Board and having regard to the
resources, of the fund for meeting its normal
administrative expenses, fix.]"

9. The provision for pre-deposit amount is
a mandatory pre-requisite for entertaining the
appeal.
However,
the
appellate
authority/Employees Provident Fund Appellate
Tribunal/CGIT, Nagar, Kanpur has been vested
with powers under Section 7-O of the Act of
1952 read with Rule 7 of the Rules of 1997 to
waive or reduce the amount.

10. In the impugned order dated
11.01.2021, the appellate authority/Employees
Provident
Fund
Appellate
Tribunal/CGIT,
Nagar, Kanpur admitted the appeal subject to
deposit of 50% of the dues.

11. The provisions of Section 7-O of the
Act of 1952 read with Rule 7 of the Rules of
1997 shall apply whenever an appeal is preferred
by the employer. In fact as seen earlier the pre-
11 All. M/s PepsiCo India Holdings Pvt. Ltd. Vs. Employees Provident Fund Appellate Tribunal/CGIT & Ors.
337
deposit amount is a necessary pre-condition for
entertaining the appeal.

12. The nature of directions issued upon an
appellant by the assessing authority/Assistant
Provident
Fund
Commissioner,
Employees
Provident Fund Organization, Varanasi in the
first instance does not exclude the employer /
appellant from the embrace of Section 7-O of
the Act of 1952 requiring pre-deposit while
filing the appeal.

The assessing authority has found that
the petitioner is a principal employer. The said
finding is in issue before the appellate
authority/Employees Provident Fund Appellate
Tribunal, Kanpur and the petitioner has raised a
ground to that effect in the appeal. The defence
of an employer/appellant in appeal does not
cease
the
applicability
of
the
statutory
requirement of making the pre-deposit while
filing the appeal.

13. Needless to add, the appellant may raise
such grounds while making an application for
reduction or waiver of the pre-deposit amount.
Such application shall be considered on merits.
There is one clarification. A full waiver granted by
the appellate authority in the facts of a case merely
reduces the pre-deposit amount to zero but the
appellant remains within the ambit of Section 7-O
of the Act of 1952. The first two submissions of
behalf of the petitioner are decided in above terms.

14. There is merit in the third submission of
Shri Sunil Tripathi, learned counsel for the
petitioner that the order passed by the appellate
authority is a cryptic one and is non speaking. The
petitioner had submitted an application containing
grounds for waiving the pre-deposit amount.

15. Under the proviso to Section 7-O of the
Act of 1952, the Tribunal may waive or reduce
the pre-deposit amount for reasons to be
recorded in writing.

16. The appellate authority/Employees
Provident
Fund
Appellate
Tribunal/CGIT,
Nagar, Kanpur was under an obligation of law to
apply its mind to the grounds raised by the
petitioner and pass a reasoned order while
determining the waiver / reduction of the predeposit amount as contemplated under Section
7-O of the Act of 1952.

17. A perusal of the order dated
11.01.2021
passed
by
the
appellate
authority/Employees Provident Fund Appellate
Tribunal/CGIT, Nagar, Kanpur shows that the
appellate authority neglected to consider the
grounds raised for waiver of the pre-deposit
amount and failed to return any finding thereon.
The order of the appellate authority is bereft of
reasons. The order dated 11.01.2021 passed by
the appellate authority is vitiated by non
application of mind.

18. In the wake of preceding discussion,
this Court finds that while passing the order
dated 11.01.2021, the appellate authority has
failed to discharge its obligations under Section
7-O of the Act of 1952. The order dated
11.01.2021
passed
by
the
appellate
authority/Employees Provident Fund Appellate
Tribunal/CGIT, Nagar, Kanpur is liable to be set
aside and is set aside.

19. The matter is remitted to the appellate
authority/Employees Provident Fund Appellate
Tribunal/CGIT,
Nagar,
Kanpur
with
the
following directions:

I. The appellate authority/Employees
Provident
Fund
Appellate
Tribunal/CGIT,
Nagar, Kanpur, shall decide the application for
waiver of pre-deposit amount made by the
petitioner upon independent application of mind
and consistent with the observations made in this
judgement and as per law.

II. The exercise shall be completed
within a period of two months from the date of
338 INDIAN LAW REPORTS ALLAHABAD SERIES
receipt of copy of this order downloaded from
the official website of the High Court of
Judicature at Allahabad along with fresh copy of
representation. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the official
website of High Court Allahabad and shall make
a declaration of such verification in writing.

III. The petitioner shall be given an
opportunity of hearing before any order is
passed on the application for waiver made by the
petitioner.

20. The writ petition is allowed to the
extent indicated above.
----------
(2021)12ILR A338
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2019

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 68553 of 2015

Ram Nath @ Ram Nath Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shiv Shankar Pd Gupta, Sri Sunil Kumar
Dubey

Counsel for the Respondents:
C.S.C., Sri Bal Mukund Singh, Sri Sunil Kumar
Chaudhari, Sri Anil Bhushan

A. Civil Law - Fair price shop - Cancellation -
GO dated 17.08.2002 - Condition no. 10-Gha -
License obtained by the petitioner concealing
the criminal case pending against him - Effect
- Held, the petitioner having not disclosed the
pendency of the criminal case in which he was
already facing charge sheet, the petitioner
conveniently and deliberately concealed this
fact and this conduct of his amounts to a fraud
- The petitioner would not be entitled to any
benefit coming out of the same. His fair price
shop license has rightly been cancelled. (Para
17 and 18)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Smt. Raj Kumari Singh Vs St. of U.P. & ors.; 2011
(3) ALJ 140
2. Misc. Single No. 8033 of 2013; Bajrangi Tiwari Vs
St. of U.P. & ors. decided on 05.03.2018
3. Shrishti Dhawan Vs Shaw Bros; (1992) 1 SCC 534 :
AIR 1992 SC 1555
4. Meghmala Vs G. Narasimha Reddy; (2010) 8 SCC
383
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard learned counsels for the parties.

2. By means of present writ petition, the
petitioner has challenged the order dated
11.08.2014, whereby, the allotment of fair price
shop of the petitioner has been cancelled as well
as the order dated 27.11.2015 passed by the
appellate rejecting the appeal.

3. Briefly stated facts of the case are that
the petitioner is a resident of village Gaura,
Block Meh Nagar, District Azamgarh applied
for grant of fair price shop pursuant to the
advertisement issued
on
10.08.2013.
The
condition as contained in the advertisement
regarding the eligibility issued by the SubDivisional Magistrate in the advertisement dated
10.08.2013 were five in nature; (i) a candidate
must have the available money of Rs. 40,000/-
so that pursuant to the allotment he could lift the
commodities; (ii) must be of general good
reputation; (iii) must be educated enough to
maintain the daily business transactions; (iv)
must be of 21 years of age and there must not be
any other shop allotted to any other member of
his family; and (v) must be permanent resident
of the village.