High Court Kerala High Court

M.Abdul Azeez vs The Regional Provident Fund … on 18 January, 2011

Kerala High Court
M.Abdul Azeez vs The Regional Provident Fund … on 18 January, 2011
       

  

  

 
 
  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.