IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 22367 of 2011(U) -------------------------- PETITIONER: --------------- MAR IVANIOS IDUSTRIAL TRAINING CENTRE, SEETHATHODE, PATHANAMTHITTA, REP. BY ITS DIRECTOR. BY ADV. SRI.BLAZE K.JOSE RESPONDENT(S): --------------- 1. ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, BHAVISHYA NIDHI BHAVAN, PATTOM, THIRUVANTHAPURAM - 695 003. 2. THE RECOVERY OFFICER, PROVIDENT FUNDS, BHAVISHYA NIDHI BHAVAN, P.B. NO. 1016, PATTOM PALACE.P.O, THIRUVANANTHAPURAM-695 003. ADV. SMT.T.N.GIRIJA, SC, E.P.F. FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 22367/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE NOTICE NO.KR/TVM/22726/Enf.I(5)/08 DATED 4.7.2008 EXT.P2 : COPY OF THE OBJECTION FILED ON BEHALF OF THE ITC DATED 20.11.2009 EXT.P3 : COPY OF THE ORDER NO.KR/22726/Enf.I(5)/2010/5966 DATED 30.7.2010 EXT.P4 : COPY OF THE SAID PETITION DATED 20.9.2010 EXT.P5 : COPY OF THE REVIEW PETITION FILED UNDER SECTION 7B OF THE EPF AND MP ACT BEFORE THE 1ST RESPONDENT RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 22367 OF 2011 -------------------------- Dated this the 17th day of August, 2011 J U D G M E N T The petitioner is an Industrial Training Centre run by the Malankara Catholic Educational Society of the Arch Diocese of Thiruvananthapuram and Pathanamthitta. The said society is running an Industrial Training Centre at Thiruvananthapuram. Alleging that the employees of the Industrial Training Centre at Pathanamthitta should have also been covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for short), the first respondent issued Ext.P1 notice calling upon the Director of the petitioner institute to remit contributions in respect of the 19 employees of the establishment with effect from 1.8.1998. The petitioner filed objections. Thereupon an enquiry under section 7A of the Act was conducted with notice to the petitioner. By Ext.P3 order passed on 19.5.2010, which was endorsed for communication to the petitioner on 30.7.2010, the first respondent held the petitioner liable to pay the sum of Rs.7,39,956.80 by way of contribution to the Employees Provident Fund. The petitioner submitted Ext.P4 representation before the first respondent stating that during the period from August 1998 to May 2008 no amount of contribution was deducted from the salary of the employees, that the employees had received their full salary and in such circumstances the WPC No.22367/2011 2 share of contribution that ought to have been deducted from the employees may be waived. The petitioner also pointed out that the establishment is running at a loss. The petitioner thereafter filed Ext.P5 application dated 11.8.2011 under section 7B of the Act before the first respondent seeking a review of Ext.P3. In this writ petition, the petitioner prays for an order directing the first respondent to consider Ext.P4 petition and Ext.P5 review petition on the merits and keep all further proceedings pursuant to Ext.P3 order in abeyance till a decision is taken on Ext.P4 petition and Ext.P5 review petition. 2. Ext.P3 is an order passed by the first respondent under section 7A of the Act. Under section 7B of the Act, the petitioner was entitled to seek a review of the said order as the petitioner had not preferred an appeal under the Act. Section 7B stipulates that if any new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the petitioner 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, the petitioner can apply for a review of the order. Sub section (2) of section 7B stipulates that every application for review shall be filed in such form and manner and within such time as may be specified in the Scheme. Paragraph 79A of the Employee Provident Fund Scheme, 1952 stipulates that an application for review shall be in Form 9. WPC No.22367/2011 3 The proviso to paragraph 79A stipulates that no application for review will be entertained unless it is submitted within 45 days from the date of making such order. 3. Ext.P4 petition is admittedly not one applied in Form 9 as stipulated in paragraph 79A of the Scheme. The petitioner has not in Ext.P4 petition set out any new and important matter or evidence which was not within his knowledge at the time when the order was passed. As the employer, the petitioner cannot claim ignorance of the fact that the employees’ share of contribution was not deducted from the employees. Therefore it cannot be said that the petitioner has made out a case for seeking a review of Ext.P3 order on that ground. Therefore Ext.P4 cannot be treated as an application for review under section 7B of the Act. Ext.P5 application for review was filed only long thereafter. By then, the period of limitation prescribed for filing a review petition had expired. The petitioner received a copy of Ext.P3 order in August, 2010. Ext.P5 application for review was filed only one year later. Under the provisions of the Act and the Scheme the first respondent does not have the power or authority to condone the delay in filing an application for review. Such being the situation, the reliefs prayed for by the petitioner cannot be granted. The writ petition fails and is accordingly dismissed. After the writ petition was dismissed, the learned counsel appearing WPC No.22367/2011 4 for the petitioner prayed for a reasonable time to pay the amount demanded in Ext.P3 order. The learned counsel submitted that the establishment is presently running at a loss and unless a reasonable time is given, the petitioner will have to close down the establishment. Smt.T.N.Girija, learned standing counsel appearing for the respondents submitted that the organisation has no objection to a reasonable time being granted to the petitioner to pay the amount demanded in Ext.P3 with interest. In such circumstances, even while dismissing the writ petition, I am inclined to grant the petitioner three months' time to pay the amount demanded in Ext.P3 order. The petitioner shall pay the said amount in three equal monthly instalments commencing from the 1st of September, 2011. The second instalment shall be paid on the 1st of October, 2011 and the third instalment on the 1st of December, 2011. Needless to say, if the petitioner commits default in paying any two consecutive instalments, it will be open to the respondents to take steps to recover the amount due in lump. P.N.RAVINDRAN, (JUDGE) vps