IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19565 of 2008(D)
1. C. SANTHAMMA, KARTHIKA UTHRAM
... Petitioner
Vs
1. REGIONAL PROVIDENT FUND COMMISSIONER,
... Respondent
2. ASSISTANT PROVIDENT FUND
For Petitioner :SRI.D.S.SREEKUMARAN
For Respondent :SRI.N.N. SUGUNAPALAN, SC, P.F.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :29/07/2008
O R D E R
S.SIRI JAGAN, J
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W.P(C)No.19565 of 2008
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Dated this the 29th day of July, 2008.
J U D G M E N T
The petitioner challenges Ext.P7 order passed by the 2nd
respondent under Section 7A of the Employees’ Provident Funds
and Miscellaneous Provisions Act, whereby he has decided that
the petitioner’s establishment is liable to be covered under the
Act and directed the petitioner to comply with the provisions of
the Act and scheme.
2. The petitioner’s contention is that the petitioner is not
liable to be covered for want of sufficient number of employees
for such coverage. She disputes the Mahazar prepared by the
Enforcement Officers wherein names of 28 persons have been
included as employees of the petitioner. According to the
petitioner, all of them are not employees of the petitioner. She
also submits that the details and addresses of the persons are
not mentioned in the Mahazar except their names. The
petitioner also raises a specific contention that Ext.P7 order has
been passed by one of the enforcement officers who had
conducted the inspection of the petitioner’s premises on his
W.P(C)No.19565 of 2008 – 2 –
promotion as Assistant Provident Fund Commissioner and passed
Ext.P8 Mahazar,which was the basis for the decision in Ext.P7.
According to the petitioner the 2nd respondent has acted as a
judge in his own cause, in so far as he prepared Ext.P8 Mahazar
and passed Ext.P7 order.
3. The learned Standing Counsel appearing for the
Provident Fund Organisation on the basis of written instructions
received by him submits as follows:
“The allegation that the person who adjudicated the
matter and the person who drew the Mahazar is one and
the same is levelled with a motive of diverting the
attention from the original facts to unimportant technical
procedures. The inquiry Officer is a quasi – judicial
authority and as such inquiry shall deemed to be a judicial
proceedings in all sense. His multifunctional role as APFC
or other position he was holding or any other job he had
executed by virtue o his Official position prior to this
enquiry must not had any bearing on the inquiry. The
inquiry was solely depend on the documentary evidence or
records produced before him where decisions were not
taken leasurely but truly, judiciously, objectively and
impartially.
The habitual practice of the Employer to file various
Writ petition before the Hon’ble Court for escaping from
the statutory provisions of the Society Security Act and for
denying the Labour benefits of the poor class of
employees may be brought to the notice of the Hon’ble
Court and pray for the dismissal of the petition at the first
hearing itself allowing the statutory Organisation of
E.P.F.O to secure prompt compliances from the petitioner
establishment and to allow the Legal Costs for the
Respondent E.P.F.O.”
W.P(C)No.19565 of 2008 – 3 –
4. I am of opinion that the stand of the 2nd respondent is
totally against the basic principles of natural justice. A person
cannot be a judge in his own cause. Here, admittedly the person
who has passed Ext.P7 order conducted the inspection and is a
signatory to Ext.P8 Mahazar. That being so he cannot have
validly passed Ext.P7 order on the basis of the Mahazar prepared
by himself. Therefore, Ext.P7 is in violation to the principles of
natural justice. Therefore, Ext.P7 is quashed. It would be open
to the 1st respondent to either decide the matter himself afresh
or authorise another Competent Assistant Provident Fund
Commissioner to pass fresh orders under Section 7A after
affording an opportunity of being heard to the petitioner which
shall include opportunity to adduce the evidence also.
The writ petition is allowed as above.
S.SIRI JAGAN, JUDGE
rhs