IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 WP(C).No. 12787 of 2008(V) -------------------------- CC.955/2007 of J.M.F.C. - I, KARUNAGAPPALLY .................... PETITIONER: --------------- M.SADIK, DIAMOND FOOD PRODUCTS PADA NORTH . KARUNAGAPALLY, KOLLAM DISTRICT BY ADV. SRI.S.A.RAZZAK RESPONDENTS: ------------------ 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, OLD MUNICIPAL OFFICE BUILDING, CHINNAKADA ,KOLLAM .01 2. THE REGIONAL PROVIDENT FUND COMMISSIONER BHAVISHYANIDHI BHAVAN, PATTOM P.O. THIRUVANANTHAPURAM 695 004 3. THE ENFORCEMENT OFFICER EPF ORGANISATION , DISTRICT OFFICE CHINNAKADA, KOLLAM 01 BY ADV. SRI.N.N.SUGUNAPALAN(SR.)-SC FOR R.1 TO 3 SMT.T.N.GIRIJA, SC,EPF ORGANISATION FOR R.1TO3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.12787 OF 2008 ---------------------------------------- Dated this the 3rd day of June, 2008 JUDGMENT The petitioner is the owner of an establishment covered under the Employees Provident Funds and Miscellaneous Provisions Act. He was assessed to contributions under the Act by passing Ext.P2 order under Section 7A . The petitioner has filed Ext.P3 application under Section 7B of the Act seeking review of Ext.P2 order. The same has been rejected by Ext.P9 order on the ground that the application under Section 7B was filed beyond the period prescribed under Para 79A of the Employees Provident Funds Scheme, 1952. Pursuant to dismissal of the 7B application, the respondents have initiated prosecution proceedings under the Act. The petitioner is challenging Ext.P9 order and the proceedings for prosecution. Originally, the writ petition was moved before the Court hearing criminal matters. That Court passed the following order. W.P.(c)No.12787/08 2 “I have heard the learned counsel for the petitioner in detail. The crux of the challenge is against Ext.P9 order. It is argued that criminal prosecution which are initiated must be stayed for the reason that Ext.P9 order is not proper. In short, the challenge primarily is against Ext.P9 order. Ext.P9 order must be challenged before the miscellaneous writ Court. Call before that Court next week.” Accordingly, the writ petition comes up before me. As observed by the learned Judge, essentially the petitioner is challenging Ext.P9 order. The petitioner’s contention is that there is no absolute bar in Para 79A in considering the applications filed belatedly and therefore the 1st respondent was bound to consider the 7B application on merits after condoning the delay caused on account of medical grounds. 2. I have heard the learned standing counsel for the Provident Fund Organisation also. Para 79A reads thus: “[79A. Filing application for review.- Any person aggrieved by an order made under sub-section (1) of section 7A and who desires to obtain a review of such order may apply for a review of that order, as provided in sub-section(1) of section 7B of the Act in Form 9 to the officer who passed such order: Provided that no application for review of an order will be entertained by the concerned officer, unless the application for review is submitted within 45 days from the date of making such order.” As per this Clause, an application under Section 7B has to be filed within 45 days from the date of making the order. It is W.P.(c)No.12787/08 3 also specifically provided therein that no application for review of an order will be entertained by the concerned officer unless the application for review is submitted within 45 days from the date of making such order. Admittedly, Ext.P3 application filed by the petitioner was beyond the period of 45 days. There is no provision in Para 79A to condone the delay in filing the application on any ground. I do not agree with the contention of the petitioner that there is no bar in considering the application filed beyond 45 days, if there are sufficient grounds to condone the delay. When the provision does not confer a power on the authority to condone the delay in filing the application, the authority could not have considered the petition filed beyond the period prescribed under Para 79A. Therefore, I do not find any merit in the challenge against Ext.P9. As far as the notices issued for initiating prosecution proceedings are concerned, it is for the petitioner to take his defences before the appropriate Criminal Court as and when the prosecution is launched. Without such right, this writ petition is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.12787/08 4