IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 WP(C).No. 20815 of 2010(B) -------------------------- PETITIONER(S): --------------- M.ABDUL AZEEZ, PROPRIETOR, ANZAR CASHEW COMPANY, CHATHINAMKULAM, CHANTHANATHOPPU P.O., KOLLAM- 691 014. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENT(S): --------------- THE REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, CHINNAKKADA, KOLLAM-691 001. BY ADV. SRI.V.V.SURESH,SC,EPF.ORGANISATION FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.20815 OF 2010 EXT.P1 TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT DT. 26.9.2008 EXT.P2 TRUE COPY OF THE REVIEW PETITION DATED 22.10.2008 FILED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P3 TRUE COPY OF THE NOTICE DATED 29.10.2008 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P4 TRUE COPY OF THE REPORT DATED 24.2.2009 SUBMITTED BY THE ENFORCEMENT OFFICER. EXT.P5 TRUE COPY OF THE COMMUNICATION DATED 27.4.2009 ADDRESSED BY THE RESPONDENT TO THE PETITIONER. EXT.P6 TRUE COPY O THE NOTICE DATED 8.1.2010 ISSUED BY THE RESPONDENT. EXT.P7 TRUE COPY OF THE ORDER DATED 23.6.2010 ISSUED BY THE RESPONDENT. //TRUE COPY// P.A. TO JUDGE. 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.