IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20815 of 2010(B)
1. M.ABDUL AZEEZ, PROPRIETOR,
... Petitioner
Vs
1. THE REGIONAL PROVIDENT FUND COMMISSIONER
... Respondent
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :SRI.V.V.SURESH,SC,EPF.ORGANISATION
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :18/01/2011
O R D E R
P.N. RAVINDRAN, J.
-------------------------------
W.P.(C) No.20815 of 2010
-------------------------------
Dated this the 18th day of January, 2011
J U D G M E N T
The petitioner is the proprietor of a cashew factory, an
establishment covered under the provisions of the Employees
Provident Fund & Miscellaneous Provisions Act, 1952 (hereinafter
referred to as ‘the Act’ for short). The respondent herein conducted
an enquiry under section 7A of the Act for the purpose of determining
the contribution due from the petitioner for the period from August,
2000 to May, 2008. The petitioner did not produce the entire records.
By Ext.P1 order passed on 26.9.2008, the first respondent estimated
the contribution payable by the petitioner as Rs.1,03,77,094/-. The
petitioner thereupon filed Ext.P2 review petition under section 7B of
the Act. The then Regional Provident Fund Commissioner considered
Ext.P2 application for review and issued Ext.P3 notice to the petitioner
calling upon him to be present for a hearing on 14.11.2008 to consider
the admissibility of the review petition. The petitioner appeared before
the Regional Provident Fund Commissioner who heard him and called
for a report from the Enforcement Officer. The Enforcement Officer in
turn submitted Ext.P4 report dated 24.2.2009. Thereafter, the then
Regional Provident Fund Commissioner issued Ext.P5 notice informing
the petitioner that he has decided to review the order passed under
W.P.(C) No.20815 of 2010
2
section 7A of the Act. The petitioner was called upon to produce all
the relevant documents before the Enforcement Officer for
verification. It appears that the officer who issued Exts.P3 and P5
notices retired from service without completing the review
undertaken by him. His successor in office thereafter issued Ext.P6
notice dated 6.1.2010 informing the petitioner that a hearing for
deciding the admissibility of the review petition filed under section 7B
of the Act will be held on 12.1.2010. The petitioner attended the
hearing. The respondent thereafter passed Ext.P7 order rejecting the
application for review. Ext.P7 order is under challenge in this writ
petition.
2. The main contention raised by the petitioner is that
the respondent has not taken into account the fact that a hearing on
the admissibility of the review petition was once held, a report from
the Enforcement Officer was called for and the Regional Provident
Fund Commissioner then in office had decided to review the order
passed under section 7A of the Act. The learned counsel submitted
that in such circumstances, the Regional Provident Fund
Commissioner who passed Ext.P7 order ought to have considered the
report submitted by the Enforcement Officer and decided the
W.P.(C) No.20815 of 2010
3
application on the merits, instead of rejecting it at the threshhold.
3. The learned standing counsel appearing for the
Employees Provident Fund Organisation has filed a statement dated
10.11.2010 opposing the writ petition. It is stated that the petitioner
was afforded adequate opportunity before the order under section 7A
was passed, that the respondent, on an examination of the matter,
was satisfied that the petitioner has not made out a case warranting
the exercise of the power of review under section 7B of the Act and
therefore the application was rejected.
4. I have considered the submissions made at the Bar by
the learned counsel on both sides. A reading of Ext.P7 order
indicates that the respondent did not take note of Exts.P3 and P5
notices and Ext.P4 report submitted by the Enforcement Officer when
he passed the impugned order. The Regional Provident Fund
Commissioner who was in office in October 2008 had heard the
petitioner on 14.11.2008 on the admissibility of the review petition.
Thereafter, a report was admittedly called for and Ext.P4 report was
submitted by the Enforcement Officer. Thereafter, the Regional
Provident Fund Commissioner heard the review petition on the merits
on 12.1.2010. The respondent has no case that the petitioner did not
W.P.(C) No.20815 of 2010
4
appear before the Regional Provident Fund Commissioner for hearing
on the admissibility on 14.11.2008 or for the hearing on the merits on
12.1.2010. The respondent has not denied the petitioner’s statement
that after the hearing on the admissibility, a report was called for and
it was submitted by the Enforcement Officer. There is however no
reference to these facts in Ext.P7 order. The respondent has
admittedly not considered the contents of Ext.P4 report. He did not
also hear the petitioner with reference to the said report. I am
therefore satisfied that the rejection of the petitioner’s application for
review without considering the merits of the petitioner’s contentions
with reference to Ext.P4 report cannot be sustained. The respondent
should have, in my opinion, considered Ext.P4 report and proceeded
to pass orders having due regard to the contentions raised by the
petitioner in Ext.P2 petition and the findings and observations made
by the Enforcement Officer in Ext.P4.
In the result, I allow the writ petition, quash Ext.P7 and
direct the respondents to pass revised orders on the merits on the
petitioner’s application under section 7B of the Employees Provident
Fund & Miscellaneous Provisions Act, 1952 having due regard to
Ext.P4 report, after affording the petitioner an opportunity of being
W.P.(C) No.20815 of 2010
5
heard. The respondent shall pass revised orders in the matter within
two months from the date of receipt of a certified copy of this
judgment. Until revised orders are passed by the respondent,
coercive steps to recover the amount determined in Ext.P1 order shall
stand stayed, in the event of the petitioner depositing with the
respondent the sum of Rs.10 lakhs within a period of one month from
today.
P.N. RAVINDRAN,
JUDGE.
nj.