THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO.29797 of 2011 Dated: 9.11.2011 Between: M/s. Aparna Constructions and Estates Pvt. Ltd., rep., by its Vice President. ..Petitioner And 1. The Employees Provident Fund Organization, Hyderabad and another. ..Respondents. This Court made the following: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO.29797 OF 2011 ORDER Heard the learned Counsel for the petitioner and Sri R.N. Reddy, learned Standing Counsel for the respondents. This writ petition is directed against the order of the Regional Provident Fund Commissioner-II (C & R), Regional Office, Hyderabad, passed under Section 7-A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (for short ‘the Act’), determining the EPF contributions payable by the petitioner. The primary grievance of the petitioner is that there was no adequate opportunity to the petitioner and notwithstanding its detailed explanation dated 21.9.2011 filed before the learned Commissioner requiring to furnish necessary information for enabling the petitioner to submit proper reply, and without issuing notice to the concerned transport contractors, the 1st respondent passed the impugned order. Learned Counsel for the petitioner also states that the said representation dated 21.9.2011 was not duly considered by the Commissioner and the order also suffers from failure to follow the principles of natural justice on the ground that though the enquiry was completed on 16.6.2011, the learned Commissioner has relied upon the report of the Squad of Enforcement Officers dated 5.10.2011, which is subsequent to the last hearing and the petitioner did not have adequate opportunity to plead against adverse findings therein. The rest of the contentions are on the basis of the liability and reliance was also placed upon the decision of the Supreme Court in Food Corporation of India Vs. Provident Fund Commissioner and another[1]. Learned Standing Counsel on the other hand contends that it is a matter where the petitioner has to approach appellate forum and urge all the contentions, which deal with factual aspects and all those issues, which are for the first time raised in this writ petition, cannot be gone into by this Court. Since the impugned order is one passed under Section 7-A of the Act, it is appropriate to extract Section 7 ‘A’, Section 7 (A)(4) & 7 (B) of the Act: Section 7-A (1) : The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner or any Assistant Provident Fund Commissioner may, by order ---- (a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and (b) determine the amount due from any employer under any provision of this Act, the Scheme or the Pension scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary. Section 7-A (4): Where an order under sub-section (1) is passed against an employer ex parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show-cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry: Provided that no such order shall be set aside merely on the ground that there has been irregularity in the service of the show cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer. Section 7-B: Review of orders passed under Section 7- A: (1) Any person aggrieved by an order made under sub- Section (1) of Section 7-A, but from which no appeal has been preferred under this Act, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of such order may apply for a review of that order to the officer who passed the order: Provided that such officer may also on his own motion review his order if he is satisfied that it is necessary so to do on any such ground. Keeping in view the principal contentions of the petitioner that there was no adequate opportunity to it to defend claim against it as well as the contentions that certain materials are relied upon by the learned Commissioner behind back of the petitioner subsequent to the conclusion of the enquiry are concerned, the petitioner’s case would justify reconsideration of the order impugned either under Section 7-A (4) and 7 B of the Act. Learned Standing Counsel for the respondents even otherwise fairly states that if the petitioner makes an application for reconsideration of the order, the learned Commissioner would apply his mind and reconsider and pass appropriate order after duly redressing the grievance of the petitioner and therefore, there is no reason for the petitioner to apprehend that adequate opportunity and consideration of their legitimate defences will not be taken into account by the Commissioner. In the circumstances, without expressing any opinion on the merits of the claim raised by the petitioner in this writ petition, I deem it appropriate to relegate the petitioner to the learned Commissioner to enable the learned Commissioner to reconsider and pass a fresh order on the issue involved. The petitioner, therefore, shall be at liberty to make appropriate application under Section 7-A (4) &/or 7-B of the Act, within two weeks, with all material documents so that the Commissioner shall reconsider the impugned proceedings after giving due and adequate opportunity to the petitioner and pass appropriate orders thereon, in accordance with law. It is needless to say that till such order is passed, the impugned orders shall not be given effect to. Accordingly, the writ petition is disposed of. No order as to costs. ______________________ VILAS V. AFZULPURKAR,J Dated: 9.11.2011 Nn THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO.29797 OF 2011 09.11.2011 [1] 1990(1) SCC 68