THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.24276 of 2004 (Dt.31-3-2010) Between: Parimi Subbarayudu Enamel Slate Industries Rep. By its Proprietor Smt. P.Krishna Kumari R/o Markapur, Prakasam Distict. ….Petitioner A n d Assistant Provident Fund Commissioner Employees’ Provident Funds, Sub Regional Office, 3rd Lane, Krishna Nagar, Guntur and another ….Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.24276 of 2004 ORDER: The petitioner-Parimi Subbarayudu Enamel Slate Industries represented by its Proprietor Smt.P.Krishna Kumari filed this writ petition assailing the order dated 08.12.2004 passed by the Assistant Provident Fund Commissioner, Guntur on an application filed under Section 5 read with Section 29 of the Limitation Act and under Section 151 CPC. 2. The petitioner establishment is governed under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“the Act”, for brevity) and the scheme framed thereunder. The Assistant Provident Fund Commissioner, Guntur-1st respondent summoned the employer of the establishment under Section 7A of the Act for the purpose of determining the amount due under the Employees Pension Fund and Employees Deposit Linked Insurance Fund Contributions and administrative charges for the period from December, 1998 to April, 2004. The employer failed to appear before the Assistant Commissioner and thereupon, the Assistant Commissioner proceeded to determine the amounts due from the employer and issued Proceeding No.AP/23529/7A/SRO/GNT/ COMPIII/04/ 594, Dated 1.7.2004. The employer was directed to remit the amount to the respective Employees Provident Fund account Numbers at the State Bank of India within 7 days of the receipt of the assessment order. 3. The writ petitioner-employer filed a petition under Section 7B(1) of the Act read with Sections 114 and 151 and Order 9 Rule 13 CPC to set aside the ex parte order dated 01.7.2004 passed by the 1st respondent herein. The writ petitioner-employer also moved petition under Section 5 read with Section 29 of the Limitation Act and under Section 151 CPC to condone delay in filing petition to set aside the ex parte order dated 1.7.2004. The 1st respondent treated the petition as review of the order dated 01.7.2004 and proceeded to dismiss the application on the ground that the same is filed beyond the period of limitation. The order passed by the Assistant Provident Fund Commissioner-1st respondent reads as hereunder:- “ Sub : Review application u/s 7B filed by M/s Parimi Subbarayudu Enamel Slate Industries, Markapur – Regarding. Ref : Affidavit filed by Advocate for petitioner, dt.7.12.2004 -0- It is to inform that Sri T.Brahmanandam advocate of M/s.Parimi Subbarayudu enamel Slate Industries has applied for review of the order U/s 7A of the Act, dt.1.7.2004. She has not filed the review application in the required application and moreover it is filed beyond 45 days from the date of making such order. The Advocate has appealed for condoning the delay u/s 5 of the Limitation Act, 1963 read with U/s 29 of Section 151 CPC. The scheme clearly lays down the time of 45 days for filing the review application. Moreover the enquiry was continuing for two years and acknowledgment of adjournment notices were received even then employer failed to represent. Moreover there is no new facts put before to reopen the case. In view of the above, the application for review stands rejected.” Hence, this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari. 4. Rule nisi came to be issued on 27.12.2004. No counter has been filed by the respondents as on this day. 5. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents. 6. Learned counsel appearing for the petitioner submits that the petitioner filed petition before the 1st respondent to set aside t h e ex parte order dated 1.7.2009, but the 1st respondent construed it as a review petition under Section 7-B of the Act. A further submission has been made that the very conception of the 1st respondent treating the petition filed by the petitioner as review is contrary to the prayer sought for and therefore, the order impugned in the writ petition cannot be sustained. Learned counsel further submits that quoting wrong provision does not take away the jurisdiction of authorities/Court under the relevant provisions of the Act. In support of his submissions, reliance has been placed on the decision in State of Karnataka v. Krishnaji Srinivas Kulkarni and others[1]. Much emphasis has been laid on paragraph 6 of the cited judgment, which reads as hereunder:- “ As seen, admittedly the respondents as on March 1, 1974 did not have possession of the lands. The company lessee continued to hold the land. By operation of Section 6 though its lease had expired by efflux of time, the lease did not stand terminated. In other words, his possession remains juridical possession under the Act. Therefore, on its being prohibited to remain in possession, the company was enjoined under Section 79-B(2) to furnish declaration and accordingly he did furnish to the Tehsildar, though mistakenly done by quoting Section 66(1). Quotation of a wrong provision does not take away the jurisdiction of the authorities to inquire under Section 79-B(3) of the Act. The Tribunals, therefore, had jurisdiction to inquire into and publish the declaration as enjoined under Section 79-B(3) of the Act. The demised 600 acres land held by the company stood vested in the State free of encumbrances.” 7. Learned counsel appearing for the respondents supported the order assailed in this writ petition. 8. Indisputably, the petitioner filed petition before the 1st respondent to set aside the ex parte order dated 1.7.2004 in Enquiry No.82/2004. Of course, the petitioner filed three petitions before the 1st respondent. Firstly; petition under Section 5 of the Limitation Act, 1963 read with Section 29 of the Act and under Section 151 CPC, secondly; another petition under Section 7B(1) of the Act read with Section 114 and Order 9 Rule 13 CPC and lastly; petition under Section 8(e) of the Act and under Section 151 CPC. The reliefs sought for in the three applications need to be noted and they read as hereunder:- I “For the reasons stated in the accompanying affidavit, it is prayed that the Asst. Provident Fund Commissioner employees Provident Fund orgination may be pleased to set aside the ex parte order passed against this petitioner dated 1.7.04 in the enquiry matter number 82/04 of your file and to order for fresh enquiry on condoning the delay in filing this petition by 6/12/2004 in the interest of justice.” II “ 7(a) Hence, it is prayed that the Assistant P.F. Commissioner for employees Provident Fund may be kind enough to set aside the ex parte order dated 1/7/04 passed against the petitioner and to order for fresh enquiry in the above said enquiry matter (b) To stay all further proceedings against this petitioner in this enquiry © Not to initiate coercion steps against this petitioner pending disposal of this petition filed by this petitioner; (d) And to direct the recovery officer to stop all further proceedings against this petitioner pending disposal of this petition.” III “ For the reasons stated in the accompanying affidavit, it is prayed that the Asst. Provident Fund Commissioner employees Provident Fund origination may be pleased to order for stay of all further proceedings including recovery proceedings in the enquiry in the interest of justice pending enquiry in the main petition”. 9. All the prayers sought for in the above referred three applications are essentially to set aside the ex parte order dated 1.7.2004. But the 1st respondent treated the applications filed by the petitioner as review and proceeded to pass orders. The very conception of the 1st respondent treating the petitions as review of the order dated 1.7.2004 cannot be sustained. Hence the order impugned in the writ petition is set aside. 10. The writ petition is accordingly allowed setting aside the order dated 01.7.2004 passed in AP/23529/7A/SRO/GNT/ PRMI/COMP-III/04/594, Enquiry No.82/2004 and directing the 1st respondent to treat the petitions filed by the petitioner as petitions to set aside the ex parte order dated 1.7.2004 and pass appropriate orders in accordance with law. No costs. _____________________ B.SESHASAYANA REDDY, J Dt. 31.3.2010 Note:- Issue CC in one week (B/o) RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.24276 of 2004 (Dt.31-3-2010) [1] (1994)2 Supreme Court Cases 558